PEOPLE v. JUAREZ

Respondent, Gerardo Juarez, Reply Brief on the Merits

Cal.March 10, 2015

wm en C wari if Case No. 219889 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA PlaintiffandAppellant, VS. GERARDO JUAREZ AND EMMANUEL JUAREZ Defendants and Respondents, SUPREME COUR: pre = RESPONDENT GERARDO JUAREZ?’ MULED REPLY BRIEF ON THE MERITS MAR 10 2015 From the Published Opinion of the Court of Appeal Fourth District, Division Three, No. G049037 Syank A. McGuire Cle: 1 innceceESASo H Orange County Superior Court No.: 12CF3528 "~~"Deputy The Honorable Gregg L. Prickett, Judge, Dept. C-5 ORANGE COUNTY ALTERNATE DEFENDER’S OFFICE FRANK DAVIS Alternate Defender ANTONY C. UFLAND Senior Deputy Alternate Defender EMAIL: Tony.Ufland@altdef.ocgov.com State Bar No. 157620 600 W. Santa Ana Blvd, #600 Santa Ana, California 92701 Telephone:(714) 568-4160 Fax: (714) 568-4200 Attorneysfor Respondent GERARDO JUAREZ Case No. 219889 IN THE SUPREME COURTOF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA Plaintiffand Appellant, VS. GERARDO JUAREZ AND EMMANUEL JUAREZ Defendants and Respondents, RESPONDENT GERARDO JUAREZ’ REPLY BRIEF ON THE MERITS From the Published Opinion of the Court ofAppeal Fourth District, Division Three, No. G049037 Orange County Superior Court No.: 12CF3528 The Honorable Gregg L. Prickett, Judge, Dept. C-5 ORANGE COUNTY ALTERNATE DEFENDER’S OFFICE FRANK DAVIS Alternate Defender ANTONY C. UFLAND Senior Deputy Alternate Defender EMAIL: Tony.Ufland@altdef.ocgov.com State Bar No. 157620 600 W. Santa Ana Blvd, #600 Santa Ana, California 92701 Telephone: (714) 568-4160 Fax: (714) 568-4200 Attorneysfor Respondent GERARDO JUAREZ TABLE OF CONTENTS Page Table of Contents............ccccccccccccceeecnscecsccccuneeeececneeecseneeenteeeeeees i Table of AuthoritieS..............ccce ccc cceecccceeeeeenccenteeereceeneeesseeeeneueesii Issue Presented...........cccceeeccceccccecseuceceeceestaeseeeeecesueeteeeeseseneeseees 1 ALQUMENt.. 0. cece eee e cece eee eee eee nnn enn EEE E EEE eee EEE eee Ete 1 I. THE NARROW “SAME ELEMENTS” TEST FOR DETERMINING “SAME OFFENSE”, SUGGESTED BYT THE PROSECUTION, WOULD COMPLETELY UNDERMINE THE POLICIES THAT SECTION 1387 IS MEANT TO PROTECT. vccucauuccccecceceuuncnnceeeseneueneneneeteeceeeeneeeecaseeeeeseuneeeeeseeeeeeees 1 II. OTHER JURISDICTIONS HAVE DEFINED THE PHRASE “SAME OFFENSE” BROADLY, TO ENCOMPASS OFFENSES BASED ON THE SAME CONDUCT. vccueececucecececeeueeececeeseececeeennetetevesecnesseeeeecnsseeeuseeseeeteeees 9 lll. RESPONDENT GERARDO JUAREZ JOINS IN AND ADOPTS THE ARGUMENTS RAISED BY CO-RESPONDENT. dca ceececeueccueceececenaceceseececunneeennenececeeeetereeusgneeeneeetteneneetes 10 CONCLUSION. ........ ccc ccc ccc cece nenecccce ee ceeeueneeccteeeeeeueeseueeeeeeeeeeneees 12 Certificate of Word Count............cccc cece cece cece cece eee eeeeeeneenneeneenennee 13 Declaration of Service............ccccee ccc eeeececececeeeeececeeeeeecseeeeeeaueenes 14 GerardoJuarezReplyBrief TABLE OF AUTHORITIES Cases Alex T. v. Superior Court (1977) 19 Cal.App.4™ 738.0... .ccccccccccscceececeeceeseecseeceeeeeeeuereeaeeaeseaeeeeeg ens 1 Dietrick v. Superior Court (2014) 220 Cal.App.4” 1472......ccccccccccccececeeeeceseeeeeeeeeeeneneeaeeaeeseeeanees4,5 Grady v. Corbin (1990) T5 US. 508... occ ence cece eee ee eee eee e eee ee enone eeeeenee tees nee e ease eae ee snes 10 In re D.B. (2014) 58 Cal.4 941. ccc ccc ccc ne ec ec eee eee eeeeeseeneeeee ease eaeeesaeeeeeneeees6,7 Klopfer v. North Carolina (1967) ST: 00 ORS00 2 Landrum v. Superior Court (1981) 0 Or:F cs5-6 People v. Bryant, smith and Wheeler (2014) (SO OF)Sekb eeee10 People v. Colver (1980) 107 Cal.App.3d 277.........ccccccecceee eee eee enene ee en ene e ene e ee ee essere senses nees6 People v. Elias (1990) 218 Cal.App.3d L161 ....... cece cece cece eeere tener eee eeeeeeneeeenene een ees 5-6 People v. Godlewski (1943) 22 Cal.2d 677.0... ccc cceccc cece eee ne eee e eee ee eee eee ne nee be ee bee ee nse nee sees eens eens2 People v. Smith (1970) A CalApp.3d 41.0...ce cece cece eee e nee ern eee eee e eens nee nena te 10 People v. Stone (1981) 117 CalApp.3d 15.00...ee ccc c cent eee e renee een e ener nena eben ene e bene eaes 10 i GerardoJuarezReplyBrief People v. Superior Court (Martinez) (1993) 19 Cal.App.4™ 738. .....cccccccceccecnecececeeeeeeceeee cease eeeeeeeeeeseeeeeeeeeens 1 People v. Traylor (2009) 46 Cal.4 1205.0... ccc ccccc ccc cec cca ee eee ce eeaeeen een eee een eee eeeeeneeeeeaeaeegenss4 People v. Wilson (1963) 60 Cal.2d 139.0...ece cece cece eee ee ee ee ee eeeeeenseeeeetneenaeeeeereneeeees2 State v. Lessary (1994) (1994) 75 Haw. 446.00... ccc ec eee e eee e eee ne eee ee ene eneeeeeesenaeeneneeeeeeees 10 U.S. v. Dixon (1993) 509 U.S. 608.0... .. ccc eee cece cence ee ee eee eee eeeneeeeeeeeeenenaeeeeeeeeed 10, fn.2 Statutes California Penal Code §1387..............ccceececeeeeeeeeeeeeeeeeneeeeeaespassim California Penal Code §487............ 2... cccceceee nce ee cece eect enee ene naeeeaeenees 5 California Welfare and Institutions Code §733, subd.(c).................0eecee7 Nevada Revised Statutes §62D.020............ cece eee e eee ee eect ee eee ene n een eee9 Other Magna Charta (1215).......cccccc cence eee ce nee eee neon eens eee netnaeeeaeenaeeenees 1-2 Black’s Law Free Online Legal Dictionary, 2" Ed. ...cccccccc ccc ec eee e neces2 5 Witkin, California Criminal Law, 3” Edicccccccc ccc cec ccc ecceec nce eec een senees6 Hawai’i State Constitution, Art. 1, Sec. 10.0.0...cccc eneceeeeeneees 9 California Rules of Court 8.200(a)(5).......... cc cccccce cece eeeeeeeeeeeeeeeeerees 10 iii GerardoJuarezReplyBrief ISSUE PRESENTED Does California Penal Code! section 1387’s prohibition on a third, successive felony prosecution for the “same offense” operate to bar a third prosecution of a defendant for precisely the same conduct at issue in two previously dismissed cases where nostatutory exception applies, but where the prosecutor has elected to charge the exact same conduct under a different Code section? REPLY ARGUMENT 1. THE NARROW “SAME ELEMENTS” TEST FOR DETERMINING “SAME OFFENSE”, SUGGESTED BY THE PROSECUTION, WOULD COMPLETELY UNDERMINE THE POLICIES THAT SECTION 1387 IS MEANT TO PROTECT. The basic purpose of Section 1387 is to limit improper successive prosecutions which harass a defendantand to protect the speedytrial limits in Section 1382. (People v. Superior Court (Martinez) (1993) 19 Cal.App.4" 738, 744; Alex T. v. Superior Court (1977) 72 Cal.App.3d 24, 30.) The rightto a “speedytrial” dates back at least to the Magna Charta ' All subsequentreferences to codesections are to the California Penal Code, unless otherwise indicated. Gerardo}uarezReplyBrief (1215), which prohibited the king from delaying justice to any person in the realm. (Magna Charta, Chapter 40 (1215).) The United States Supreme Court has held that “the right to a speedy trial is as fundamental as any of the rights secured by the Sixth Amendment. Thatright has its roots at the very foundation of our English law heritage. Its first articulation in modern jurisprudence appears to have been madein Magna Carta (1215), wherein it waswritten, ‘Wewill sell to no man, wewill not deny or deferto any man either justice or right.’” (Klopfer v. North Carolina (1967) 386 U.S. 213, 223.) Black’s Law Online Dictionary defines “speedy trial” as “a trial conducted according to fixed rules, regulations, and proceedings of law, free from vexatious, capricious, and oppressive delays manufactured by the ministers ofjustice.” (Black’s Law Free Online Legal Dictionary, 2"4 Ed.) The basic policy underlying the constitutional provision guaranteeing the right to a speedy trial is to protect the accused from havingcriminal charges pending against him an unduelength of time. (People v. Wilson (1963) 60 Cal.2d.139, 148,citing People v. Godlewski (1943) 22 Cal.2d 677, 682.) In order to insure an accused’s rightto a “speedytrial”, Section 1387 bars a third filing for the “same offense” where it has already been twice dismissed. The prosecution is correct whenit points out thatit is clear that the section only applies to successive prosecutions for the “same offense”. (Appellant’s AnswerBrief on the Merits, p. 7) However, whatis not clear GerardoJuarezReplyBrief . from the statute, and whatis at issue in the present case, is what is meant by the term “same offense”? If the Court were to adopt the prosecution’s extremely narrow interpretation of the words, the Section would not offer any protection against speedytrial violations, as this case perfectly exemplifies. A right to a speedytrial only on the code sections that the prosecution elects to file in a Complaint/Information would leave the prosecution free to continuously file new code sections to address the same, known, conduct until the prosecutor ran out of applicable code sections. Respondents in the present case spent a year and a half in custody preparing to fight attempted murder charges, only to be charged with conspiracy to commit murder charges when the second set of attempted murder charges were dismissed. Respondents then spent another seven months fighting conspiracy to commit murder charges for the same incident and based on the exact same facts. Such a situation is textbook vexatious, capricious and oppressive delay, manufactured by the prosecution. The prosecution’s argument regarding their adherence to speedytrial principals in the present case (Appellant’s Answer Brief on the Merits, p. 43) is also erroneous. The fact that Appellant repeatedly refiled charges against Respondents on the same day that they dismissed previous cases does nothing to protect an accused’s speedytrial rights. The right is to be Gerardo}uarezReplyBrief . tried in a speedy manner,notto be repeatedly charged in a speedy manner. Furthermore, the fact that there may not be any “malfeasance”in the sense that the prosecution was not motivated by a desire to violate the Respondents’ speedy trial rights does not excuse the prosecution from Section 1387’s prohibition. In the present case, the prosecution was twice unable to proceed to trial on attempted murder charges, and was twice forced to dismiss attempted murder charges. It is those dismissals that represents a speedy trial violation, and it is those dismissals that differentiate this case from the situation present in People v. Traylor, (2009) 46 Cal.4" 1205. Even where courts have found that Section 1387’s prohibition does not apply, they have taken great pains to state that the section’s policies or aims are not offended by such a conclusion. In Traylor, supra, where a misdemeanorfiling was upheld following the dismissal of felony charges, this Court stated, “Under such circumstances, section 1387(a)’s fundamental aims are not contravened by a conclusion that, following the dismissal of a greater felony charge, the statute permits the subsequent filing of a lesser misdemeanorcharge...” (Traylor, supra, at p. 1214.) Along similar lines, in Dietrick v. Superior Court, (2014) 220 Cal.App. 4" 1472, a magistrate only held the defendant to answer to misdemeanor DUI charges whenthe prosecutor failed to present evidence GerardoJuarezReplyBrief of the requisite prior DUI convictions. The People moved to dismiss the misdemeanor charges, and the next day filed a second felony complaint which wasidentical to the first, but added two prior prison term allegations. The trial court denied the defendant’s Motion to Dismiss pursuant to Section 1387, finding that “no purpose of [Section 1387] would be promoted” by such a dismissal. The court of appeal affirmed. The court stated, “The prosecutor proceeded in a permissible manner by dismissing the current complaint and refiling the case.” (Dietrick, supra, at p. 1476.) In affirming the trial court’s order, the court specifically discussed the primary purpose of Section 1387, and found that, while the defendant would “indeed face a second preliminary hearing and felony prosecution, this does not constitute the kind of “harassment” that Section 1387 was designedto prevent.” (Dietrick, supra, at p. 1477, emphasis added.) Finally, in People v. Elias, (1990) 218 Cal-App.3d 1161, the court of appeal found that Section 1387 did not bar a third filing for grand theft (PC §487) when one of the two previous dismissals had been in regard to an inadvertently filed complaint that was simply duplicative of the first complaint. The appellate court held that the third, duplicate complaint was not barred by the statute, and that to hold otherwise would lead to absurd results. Most important to the present case, the Court stated that “statutes are to be construed to effectuate their purpose (Landrum v. Superior Court GerardoJuarezReplyBrief . (1981) 30 Cal.3d 1, 12) and not to produce an absurd result (People v. Colver (1980) 107 Cal.App.3d 277, 285.)” (Elias, supra, at p. 1164.) This Court must construe the phrase “same offense” in a mannerthat effectuates the purpose of Section 1387. Ifthe Court were to construe that phrase in a manner that would allow the harassing, speedy trial violation that the prosecution seeks, that would be an “absurd result”. Even when courts determine that Section 1387 does not bar a successive prosecution, they look to the intent, design and purpose of the statute in doing so. In the present case, a determination that the third filing against Respondents is permissible would absolutely present the type of harassment and speedytrial violation that the section is designed to prevent. While Section 1387 undeniably uses the term “same offense’, the statute also undeniably fails to specifically define what that term means. The phrase “same offense” does not mean merely violation of the same statute; rather, when different offenses are charged in successive prosecutions, the court must look to the essence of the offenses. (5 Witkin, California Criminal Law, 3” Ed., §421) The prosecution’s assertion that the Legislature’s “clear language” governs, and it’s reliance on In re D.B., (2014) 58 Cal.4" 941, are erroneous. The Legislature clearly used the phrase “same offense”, but they did not make clear what that term meant. Courts have, however, GerardoJuarezReplyBrief . madeit crystal clear that the legislative intent in enacting the statute was to protect defendants from harassment, and to prevent speedytrial violations. This Court is now called upon to determine what the phrase “same offense” means. The ambiguity in the meaning of “same offense” is what distinguishes the present case from Jn re D.B., supra. In In re D.B., this Court found that the language of California Welfare and Institutions Code Section 733, subdivision (c), referring to a minor’s “most recent offense”, wasClear and led to only one reasonable interpretation. (dn re D.B., supra, at p. 947.) That is not the case with Section 1387. The words “same offense” are not “clear and unambiguous” and do not lead to only one “reasonable interpretation”, as is clear from a review of the various cases that have interpreted the section. More importantly, this Court also said, in In re D.B., that: “Our fundamental task is to determine the Legislature’s intent and give effect to the law’s purpose.” (In re D.B., supra, at p. 945.) The Legislature’s “intent” in enacting Section 1387 is clear, and in order to give effect to that intent, this Court must adopt an interpretation of the phrase “same offense” that protects the defendant’s speedytrial rights. GerardoJuarezReplyBrief Contrary to Appellant’s assertions (Appellant’s Brief, p. 51), Respondents’ arguments regarding the scope of Section 1387 are not misplaced; Respondents are not barking up the wrong tree. This Court is the appropriate bodyto interpret the phrase “same offense”. If this Court were to adopt the prosecution’s narrow “same elements” test they would condone an almost unlimited numberof filing by the government for charges describing the same set of facts and circumstances. In the present case, the prosecution has already had two bites at the attempted murder charges. If the Court affirms the Court of Appeal’s holding they will be entitled to two bites at a conspiracy to commit murder apple. Beyond that, at a minimum, they would have two bites at an aggravated assault apple. The prosecution would be able to twice file and dismiss as manycasesas statutes they could come up with to describe the events of June 3, 2011. That is exactly the danger that Section 1387 was intendedto protect against. GerardoJuarezReplyBrief I. OTHER JURISDICTIONS HAVE DEFINED THE PHRASE “SAME OFFENSE” BROADLY, TO ENCOMPASS OFFENSES BASED ON THE SAME CONDUCT. The prosecution’s narrow interpretation notwithstanding, other jurisdictions have interpreted, or even defined, the term “same offense” broadly, in a manner that would encompassall offenses arising from the same conduct. Nevada Revised Statute Section 62D.020, which discusses juvenile rights, states: 1. If a child is prosecuted for an offense in a juvenile proceeding, the child may not be prosecuted again for the same offense in another juvenile proceeding or in a criminal proceeding as an adult. 2. For purposesofthis section: (b) An offenseis the same offense ifit is: (2) An offense based upon the same conductas that alleged in the petition. (Nev.Rev.Stat.§62D.020, emphasis added.) In the context of double jeopardy analysis, the Hawaii State Constitution states, in relevantpart: Nopersonshall be . . . subject for the same offense to be twice put in jeopardy|.|" (Hawai’i Constitution, Art. 1, Sec 10) GerardoJuarezReplyBrief This Hawaii Supreme Court has determined that “same offense”is governed by the “same conduct” test, that was set out by the United States Supreme Court in Grady v. Corbin, (1990) 495 U.S. 508.? In State v. Lessary, (1994) 75 Haw.446, the Hawai’i Supreme Court stated: The double jeopardy clause of the Hawai'i Constitution prohibits the State from pursuing multiple prosecutions of an individual for the same conduct. Prosecutions are for the same conduct if any act of the defendant is alleged to constitute all or part of the conduct elements of the offenses charged in the respective prosecutions. (State v. Lessary, supra, at p. 461.) III. RESPONDENT GERARDO JUAREZ JOINS IN AND ADOPTS THE ARGUMENTS RAISED BY CO- RESPONDENT. Respondent Gerardo Juarez hereby joins in and adopts by reference all arguments raised by his co-respondent Emmanuel Juarez. (People v. Stone (1981) 117 Cal.App.3d 15, 19, fn.5; People v. Smith (1970) 4 Cal.App.3d 41, 44; Calif. Rules of Court 8.200(a)(5).) Respondent is aware of this Court’s holding in People v. Bryant, Smith and Wheeler (2014) 60 Cal.4" 335, 363-364, that “[a]ppellate counsel for the party purporting to 2 The United States Supreme Court specifically rejected this test for federal double jeopardy analysis three years later in United States v. Dixon (1993) 509 U.S. 608, however a numberof states continue to use the test when contemplating their own constitutional Double Jeopardy Clauses. The Citation to Grady herein is not for precedential value, only to indicate wherethe State of Hawai’i’s test is derived from. ; 10 GerardoJuarezReplyBrief join some or all of the claims raised by another are obligated to thoughtfully assess whether such joinder is proper as the specific claims and, if necessary, to provide particularized argument in support ofhis or her client’s ability to seek relief on that ground”, and that the Court may treat arguments as waived if the party does not provide a legal argument and citation to authority on each point. (id.) However, as co-respondent Emmanuel Juarez has pointed out, in the present case both respondents are in exactly the same position vis-a-vis all of the issues raised in the briefs. The arguments co-respondent Emmanuel Juarez has raised are equally applicable in all respects to respondent. In this case, “joinder is proper”as to all arguments madeby co-respondent. ; 11 GerardoJuarezReplyBrief CONCLUSION For all of the reasons articulated herein, as well as those argued in Respondents’ previousbriefs, reversal of the Court of Appeal’s opinion is required. a Dated: 3/ Ais Respectfully Submitted, FRANK DAVIS Alternate Defender Oran oun ae, t ANTONY C. UFLAND Senior Deputy Alternate [Defender Attorneysfor Defendant/Respondent Gerardo Juarez 12 GerardoJuarezReplyBrief CERTIFICATE OF WORD COUNT [California Rules of Court, Rule 28.1(e) (1)] I certify that the text of Defendant/Respondent Gerardo Juarez’ Reply Brief consists of 2,664 words as counted by “Word”, the word-processing program usedto generateit. Dated this 9" day of March, 2015 ANTONYC. UFLAND \ Senior Deputy Alternate Defender 13 GerardoJuarezReplyBrief DECLARATION OF SERVICE The People v. Gerardo Juarez/Emmanuel Juarez Supreme Court Case No. $219889 DCA Case No. G049037 Superior Court Case No. 12CF3528 STATE OF CALIFORNIA) ) ss COUNTY OF ORANGE ) Antony Ufland, declares that he is a citizen of the United States, a resident of Orange County, over the age of 18 years, not a party to the above-entitled action and has a business address at 600 West Santa Ana Blvd, #600, Santa Ana, CA 92701. That on the 9" day of March, 2015, I served a copy of Defendant/Respondent Gerardo Juarez’ Reply Brief on the Merits in the above-entitled action by depositing a copy thereof in a sealed envelope, postage thereon fully prepaid, in the United States Mail at Santa Ana, California. Said envelope was addressed as follows: ATTORNEY GENERAL CLERK OF THE COURT State of California COURT OF APPEAL P.O. Box 85266 Fourth Appellate District, Div. 3 San Diego, CA 92186-5266 601 W. Santa Ana Blvd. Santa Ana, CA 92701 TONY RACKAUCKAS DEPUTY COUNTY CLERK DISTRICT ATTORNEY Attn: Hon. Gregg L.Prickett 401 Civic Center Dr. Orange County Superior Court Santa Ana, CA 92701 Dept. C5 Attn: Law & Motion 700 Civic Center Drive West Santa Ana, CA 92701 GERARDO JUAREZ APPELLATE DEFENDERSINC. 1521 E. Harding St. 555 W. Beech St., Ste. 300 Long Beach, CA 90805 San Diego, CA 92101 14 GerardoJuarezReplyBrief JOHN F. SCHUCK Law Office of John Schuck 885 N. San Antonio Rd., Ste A Los Altos, CA 94022 I declare under penalty of perjury that the foregoing is true and correct. Executed on this 9" day of March, 2015,at Sa i fi A Antony C. Ufland \ 15 GerardoJuarezReplyBrief