PEOPLE v. JUAREZ

Respondent, Emmanuel Juarez, Reply Brief on the Merits

Cal.February 13, 2015

SUPREME COURT FILED SUPREME COURT, STATE OF CALIFORNIA FEB 13 2015 | Frank A. McGuire Clerk Deputy PEOPLE OF THE STATE OF CALIFORNIA, No: 8219889 Plaintiff/Appellant, RESPONDENT EMMANUEL v. JUAREZ’S REPLY BRIEF ON THE MERITS EMMANUEL JUAREZ,et al., Defendants/Respondents. N e w e r N e e e e e N e e n e n e e e e e e e e e ” AFTER OPINION OF THE COURT OF APPEAL FOURTH APPELLATE DISTRICT, DIVISION THREE CASE NOS. G049037, G049038 THE HONORABLE GREGGL. PRICKETT, JUDGE LAW OFFICES OF JOHN F. SCHUCK John F. Schuck, #96111 885 N. San Antonio Road, Suite A Los Altos, CA 94022 (650) 383-5325 schuckappeal@hotmail.com Attorney for Respondent EMMANUEL JUAREZ By appointmentofthe Supreme Court JuarezEReplyBrief SUPREME COURT,STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, ) No: 8219889 ) Plaintiff/Appellant, ) ) RESPONDENT EMMANUEL V. ) JUAREZ’S REPLY BRIEF ) ON THE MERITS EMMANUEL JUAREZ,et al., ) . ) Defendants/Respondents. ) ) AFTER OPINION OF THE COURT OF APPEAL FOURTH APPELLATE DISTRICT, DIVISION THREE CASE NOS. G049037, G049038 THE HONORABLE GREGGL. PRICKETT, JUDGE LAW OFFICES OF JOHN F. SCHUCK John F. Schuck, #96111 885 N. San Antonio Road, Suite A Los Altos, CA 94022 (650) 383-5325 schuckappeal@hotmail.com Attorney for Respondent EMMANUEL JUAREZ By appointment of the Supreme Court JuarezEReplyBrief TABLE OF CONTENTS I. INTRODUCTION...0...eee eeneneeeenees 1 II. ARGUMENT....0...cect cee e ene eeaneeees I THE TERM “SAME OFFENSE” AS USED IN PENAL CODE SECTION 1387 REFERS TO ALL OFFENSES ARISING FROM THE SAME SET OF UNDERLYING FACTS.... 2.0.00... cece cece cence teen ete eenes 1 1. The policies underlying section 1387 are best served by adopting respondent’s “underlying case” construction of the term “same Offense.” 2...ccc cee teen beeen ee eeeeeenee 1 2. Conclusion ..... 0.0... cc ccc cece eee e nee eceee ne 9 Ill. CONCLUSION ......00000 0000 ccc ccc cece ce cence been eee eee. 9 JuarezEReplyBrief i TABLE OF AUTHORITIES CASES PAGE NO. Burris v. Superior Court (2005) 34 Cal.4th 1012 cccccc teen eee ene nans 1-4,9 Kellet v. Superior Court (1966) 63 Cal.2d 822 2.cccccc e eee cece e een teneeenes 7 Miller v. Superior Court (2002) 101 Cal. App. 4" 728 2.0.ccece eet e eee e ee eneeneenas 4 Paredes v. Superior Court (1999) 77 Cal.App.4th 24 20.ccc ce ccc cence ee eeneneenenaes 2,8 People v. Luu (1989) 209 Cal.App.3d 1399 20.ccc cece cee cece cnet nen eeans 5 People v. Salcido (2008) 166 Cal.App.4th 1303 2.0...ccc eee cece e eet e ee enneenes 2 People v. Traylor (2009) 46 Cal.4th 1205 2...ccccece eee een e ne enenns 2, 3, 5-8 STATUTES Penal Code section 1387 ........0. 0.00 cence n eee eee neenes 1-4, 6,9 Penal Code section 1387, subdivision (a) ......... 00... cece cee cc nec eeeceeeee 5,8 Penal Code sec.1387.1 Seeee ee ee eee ee eet teen ete e tent eens 7 JuarezEReplyBrief i I. INTRODUCTION In the openingbrief, respondent Emmanuel Juarez demonstrated that the term “same offense” in Penal Code section 1387 meansall offenses arising out of the sameset of underlying or operative facts. (OB 7-24.) The prosecution concedes that “same offense” does not meanliterally the same, exact statutory offense. The prosecution claimsthat “same offense” meansoffenses that have the same elements. Underthis proposedtest, as long as the newly charged offense has different elements, the prosecutor is not limited by section 1387's two-dismissalrule, but can refile charges against a defendantinnumerable times, limited only by the prosecutor’s creativity in selecting the new charge. This cannot be whatthe Legislature intended in enacting and amending section 1387. The prosecution’s claims are not well-taken and should be rejected.’ Il. ARGUMENT THE TERM “SAME OFFENSE”AS USED IN PENAL CODE SECTION 1387 REFERS TO ALL OFFENSES ARISING FROM THE SAME SET OF UNDERLYING FACTS. 1. The policies underlying section 1387 are best served by adopting respondent’s “underlying case” construction of the term “same offense.” In Burris v. Superior Court (2005) 34 Cal.4th 1012, 1018, this court discussed the purpose of the two-dismissal rule of Penal Code section 1387: Section 1387 implements a series of related public ' “AB”refers to the prosecution’s Consolidated Answer Brief on the Merits. JuarezEReplyBrief 1 policies. It curtails prosecutorial harassmentbyplacing limits on the numberoftimes charges mayberefiled. Thestatute also reducesthe possibility that prosecutors might use the powerto dismiss andrefile to forum shop. Finally, the statute prevents the evasion of speedytrial rights through the repeated dismissalandrefiling of the same charges. (Citations omitted.) (Accord, People v. Traylor (2009) 46 Cal.4th 1205, 1213; People v. Salcido (2008) 166 Cal.App.4th 1303, 1309.) But, the language of section 1387 “‘is hardly pellucid.’” (People v. Traylor, supra, 46 Cal.4th 1205, 1212.) And, as this court acknowledged in Burris regarding section 1387, the usualrules of statutory construction “do not reveala clearlegislative intent....Nor doesthe legislative history behind the statute and its subsequent revisions contain evidence the legislature chose a particular construction in order to implement one tule or another.” (34 Cal.4th at 1018.) Therefore, wheninterpreting the term “same offense,” this court “must consider the human problemsthe Legislature sought to address in adopting section 1387 - ‘”’the ostensible objects to be achieved [and] the evils to be remedied.”’”(Burris, supra, 34 Cal.4th at 1018.) The humanproblemsandevils with which section 1387 is concernedare the harassment, repeatedrefiling, and speedytrial issues mentioned in Burris, supra. Section 1387 “exist[s] to protect a defendant’s right to a speedy trial and must be construedto serve that overriding purpose.” (Paredes v. Superior Court (1999) 77 Cal.App.4th 24, 28-29.) Balanced against these interests of a defendantis the prosecution’s interest in JuarezEReplyBrief 2 bringing defendantsto trial. These disparate interests are all served by construing the term “same offense” to meanall chargesarising out of the underlying facts. Such a construction allows the prosecution two opportunities to bring the defendanttotrial (and three opportunities where excusable neglect has been shown (sec.1387.1)), while at the same time preventing harassment andpreserving a defendant’s constitutional speedy trial rights. Given this court’s acknowledgmentthat the language of section 1387 is not clear and that the legislative history does not shed any light on the legislature’s intent, the prosecution’s claimsthat the statute is “clear” (AB 48-53), “‘clear and unambiguous’” (AB 6, 39) andthatits “‘terms...are plain’” (AB 14)are flat wrong. Further, as the prosecution concedes (AB 39), the term “same offense” does not meanliterally the same statutory offense. In Traylor, to resolve the limited issue before it, the court recognized that section 1387, subdivision (a) was not clear. It therefore did “‘depart from literal reading’” (AB 50) of “same offense”and held that it meant an offense with the same elements. (46 Cal.4th at 1212-1213.) Given the issue here, and the indisputable fact that section 1387 “plac[es] limits on the numberof times charges may berefiled” (Burris, supra, 34 Cal.4th at 1018) a departure from this definition is necessary. Respondent acknowledgesthat the reported authorities have generally construed “same offense” as used in section 1387 to mean “the ‘identical criminal act’ as represented by the criminal elements necessary for conviction.” (Traylor, supra, 46 JuarezEReplyBrief 3 Cal.4th at 1217, fn.6.) But, none of those authorities considered the definition of the term in the context of whether unlimited refilings - the proposition argued for by the prosecutionin this case -- were permissible. Given the “predominant purpose” of “establish[ing] some limit” to the numberofrefilings (Miller v. Superior Court (2002) 101Cal.App. 4" 728, 740), it is obvious that the Legislature never would haveintendedto adopt the prosecution’s definition of the term “same offense.” Indeed,the prosecution agrees (AB 34)that the “[t]he predominant purpose of section 1387is to establish somelimit to a defendant’s period ofpotentialliability...” (Miller v. Superior Court, supra, 101 Cal.App.4th at 740.) The prosecution also recognizesthat “[dJefendants havean interest in avoiding potential harassment and delay that may result from repeated criminal prosecutions.” (AB 34.) Despite these necessary concessions, the prosecution inimically argues that section 1387 permits it a virtually unlimited number of repeated prosecutions. (AB 34-53.) Contrary to the public policies stated in Burris, the prosecutionin this matter argues that it can refile charges against a defendant an unlimited numberoftimes as long as the new charge does not contain the same elements as a twice-dismissed charge. But, such repeated refiling constitutes harassment, thus thwarting oneofthe purposes of section 1387. Further, this construction of “same offense” does nothing to “balance the defendant’s interest in avoiding harassment anddelay from repeated filings and society’s interest in prosecuting defendants for their criminal behavior,” as the prosecution claims. JuarezEReplyBrief 4 (AB 48-49.) The prosecution’s idea of “same offense” has the exact opposite effect and tips the scale completely against the defendant. The prosecution’s unlimited refiling argument also eviscerates a defendant’s constitutional and statutory rights to a speedytrial. “The purposeofthe right to a speedy trial is to protect the accused from having criminal charges pending against him an undue length of time caused either by willful oppression, or the neglect ofthe state orits officers.” (People v. Luu (1989) 209 Cal.App.3d 1399, 1404.) Under the prosecution’s theory, repeated refilings can continue unabated for years, which is clearly an undue length of time. Respondent recognizes that the Traylor court, in the context of the issues of that case, rejected the interpretation of section 1387, subdivision (a) that it “should apply toall chargesarising from the same conduct or behavior of the defendant”and that “the statutory language belies such a necessarily broad construction.” (Traylor, supra, 46 Cal.4th at 1213, fn.6.) But, Traylor was not dealing with the issue before the court in this instantcase, i.e., whether unlimited dismissals and refilings of felony charges are proper where the new offense does not includeall the elements of the twice-dismissed charges. The prosecution recognizes that “[n]one of the situations contemplated in Traylor are present in our case.” (AB 18.) Thus, to that extent, Traylor is inapposite. And, the holding in Traylor was “carefully limited” to the circumstances then before the court. (46 Cal.4th at 1220, fn.10.) JuarezEReplyBrief 5 After reciting the salutary public policies underlying section 1387 and the prosecution’s interest in the prosecution ofserious offenses (46 Cal.4th at 1213-1214), the Traylor court stated that, “the central aim of section 1387 is to prevent unlimited dismissals and refilings of complaints charging the same offense.” (46 Cal.4th at 1214.) The public policies against unlimited refilings where the elements-based “same offense” test is used are equally at play using in a “fact-based” test where the new chargesarise out of the underlying incident. This is so even if the elements of the new charge are different from the twice-dismissed charge. The policy objectives of section 1387 are fully accomplished by applying the two-dismissal “same offense” rule as argued for by respondent. Underthis rule, section 1387 bars a subsequentrefiling after two dismissals wherethe chargesarise out of the same underlyingfacts or incident. The prosecution claimsthat respondent’s “‘fact-based’ test disregards section 1387(a)’s narrow application.” (AB 14.) Not so. Respondent acknowledgesthat the Traylor court has given section 1387 an arguably “narrow”interpretation. However, respondent has demonstrated that this narrow interpretation should be reconsidered because it thwarts the policies behind the statute and unfairly and unconstitutionally permits unlimited dismissals and refilings as long as the new charge doesnot contain all of the elements ofthe twice-dismissed charges. The prosecution’s claim that application of respondent’s “‘fact-based’test...would swallow therule,” (AB 14, 27) is not well-taken. Respondent’s “test” would simply JuarezEReplyBrief 6 broadenthe rule to includeall charges arising out of the underlying incident. The term “same offense” would be so defined. Such a definition would preclude unlimited dismissals and refilings, which is the construction soughtby the prosecution. The prosecution argues that respondent’s construction of section 1387, subdivision (a) wouldlead to “a broad prohibition that would precludethe filing of any charges following the requisite [two] dismissals. There would be no uniformity, consistency, or predictability.” (AB 19.) But, a prosecutoris entitled to refile a third time wherethere has been excusable neglect. (Penal Code sec.1387.1.) A prosecutor who twice having been inexcusably unprepared shouldnot receive a third, fourth, fifth, etc. bite of the apple. And, uniformity and consistency would be furthered becauseall parties would definitively know that the prosecutor would have only two chancesto bring the defendant to trial, not unlimited opportunities to charge different offenses as the prosecution in this case proposes. Respondentcited Kellet v. Superior Court (1966) 63 Cal.2d 822, 825-826 for the propositionthat “trials seriatim” “constitute wholly unreasonable harassment.” The prosecution does not dispute this reasonable proposition. And, whiletrials seriatim are notat issue here, “refilings seriatim” certainly are, which also constitutes harassment, as Traylor recognizes. Unlimited seriatim refilings, however,is the procedure argued-for by the prosecution in this case. This cannotbe the intent behind section 1387. To accomplish the purposeofsetting a limit to a defendant’s period ofpotential JuarezEReplyBrief 7 liability, the Legislature provided for a two-dismissal rule, with an escape hatch third refiling in cases of excusable neglect. The only way for this periodofliability to be limited is to adopt respondent’s definition that section 1387, subdivision (a) should apply to all charges arising from the same conduct or behaviorofthe defendant. Althoughthis definition wasrejected in Traylor (46 Cal.4th at 1213, fn.6), it is the only definition that provides limit to a defendant’s periodofpotential liability. Neither the prosecution’s definition of “same offense”nor the court’s definition in Traylor provides the necessary limitation. The prosecution claimsthat “[s]ection 1387(a) is operating how the Legislature envisioned it would.” (AB 39.) However, the wordsofthe statute establish beyondcavil that the Legislature envisioned a two-dismissal rule, not an unlimited dismissal rule. While the Legislature used the term “same offense,” it is doubtful it envisioned that the term would permit virtually unlimited dismissals and refilings. Nor did Traylor state that such waspermissible. The prosecutionclaimsit is not “trying to evade section 1387's policies” (AB 42) because it did not inappropriately harass or forum shop. (AB 42-43.) The prosecutionis wrong;the statutory policy against repeated filings is precisely what the prosecution seeks to evade. It suffered two dismissals as result ofits inexcusablelack of diligence and unpreparedness and now wantsto try again. Such tactic should not be condoned. (Parades v. Superior Court, supra, 77 Cal.App.4th at 28 [‘a felony case once dismissed JuarezEReplyBrief 8 for delay can berefiled, but...a felony case twice dismissed for delay cannot.”]) To permit unlimited refilings after such conduct would rewardcareless, slipshod work and provide no incentive to prosecute the case in a timely manner. Repeated unpreparedness certainly constitutes an inappropriate form of harassment which can violate a defendant’s right to a speedytrial. 2. Conclusion The human problemsand evils with which section 1387 are concerned arethe curtailment of prosecutorial harassment, the limitation of repeated dismissals and refilings, and protection of the defendant’s fundamentalright to a speedytrial. (Burris v. Superior Court, supra, 34 Cal.4th at 1018.) These salutary policies can only be satisfied by construing “same offense” to meanall offensesrelating to the underlying conductof the defendant. Any other definition thwarts these policies. Ill. CONCLUSION For the reasons stated above, and in the brief on the merits, reversal of the Court of Appeal’s opinion is required. Dated: February t, 2015 LAW OFFICES OF JOHN F. SCHUCK John F. Schuck, #96111 885 N. San Antonio Ro Los Altos, CA 94 (650) 383-53 JO SOK A eyfor Respondent EMMANUEL JUAREZ (Appointed by the Court) JuarezEReplyBrief 9 CERTIFICATE OF WORD COUNT In reliance on the word count ofthe computer program used to generate this brief, I, John F. Schuck, herebycertify that this Reply Brief contains 2,132 words. I declare underpenalty ofperjury that the aboveis true and co Dated: February ! , 2015 Toa JolySchack JuarezEReplyBrief 10 PROOE OF SERVICE I, John Schuck,declare: I am a citizen of the United States and a resident of the County of Santa Clara; I am overthe age of eighteen years and am nota party to the within action; my business address is 885 N. San Antonio Road, Suite A, Los Altos, CA 94022. On February Uf , 2015, I served the within: APPELLANT’S REPLY BRIEF ON THE MERITS on the following interested personsin said action, by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the United States mail at Los Altos, California addressed as follows: Emmanuel Juarez 1915 Line Avenue, Apartment6 Long Beach, CA 90806 Orange County Superior Court Anthony Ufland Central Justice Center - Criminal Orange County Alternate Defender’s Office 700 Civic Center Drive West 600 W. Santa Ana Blvd., Suite 600 Santa Ana, CA 92701 Santa Ana, CA 92701 (Attorney for co-respondent) District Attorney Miles David Jessup, Deputy Public Defender P. O. Box 808 Orange County Public Defender’s Office Santa Ana, CA 92702 14 Civic Center Plaza Santa Ana, CA 92701 lam "readily familiar" with the firm's practice of collection and processing correspondence for mailing. It is deposited with the U.S. Postal Service on the same day in the ordinary course of business. I am aware that on motion ofparty served,serviceis presumedinvalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing affidavit. Furthermore,I, Patricia Schuck, declare thatI electronically served from my electronic service address of patmschuck@live.com the same referenced above document before 5:00 p.m. on February _//_, 2015 to the followingentities: JuarezEReplyBrief PROOF OF SERVICE CONT’D. Appellate Defenders,Inc., eservice-criminal@adi-sandiego.com Attorney General’s office, ADIEService@doj.ca.gov. Court of Appeal, Fourth Appellate District, via e-submission. I declare under penalty ofperjury that the foregoingis true and correct. JuarezEReplyBrief