PEOPLE v. EID

Appellants, Reynaldo Junior Eid and Alaor Docarmo Oliveira, Reply to Supplemental Brief

Cal.April 17, 2014

SUPREME CUJKE COPY SUPREME COURT PILED LAW OFFICESOFSIRI SHETTY APR 17 2014 PMB 421 SANDOROE Frank A. McGuire Clerk reams Deputy shetty208812@gmail.com April 7, 2014 Frank A. McGuire Court Administrator and Clerk Supreme Court of California 350 McAllister Street San Francisco, CA 94102 Re: People v. Reynaldo Junior Eid et. al. California Supreme Court, Case No. S211702 Fourth Appellate District, Division Three, Case No. G046129 Orange County Superior Court, Case No. 0SHF210] Dear Mr. McGuire: On March 19, 2014,this Court invited the parties to serveand file simultaneousletter briefs on or before April 1, 2014, and simultaneousreply letter briefs on or beforeApril 7, 2014, addressing the significance,ifany, ofPeople vy. Solis (2014) 224Cal.App.4th 549 to the instant case. On March 28, 2014 appellants Eid and Oliveirasubmitted a joint letter brief. On that same date, the Attorney General submittedits letterbrief (hereinafter “RLB”). Appellants’s joint reply letter brief follows. ARGUMENT I. Consistent with Penal Code Section 1159, Relevant Precedent From This Court, and Sound Public Policy, People v. Solis Persuasively Holds that aDefendant May Not Sustain More than One Conviction For a Single Charged Crime! As Solis recognizes, neither section 1159, caselaw, norpublic policy supports 1All further statutory references will be to the Penal Code, unless otherwise noted. 1 LAW OFFICES OF SIRI SHETTY PMB 421 415 LAUREL STREET, SAN DIEGO, CA 92101 Tel: (619) 810-7625 Fax: (619) 955-6954 shetty208812@gmail.com respondent’s contention that the numberofconvictions may exceed the number of charges. Indeed, the rule endorsed by respondent would announce an unexpected departure from common understanding andpractice.It also is inconsistent with People v. Navarro (2007) 40 Cal.4th 668, and implicates a defendant’s right to notice of the number of convictions he maysustain. Finally, as Solis illustrates, respondent’s position would lead to absurd consequences, such as a defendant sustaining twostrike convictions where only one was charged. In short, contrary to respondent’s claim, Solis underscores the soundnessofpermitting only one conviction for each charged crime, and thus, supports the decision of the Court ofAppeal in the present case. A. Navarro supports the one for one rule adopted by Solis and the Court of Appeal in the present case In holding that section 1159 does not permit multiple convictions for uncharged lesser offenses based on a single charged crime, People v. Solis, supra, declined, as the Court ofAppeal did here, to interpret “any offense” underthat statute to include “any offenses.” (Jd. at pp. 556-557.) Rather, citing People v. Navarro (2007) 40 Cal.4th 668, the Solis court concluded that the singular language did not include the plural, notwithstanding the contrary admonition provided under section 7. (See ibid.) In relying upon Navarro to reach such conclusion, neither Solis nor the Court of Appealin the instant case erred. (RLB 3.) “Although Navarro did not arise in the same procedural context as Solis’s . . . case [or the instant case], much ofNavarro's reasoning may be applied to the multiple conviction issues raised here.” (Solis, 225 Cal.App.4th at p. 556.) For example, Navarro likewise involved an issue of statutory interpretation: whethersections 1181, subdivision 6 and 1260, which were phrased in the singular, permitted a judge to modify a judgmentto reflect two lesser included offenses upon finding the evidence insufficient to support the single charged offense. (Navarro, supra, 40 Cal.4th 668.) Based in part on the historical application and understanding of such statutes as only permitting a one for one modification, this Court declined to apply section 7 to read the singular languageto include the plural, observing that “[g]eneral terms should be so limited in their application as not to lead to injustice or oppression or an absurd consequence.” (/d. at p. 680.) As Solis concluded, although Navarro involved the interpretation of different 2 LAW OFFICESOF SIRI SHETTY PMB 421 415 LAUREL STREET, SAN DIEGO, CA 92101 Tel: (619) 810-7625 Fax: (619) 955-6954 shetty208812@gmail.com statutes, “its ‘one-for-one’ analysis makes equalsense here.” (Solis, supra, 224 Cal.App.4" at p. 560.) As with the statutes at issue in Navarro, “[n]o case has interpreted [section1159] to allow convictions ofmultiple lesser offenses to result from one chargedoffense.” (Solis, supra, 224 Cal.App. at pp. 556-557.) And “the statutory scheme does notdisclose anylegislative intent to allow two convictionsto result from one chargedoffense[.]” (/d. at p. 557.) In addition, although a defendant mayconsentto the jury’sconsideration oflesser related offenses, that does not necessarily include consentto“being convicted oftwo separate offenses stemming from onegreater, especially giventhat commonpractice has never anticipated such a result.”(Id. at p. 559.) Thus, whereneither caselaw norhistorical practice supported such interpretation, Solis held thatsection 1159 did not authorize more than one uncharged conviction for a single chargedcrime. (Id. at pp. 556-559.) That Solis also found Navarro persuasive in reaching this conclusionfurtherunderscores that the Court ofAppeal in the present case properly relied on that decision.Although respondentasserts that Solis merely presents “another example where areviewing court wrongly extrapolated” from Navarro (RLB 2), it offers no persuasivereason to justify permitting “a jury to do what the judge maynot,i.e.,to conclude that theevidencedoes not sustain a conviction on the greater offense, but then to convict on morethan onelesser included offense.” (Oliveira ABOM 12, quoting Slip. Op. at p. 12.) Asappellants observed (Oliveira ABOM 12), although a jury’sguilty verdict on a greatercharged offense necessarily implies that it returned convictions on ail uncharged includedoffenses, Navarro nevertheless recognizes that permitting a judge to modify suchjudgmentto reflect more than one conviction would amountto a significant “departure inour criminal jurisprudence and an even more startling innovation.” (Navarro, supra, 40Cal.4th at p. 680, quotations and citations omitted. ) Thus, regardless of whetherit isimposedby ajudge or found by a jury, a judgmentreflecting twolesser convictionsarising from one charged crime must be deemed unauthorized. In short, Navarro remainsapposite, and supports the interpretation of section 1159adopted by Solis and the Court ofAppeal in the instant case. LAW OFFICES OF SIRI SHETTY PMB 421 415 LAUREL STREET, SAN DIEGO, CA 92101 Tel: (619) 810-7625 Fax: (619) 955-6954 shetty208812@gmail.com B. recognized by Solis, a one for one rule protects a defendant’s right to notice of the number of convictions he may sustain In holding that section 1159 does not allow the numberofconvictions to exceed the numberofcharges, Solis observed that“[t]he ramifications of allowing two convictions to stem from one are also significant.” (Solis, supra, 224 Cal. App.4th at p. 559.) For example,in that case, the defendant sustainedtwostrike convictions where he only had been chargedwith one. (/d. at p. 559.) As the appellate court stated, “a defendant who suffers two unchargedstrike convictions from a single count, as opposed to only a single chargedstrike offense, faces significantly different potential consequencesin future criminal prosecutions.” (/d. at p. 559.) Indeed, “[t]he impact upon a future conviction is momentous — a secondstrike offender may face a doubled sentence, while a third strike offenderfaces a potential life sentence.” (Jbid.) In recognizing that two strike convictions arising from a single charged crime may negatively impact a defendantin future criminal proceedings, Solis did not, as respondent contends (RLB 4-5), contravene this Court’s decision in People v. Sloan (2007) 42 Cal.4th 110. In Sloan, the defendant was charged with various convictions and enhancements arising from a domestic violence incident, including corporal injury on a spouse, with a prior conviction for the same offense (§ 273.5, subd. (e)(1)), assault by means offorce likely to produce great bodily injury (§ 245, subd. (a)(1)), and battery with serious bodily injury (§ 243, subd. (d)), as well as enhancements on those offenses for great bodily injury. On appeal, the defendant argued that the assault and battery crimes becamelesser included offenses ofthe corporalinjury offense as a result of the great bodily injury enhancement foundtrue asto the latter crime. Thus, he asserted that the judicially created rule against necessarily included offenses remained applicable, and required vacatur ofthe assault and battery convictions.(Jd. at p. 115.) The Court of Appeal agreed, holding that it was appropriate to consider enhancements in determining whethera particular offense implicated the rule prohibiting conviction of both a greater andlesser crime. (Sloan, supra, 42 Cal.4th at p. 115.) It “also found that an additional factor — the potential for future multiple punishment — ...., further supported its conclusion that the convictions . . . . must be vacated under the multiple conviction rule.” (/d. at p. 120.) Although thetrial court had stayed the sentences under section 654, that appellate court observedthat the defendant nevertheless 4 LAW OFFICESOF SIRI SHETTY PMB 421 415 LAUREL STREET, SANDIEGO, CA 92101 Tel: (619) 810-7625 Fax: (619) 955-6954 shetty208812@gmail.com faced serious consequencesin a future prosecution becausetheserious bodily injuryenhancements had transformed those crimesintostrikes, (lbid.) This Court reversed, holding that the Court ofAppeal had erred in expanding themultiple conviction rule to require consideration of enhancements. This Court reiteratedthat the judicially created exception only compelled vacatur ofthose offenses deemedincluded offenses underthe statutory elements test. (Peoplev. Sloan, supra, 42 Cal.4th atp. 118.) After noting that section 954 otherwise permitted multiple convictions under thecircumstancesofthatcase, this Court reasonedthat it wouldbe irrational to prohibitmultiple convictions otherwise permitted under thatstatute simply because additionalenhancements also were charged and foundtrue.(Id. at p. 119.) In concludingthat enhancements should not be considered, this Court alsoobserved that the possibility of future multiple punishmentcould notprovide a basis tootherwise disregard the mandate of section 954. (People v. Sloan, supra, 42 Cal.4th atp.122.) Nor could such possibility “itself furnish a basis for expanding the multipleconviction rule or undercutting the bright-line test... . [previously establishedforthatexception.]”(Id. at p. 120.) ButSloan has no application to Solis orthe presentcase. Appellants do notdispute that section 954 permits multiple convictions for lesser offenses where suchoffenses are charged. (Eid RBOM 9; Oliveira RBOM 17-1 8). And neither Solis norappellants’ claims implicate the judicially created rule against necessarily included a greater andlesser offense because onelesser offense was notincluded in the other.(Solis, supra, 224 Cal. App.4th. at pp. 557-558.) But Solis recognizedthat California’s statutory scheme doesnotreflect legislativeintent to permit multiple uncharged convictions stemming from a single charged crime,and heldthat section 1159 does not authorize such a result. (Solis, supra, 224 Cal.App.4th. at pp. 556-559.) In so concluding, the appellate court did not premise itsinterpretation ofthe statute on the potential for future multiple punishment. Rather,itrecognized that such Consequenceshighlighted the unfairness ofpermitting two 5 LAW OFFICES OF SIRI SHETTY PMB 421 415 LAUREL STREET, SAN DIEGO, CA 92101 Tel: (619) 810-7625 Fax: (619) 955-6954 shetty208812@gmail.com convictions for a single charged crime where a defendanthad not received notice of, nor consented to, such a result. Indeed, the Solis court made clear that “the strike punishment consequencesof[the defendant’s] multiple convictions are not[its] sole concern.” (/d.at p. 559.) Rather, Solis emphasizedthat a defendant has “the right to know that he faced the potential of being convicted oftwo separate, uncharged lesser related offenses, both potential strikes, when charged with only one offense.” (Solis, supra, 224 Cal.App.4th at p. 559.) Andthe result in that case was “unjust” because that defendant “had no reason to expect that he could suffer two strike convictions when charged with only a single strike offense.” (Jbid.) Section 1159 does not, as Solis recognized, “authorize such an unexpected outcome.”(Jbid.) Furthermore, a contrary rule may implicate “whether a defendant has a constitutional due processright to notice of the numberofpotential convictions he or she may face based on a single charged offense.”(Ibid. at p. 560.) Although appellants in the present case did not sustain two unchargedstrike offenses for a single chargedstrike crime, Solis’s concern regarding notice remains relevant. As appellants argued, although they may have agreedto lesser included instructions on several offenses, they did not consent to multiple convictions for a single charge (Appellants’ Letter Brief at p. 3), and did not have notice of such “an unexpected outcome.”(Solis, supra, 224 Cal.App.4th at p. 559.) Indeed,as in Solis, the decision of the Court of Appealto strike the misdemeanor conviction preserved appellants’ due processright to notice of the numberof convictions they could sustain based on a single charged crime. C. Solis highlights the absurd consequences of the rule proposed by the Attorney General As Solis recognized, respondent’s interpretation of section 1159 could lead to unjust consequences. For example,as in Solis, it would allow a defendant to sustain two strike convictions when he only has been charged with one. (Solis, supra, 224 Cal.App.4th at p. 560.) Such result is manifestly unfair. (See ibid.) In addition, although Solis did not involve such circumstance, the rule endorsed by the Attorney General might also permit a defendant to sustain punishment on two 6 LAW OFFICESOF SIRI SHETTY PMB 421 415 LAUREL STREET, SAN DIEGO, CA 92101 Tel: (619) 810-7625 Fax: (619) 955-6954 shetty208812@gmail.com unchargedlesser offenses that may exceed the Statutory maximum available for the greater charged crime. For example, a defendant charged with attempted murder absent an allegation ofpremeditation (§§ 664/187) faces a maximum term of9 years. (See People v. Jefferson (1999) 21 Cal.4th 86, 97.) But such defendantcould receive 12 years imprisonmentifhe was acquitted ofthat crime, but nevertheless convicted oftwo unchargedlesser related offenses such as mayhem (§ 204 — two,four or eight years) and aggravated assault (§ 245, subd. (a)(1) — two, three or four years.) Such result, as respondent cannot reasonably dispute,also is manifestly unfair. Although neither circumstance occurred in the instant case, the rule urged by the Attorney General would endorse such an outcomein other cases. Thus, as recognized by Solis as well as the Court ofAppealin the instant case, respondent’s interpretation of section 1159 not onlyis inconsistent with the plain termsofthestatute, it is neither sensible nor in accord with soundpublic policy. CONCLUSION In sum, Solis persuasively supports the Court ofAppeal’s decision in the instant case. As Solis recognizes, section 1159 does not allow a defendantto sustain multiple unchargedlesser offenses for a single charged crime. Such rule is consistent with the statute’s plain termsandits historical application.It also protects a defendant’s due processright to notice ofthe number of convictions he may sustain. Accordingly, this Court should affirm the judgmentofthe Court ofAppeal and hold that section 1159 does not permit more than oneconviction for each charged crime. Dated: April 7, 2014 Respectfully submitted A rAAT Siri Shetty and Richard Jay Moller Attorneys for Appellants LAW OFFICESOF SIRI SHETTY PMB 421 415 LAUREL STREET, SAN DIEGO, CA 92101 Tel: (619) 810-7625 Fax: (619) 955-6954 shetty208812@gmail.com DECLARATION OF SERVICE BY U.S. MAIL & ELECTRONIC SERVICE Case Name: Peoplev. Eid et. al. Case No. 8211702 I, Siri Shetty, declare as follows: 1. I am over 18 years old, a resident of San Diego, California, not a party to this action, and my business address is PMB 421, 415 Laurel Street, San Diego CA 92101; I served the within reply letter brief, by: (a) causing to be served electronically through the court’s e-submission portal; and (b) by delivering an original and eight copies to: California Supreme Court, Office ofthe Clerk, 350 McAllister Street, San Francisco CA 94102-4797; and I served the within electronically to: California Attorney General, at ADIEService@doi.ca.gov; Appellate Defenders, at eservice-criminal@adi-sandiego.com; co-appellant counsel Richard Jay Moller at moller95628@gmail.com; and I served the within on the following by causing to be mailed a copy thereof to: Orange County District Attorney's Orange County Superior Court Office 700 Civic Center Dr. West 401 Civic Center Drive West Department C-39 Santa Ana, CA 92701 Santa Ana, CA 92701 For delivery to: The Honorable M. Marc Kelly Court of Appeal, Fourth Appellate Reynaldo Junior Eid District, Div. Three 562 Devon Street #1 601 W. Santa Ana Blvd. Kearny, New Jersey 07032 Santa Ana, CA 92701 I certify under penalty of perjury that the fo regping i s r u e and c o m e c t . . Dated: April 7, 2014 Siri Shetty