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• There is no “substantive right,” under federal law, to use marijuana for medicinal purposes.

The use of marijuana for medicinal purposes, being contrary to a prior Ninth Circuit case decision and not a “substantive right,” remains illegal under federal law.  Its continuing illegality under federal law does not violate the Due Process Clause.   The fact that multiple states have legalized the use of marijuana for medicinal purposes has no effect on federal law.

In 2017, defendant Richard Langley plead guilty to possession of child pornography (per 18 U.S.C. § 2252(a)(4)(B)) in federal court.  He was sentenced to time served (56 days) with ten years of supervised release (i.e., probation).  The conditions of Langley’s supervised release included that he “not commit [a] federal, state or local crime,” “not illegally possess a controlled substance,” and “refrain from any unlawful use of a controlled substance.”  It is a statutory requirement under federal law (18 U.S.C. § 3583(d)) that these conditions be imposed. Defendant accepted these conditions (the alternative being that he stay in jail) despite being prone to smoking a little doobie once in a while.  He claimed that smoking marijuana was necessary for him in order to alleviate the pain he felt from a previous amputation of his right leg below the knee; the result of a motorcycle accident.  Sometime that same year, defendant returned to the federal district court and asked that his supervised release conditions be amended to permit him to use marijuana for medicinal purposes, as was then allowed under California law.  Marijuana possession and use still being illegal under federal law, his motion was denied.  In 2020, defendant renewed his motion, coming to court this time with a physician’s report opining that marijuana was the best medical solution to his pain issues.  His motion was denied again.  Defendant appealed from this denial.

The Ninth Circuit Court of Appeal affirmed.  Defendant’s argument on appeal was that he has a fundamental constitutional right under the Fourteenth Amendment’s Due Process Clause to use medical marijuana, at least under these circumstances.  Defendant’s belief that the Due Process Clause applied was because with so many states (36 states and the District of Columbia) now allowing the use of medical marijuana, and with a physician’s recommendation that he use it to treat his pain, his right to toke on an occasional doobie had become a “substantive right.”  Defendant defined a “substantive right,” as it applies to him, to be “the right to make a life-shaping decision on a physician's advice to use medical marijuana to preserve bodily integrity, avoid intolerable pain, and preserve life, when all other prescribed medications and remedies have failed.”  However, the Ninth Circuit Court of Appeal had already ruled on this issue some 15 years ago in Raich v. Gonzales (9th Cir. 2007) 500 F.3rd 850.  In Raich, at page 866, the court “rejected the claim that this purported right, which was defined using identical language (as in this current case), is a fundamental right.” Raich specifically held that “federal law does not recognize a fundamental right to use medical marijuana prescribed by a licensed physician to alleviate excruciating pain and human suffering.”  The Court in Raich further determined that the right to use medical marijuana does not rise to the level of a “substantive right” in that it “is not, objectively, ‘deeply rooted in this Nation's history and tradition,’ and ‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor justice would exist if [it] were sacrificed,’”  (Citing and quoting the U.S. Supreme Court decision of Washington v. Glucksberg (1997) 521 U.S. 702, 719-720.)  Further, the possession and use of marijuana continues to be in violation of federal statutes.  The bottom line is defendant does not have a “substantive right” to use medical marijuana to treat his pain.  Whether that rule is right or wrong by today’s standards, the Ninth Circuit does not have the power to change it.  This Court is bound by its 15-year-old decision in Raich until overruled by a higher authority; i.e., the U.S. Supreme Court.  Defendant’s motion to allow him to use medical marijuana, therefore, was properly denied.

Keep in mind that this applies only to federal probationers/parolees.  With marijuana being legal in California, state probationers/parolees dance to a different tune.  As for whether this decision stands the test of time, we’ll have to wait and see whether the U.S. Supreme Court takes the hint and decides to hear this issue.  However, with an en banc panel rehearing having just recently being denied by the Ninth Circuit (see 2022 U.S.App. LEXIS 3446 (9th Cir. Cal., Feb. 8, 2022)), it may be awhile yet before we know whether this decision is appealed, and if so, whether the Supreme Court cares enough to grant certiorari.  And even if it does, it’s hard to believe that the High Court would reverse, at least as long as the possession and use of marijuana is illegal under federal statutory law.  To do so, the Court would have to agree with defendant’s argument that medicinal marijuana is such an important “substantive right” that it violates the Due Process Clause to deny him a little doobie on occasion, at least when needed to alleviate his pain and with a doctor’s recommendation.  I don’t think that’s going to happen.   Meanwhile, I have to admit that I’m not a big fan of another mind-altering substance being legalized and put out on the street, with all the societal problems that naturally follow.  However, I do have some sympathy for persons who need marijuana, at least for pain.  However, no one having asked my opinion, and with medicinal and recreational marijuana now being a fact of life at least in California, we still have to deal with the issues caused by marijuana’s continuing illegally under federal law.  We also have to deal with the reality that legalizing, and thus (in theory) controlling the marijuana trade (whether for medicinal or recreational purposes), has apparently not solved all the problems marijuana’s proponents claimed it would.  That’s perhaps because California’s marijuana cultivation, possession, disbursal, and use has become the subject so many restrictive statutes that many dope peddlers are figuring it out that continuing to resort to a Black Market is just easier, faster, and cheaper.  How California is going to resolve this problem, having already dug itself into a hole, I don’t know. 

• Miranda; Forfeiture of the Issue
   
• Wearing of Facemasks by Witnesses and the Sixth Amendment Right to Confrontation

Defense counsel’s failure to object to the admissibility of a non-Mirandized statement forfeits the issue on appeal.  The wearing of facemasks by witnesses during trial is not a Sixth Amendment right to confrontation violation when necessitated by an on-going pandemic.

On January 22, 2020, defendant Carlos Hector Alvarez—not the most clever burglar in history—was observed via Elen and Stephan Arabian’s home security cameras climbing over a fence into the victims’ backyard.  The Arabians continued to watch defendant as he tried to open the door to a converted (furnished) attached garage which Stephan used as his “cigar room.”  Los Angeles Sheriff’s deputies Luis Capilla and Vincent Soto, responding to the Arabian’s 911 call, were led through the house by the Arabians into the garage.  As they unlocked and opened the door from the garage to the outside, the door suddenly “flung open” and an undoubtedly surprised defendant stepped inside.  He was immediately taken into custody.  The doorknob to the garage was later found to have been damaged by defendant’s efforts to break in.  It was also observed at the time that defendant was wearing socks on his hands in an apparent attempt to avoid leaving fingerprints.  As the handcuffed defendant was led to the patrol car, a large plastic trash bag was observed near the side gate.  Deputy Soto asked defendant whether the bag was his, to which he replied; “Yeah.” No Miranda warnings were administered.  Charged in state court, a jury later convicted defendant of first degree residential burglary (Pen. Code § 459) with a person other than an accomplice present (Pen. Code § 667.5(c)(21) [which we used to label as a “hot prowl burglary;” i.e., a residential burglary when the victims are at home,]). Defendant was sentenced to the middle term of four years in state prison. He appealed.

The Second District Court of Appeal (Div. 7) affirmed.  Defendant raised two issues on appeal; (1) the admission into evidence of his “Yeah” response when asked if the trash bag was his, and (2) the mandated wearing of facemasks in court as a violation of his Sixth Amendment right to confrontation. 

(1) Miranda:  As noted above, when the arrested and handcuffed defendant was being led to the patrol car, a plastic trash bag was observed near a side gate.  Asked if the bag was his, defendant’s response (“Yeah”) was important evidence on the issue of his intent (an element of the burglary) in that it was arguable that he had brought the bag with him for the purpose of hauling away the hoped-for loot.  Defendant had not yet been advised of his Miranda rights when he made this admission.  Defense counsel failed to bring a pre-trial in limine motion challenging the admissibility of defendant’s affirmative response when asked if the bag was his.  Instead, he waited until mid-trial to object when the first deputy to testify was asked if defendant had been asked about the bag.  The trial court overruled defense counsel’s objection to the prosecutor’s question.  But then when the deputy was asked for defendant’s response, counsel failed to object.  Counsel also failed to object when the second deputy was asked the same questions.  In closing arguments, the prosecutor cited defendant’s affirmative response about the bag, it being relevant to his intent to steal, again without objection.  On appeal, defendant argued that his Miranda rights had been violated by allowing into evidence his un-Mirandized admission to the ownership of the plastic bag.   The Appellate Court declined to rule on this issue, however, noting that by failing to register a timely objection, he had forfeited the issue.  (See, however, “Note” below.)  

(2)  Sixth Amendment Confrontation and the Wearing of Facemasks:  Defendant’s trial occurred during the COVID-19 pandemic.  Because of this, everyone in the courtroom, including the witnesses, were required to wear facemasks.  When the issued was discussed pre-trial, the trial court judge ruled that at most, witnesses would be allowed to remove their masks “momentarily,” “so they can be seen.”  But otherwise, facemasks would be required.  Noting that the masks used would cover from the tip of the witness’ nose to the mouth, it was conceded that the jurors would still be able to see their eyes and “a lot of expression in that part of their face.”  On appeal, defendant argued that the wearing of facemasks by the witnesses deprived him of his Sixth Amendment confrontation rights.  Specifically, he complained that the jury would be unable to properly evaluate a witness’ demeanor while testifying; an important element in evaluating that witness’ credibility.  The Court disagreed.  The principles at play are well established.  “The confrontation clause of the Sixth Amendment, applicable to the states through the 14th Amendment, provides, ‘In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . .’  This right ‘provides two types of protections for a criminal defendant: [T]he right physically to face those who testify against him, and the right to conduct cross-examination.’”  (Coy v. Iowa (1988) 487 U.S. 1012, 1017.)  The Court noted, however, that while the Sixth Amendment right to confront one’s accusers is certainly important, it is not absolute. “Rather, ‘the Confrontation Clause reflects a preference for face-to-face confrontation at trial,’ [citation], a preference that ‘must occasionally give way to considerations of public policy and the necessities of a case.’”  (Italics in original: Maryland v. Craig (1990) 497 U.S. 836, 849.)  A pandemic is just such an exception.  As such, the Court found that wearing facemasks (along with social distancing) in a courtroom serves an “important state interest in protecting the public from a contagious, and too often, lethal, disease.”  The Court further noted that as long as certain “procedural safeguards” were respected, compromising to some degree one’s Sixth Amendment confrontation rights is acceptable.  Those procedural safeguards referred to by the Court are; (1) in-person testimony, (2) given under oath, (3) subjected to cross-examination, and (4) the ability of the defendant and fact finder to view witness demeanor for the purpose of evaluating credibility. (Craig, supra, at pp. 845–846.)  The Court found that despite the partial face coverings, all four safeguards were present in this case.  “Witnesses testified in the solemnity of the courtroom and in the presence of defendant, under oath, and subject to rigorous cross-examination.”  (The Court referred to the latter—cross-examination—as “the greatest legal engine ever invented for the discovery of truth.”)  Based upon the above, the Court found no error in requiring witnesses to wear facemasks while testifying against the defendant.

At footnote 7 of this decision, the Court cites a pile of out-of-state decisions that reached the same conclusion on the facemask issue.  And additionally, the day after this case was published, Division Eight of the Second District Court of Appeal issued a similar confrontation ruling in People v. Lopez (Feb. 15, 2022) __ Cal.App.5th __ [2022 Cal.App. LEXIS 122].  In Lopez, the Court further noted that with the pandemic raging on, it was a matter of either postponing the trial indefinitely, which compromised the defendant’s “speedy trial” rights (also a Sixth Amendment issue), or having the witnesses wear masks.  So the facemask vs. confrontation issue is pretty well settled.  As for the Court’s refusal to consider his Miranda argument on appeal, it is arguable that even if allowing into evidence defendant’s admission that he’d brought a plastic trash bag with him was error, it was likely “harmless,” given other unrebutted evidence of defendant’s intent to commit a burglary (i.e., wearing of socks over his hands, surveillance camera video of his suspicious activities in the victims’ backyard where he had no business being, and the damaged door knob).  But the Court also ducked what could have been an interesting discussion as to whether Miranda had in fact been violated.  On its face, all the elements of a Miranda requirement seem to be there; i.e., law enforcement asking an in-custody suspect a question that was likely to elicit an incriminating response.  (See Rhode Island v. Innis (1980) 446 U.S. 291, 300-302.)  But there’s also a viable argument, supported by some (reasonably) good authority, that the circumstances present here don’t really constitute the type of situation that Miranda was intended to address.  (E.g., see People v. Claxton (1982) 129 Cal.App.3rd 638: A general, rhetorical question, such as, “What did you get yourself into?” was held to not be the functional equivalent of an interrogation.  See also United States v. Yusuff (7th Cir. 1996) 96 F.3rd 982, at pg. 988: An officer’s question, “What’s this?”, in the course of a pat-down search; no interrogation.)  Miranda was intended to address the coerciveness of an interrogation of an in-custody suspect.  It’s certainly arguable that a simple, non-accusatory question related to his ownership of a plastic bag observed sitting on the ground was not the type of questioning that Miranda prohibits.  But because defendant’s attorney forfeited that issue by being a bit slow on the draw, we’ll never know how this Appellate Court might have ruled on this issue.

• The Second Amendment and Drug Possession
• H&S Code § 11370.1; Possession of a Controlled Substance While Armed

Health and Safety Code § 11370.1, making it illegal for a person in possession of a controlled substance to also be in possession of a loaded, operable firearm, does not violate the Second Amendment right to bear arms.

Defendant Daniel Edwards Gonzalez was found asleep by a police officer while parked at the side of the road with .6 grams of methamphetamine and a loaded gun at his feet.  Having a prior felony record, he was charged in state court with being a felon in possession of both a firearm (P.C. § 29800(a)(1)) and ammunition (P.C. § 30305(a)).  Because he possessed both a loaded operable firearm and a controlled substances, he was further charged with being in possession of a controlled substance while armed (H&S § 11370.1). Convicted of everything, and with a couple of prior strikes being found to be true, he was sentenced to six years in prison.  Defendant appealed.

The Fourth District Court of Appeal (Div. 2) affirmed.  The sole issue on appeal was the constitutionality of H&S § 11370.1; “being in possession of a controlled substance while armed,” at least as it might pertain to defendant.  Subdivision (a) of section 11370.1 prohibits the possession of any of a number of specifically listed controlled substances (including methamphetamine) while also being “armed with a loaded, operable firearm.” Defendant argued on appeal that section 11370.1 violated his Second Amendment right to bear arms.  This argument was based upon the supposition that to be constitutional under the Second Amendment, a statutory restriction on gun possession must be limited to “preventing violent crime.”  Specifically, defendant argued that section 11370.1 violated his Second Amendment right to keep and bear arms because, as written, it targets “nonviolent criminals” as well, such as himself.  The Court, in ruling against defendant, held that there is no constitutional impediment to enacting a statute that prohibits the possession of a firearm while also in possession of a controlled substance.  The landmark U.S. Supreme Court decision in this area of the law is District of Columbia v. Heller (2008) 554 U.S. 570, where the High Court—in noting that the rights and privileges under the Second Amendment are not absolute—ruled that, “‘the Second Amendment is not unlimited’ and does not grant ‘a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.’” (Heller, at p. 626.)  In Heller, the U.S. Supreme Court noted that contrary to the argument made by many gun control advocates, the Second Amendment is not limited to the context of militia service.  Rather, the “core” of the Second Amendment is targeted towards protecting “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” (Italics added; Id., at pp. 634–635.)  Heller used as examples of constitutionally permissible statutory prohibitions on firearm possession when it is possessed by a convicted felon, or by someone who is mentally ill.  Also permissible is the limiting of firearms in sensitive places such as schools and government buildings. (Ibid.)  The Supreme Court found that such prohibitions are “presumptively lawful regulatory measures,” noting that this short list was intended to be “exemplary, not exhaustive.” (Id. at p. 627, fn. 26.) Two years later, in McDonald v. City of Chicago (2010) 561 U.S. 742, the Supreme Court repeated its assurances that the Second Amendment “does not imperil every law regulating firearms” and that the kind of longstanding restrictions mentioned in Heller remain presumptively valid. (Id., at pg. 786.)  California is obligated to follow this reasoning in that the High Court in McDonald specifically ruled that the Second Amendments’ protections apply to the states.  (Id., at pp. 785-786.)  Subsequent to Heller and McDonald, federal courts developed a two-step test for assessing Second Amendment challenges to statutory restrictions on firearms possession.  First, it must be determined “whether the challenged law burdens conduct that falls within the scope of the Second Amendment’s guarantee of protecting the right of responsible, law-abiding citizens to possess firearms to protect their home.” (Gould v. Morgan (1st Cir. 2018) 907 F.3rd 659, 668–669.)  If it does not, then that ends the issue.  The statute as issue is constitutional.  If, however, the law does infringe on a law-abiding citizen’s right to possess firearms, then, secondly, a court must inquire into “the strength of the government’s justification” for the law by balancing the statute’s objectives against the means it employs to accomplish those ends; i.e. “how close the law comes to the core of the Second Amendment right and the severity of the law’s burden on the right.” (Ezell v. City of Chicago (7th Cir. 2011) 651 F.3rd 684, 703.)  In Daniel Gonzalez’s case (being briefed here), the Appellate Court held that defendant didn’t even get past the first step of this analysis.  While the Supreme Court has yet to rule on this issue, and no lower appellate court has yet to specifically hold that H&S § 11370.1 is in fact consistent with the Second Amendment, the Court had no problem finding, as a matter of first impression, that it is.  Looking at federal circuit court opinions, the Court reviewed the following holdings, all of which are consistent with this conclusion.  In United States v. Jackson (7th Cir. 2009) 555 F.3rd 635, 636, it was held that “there is no constitutional problem with separating guns from drugs.”  In United States v. Greeno (6th Cir. 2012) 679 F.3rd 510, the Sixth Circuit upheld the constitutionality of a sentence enhancement penalizing the carrying of a dangerous weapon during the commission of a drug offense.  The Second Circuit, in United States v. Bryant (2nd Cir. 2013) 711 F.3rd 364, at pg. 369, recognized that there is “an implicit limitation” on the exercise of one’s right to bear arms to when it is done “for ‘lawful purpose[s],’” rejecting a Second Amendment challenge to a federal law criminalizing the possession of a firearm in furtherance of a drug trafficking crime (i.e.,18 U.S.C. § 924(c)(1)(A)).  The Ninth Circuit, in United States v. Potter (9th Cir. 2011) 630 F.3rd 1260, also rejected a defendant’s Second Amendment challenge to this same federal violation in a ruling similar to that made by the Second Circuit in Bryant.  And in the State of Colorado, it was held in a state court decision (People v. Cisneros (Colo.Ct.App. 2014) 356 P.3d 877.) that a law penalizing possession of a firearm “in connection with a person’s commission of a felony drug offense” is constitutional, specifically because the statute “does not apply to law-abiding citizens, . . .  (and as such,) does not infringe on the Second Amendment right to bear arms.” (Id. at p. 887.)  While not discussing the Second Amendment specifically, California’s appellate courts have noted that “the purpose of section 11370.1 is ‘to protect the public and law enforcement officers and “stop the growing menace from a very deadly combination—illegal drugs and firearms.’”’” (In re Ogea (2004) 121 Cal.App.4th 974, 984, italics added by this Court; quoting People v. Pena (1999) 74 Cal.App.4th 1078, 1082.)  Lastly, the Court cited United States v. Yancey (7th Cir. 2010) 621 F.3rd 681, 686, which upheld the constitutionality of a statute prohibiting drug abusers from possessing firearms based in part on “studies [that] amply demonstrate the connection between chronic drug abuse and violent crime.”  In conclusion, and based upon the above, the Court held here that it is “reasonable to assume (that) a person armed with a loaded, operable firearm during the commission of any crime” (italics added) might well feel the need to use that weapon to avoid being arrested and/or to maintain possession of their illicit stash.  Coming back to H&S § 11370.1, the Court held that the potentially “deadly combination” of illegal drugs and firearms “is precisely what the Legislature intended to address” when it enacted this section, and it does not violate the Second Amendment to do so.   For these reasons, defendant’s challenge to the constitutionality of section 11370.1, based upon Second Amendment grounds, was denied.

I briefed this case because it includes a lot of important prior case decisions on the Second Amendment’s “right to bear arms,” and its rationale in upholding statutes which, on their face, might otherwise be interpreted to be unconstitutionally overly restrictive.  Of primary importance is the Court’s citation to law making it clear that—while not being limited to a state’s organized “militia”—the Second Amendment’s right to bear arms provision is intended to protect only “responsible, law-abiding” persons.  It’s not usually difficult to determine who is, or who is not, “law-abiding,’ depending upon how you interpret this term.  Typically, you only need to check the person’s readily available rap sheet.  But how do you quantify (or define) the term “responsible?”  Defendant here, with a prior criminal history and being found in possession of dope and an illegal firearm, certainly can’t be classified as “responsible,” so that was not even an issue here.  Resolution of this issue, therefore, must await another day.

• Forfeiture by Failing to Object
• Coerced Confessions and Due Process
• Threats to Charge a Relative as an Inducement to Confess

Failure object to the admissibility of evidence at the trial court level precludes, as a general rule, an appellate court from considering the issue.  An appellate court, however, has the discretion to consider an issue not previously objected to if the issue involves pure questions of law on undisputed facts.  A confession coerced by a threat to arrest a close relative is a violation of the Due Process Clause and not admissible in evidence.  An exception to this rule applies when probable cause to arrest the relative exists.

Defendant Enrique Mayorga Jimenez lived in a residential neighborhood in the City of Highland, California, on Elmwood Road, with his two sons (ages 14 and 17) and his elderly disabled mother.  Seven or eight doors down the street was the residence of Morris Barnes; a gang member known to defendant as “Maurice.”  Defendant had heard rumors that Maurice—who he considered to be a friend—and his gangster homies were planning to do a home invasion robbery at defendant’s residence, intending to steal marijuana that defendant grew in his house.  On May 19th of 2016, defendant, while outside, encountered Maurice walking down the street in front of his house.  Defendant—thinking about maybe killing Maurice but not yet being able to make up his mind—invited him into his garage for a beer.  As the two of them sat there drinking together, defendant eventually told Maurice: “I don't understand how can you tell my business to other people and put my mom and my family in harm’s way.”  Maurice’s repeated denials to knowing what he was talking about only pissed defendant off.  Knowing only one way to “make sure that nothin’ happens to my mom,” defendant went into his house and got a kitchen knife.  Returning to the garage, defendant grabbed Maurice in a headlock and stabbed him in the neck and back, killing him.  He then stuffed Maurine’s body into a trashcan and poured gasoline on his remains.  That night, Maurine enlisted the aid of his two sons and took Maurice’s body—still stuffed into the trashcan—to an open field where he intended to light it on fire. Just then, however, Sheriff’s Deputy Jeffrey Casey happened to be driving by.  Deputy Casey observed the three males and their trashcan in the field.  Suspecting that they might be illegally dumping trash, Deputy Casey drove up to them as he turned on his overhead lights, intending to detain the suspects.  Defendant and his sons reacted by fleeing the scene in their Chevy Suburban.  And so the pursuit was on.  The chase went only a few blocks, however, before defendant made a U-turn, returning to the trashcan where he hurriedly tossed a cigarette lighter into the can, setting it (along with Maurice’s body) on fire.  Defendant then sped off again.  As Deputy Casey and other units followed defendant’s Suburban with lights flashing and sirens on, defendant stopped near his house where he dropped off his two sons; both of whom were immediately arrested.  The pursuit went on for some time after that, over various Southern California freeways, eventually ending up in the City of Downey.  Defendant was finally arrested when he ran out of gas.  In a subsequent videotaped interview with a detective, defendant first claimed that he’d found Maurice’s body in a neighbor’s trash.  However, after certain promises were made relative to his sons, defendant fully confessed.  Specifically, in discussing defendant’s son’s possible involvement in Maurice’s murder, the detective told defendant that; “. . . (Y)ou’re gonna be the one to help them. . . . (b)ecause I’m gonna have to charge them with the death of the guy. . . . (u)ntil I find out what happened.”  Defendant responded:  “Okay, well I'll talk to ya and tell ya what happened, okay?”  To make sure they were both on the same page, the detective added:  “So I want to be able to try to help you and your boys, mostly the boys, so— . . . (s)o we don't have to make them criminals.”  Defendant at that point provided a Mirandized confession to killing Maurice and attempting to dispose of his body.  His motivation for confessing to murdering Maurice—as he later testified—was to prevent his sons from being charged with murder and taken to Juvenile Hall.  Defendant’s confession was used against him at trial without objection from his attorney.  Convicted of first degree murder and other charges, he was sentenced to 29-years-to-life.   Defendant appealed.

In a split 2-to-1 decision, the Fourth District Court of Appeal (Div. 2) reversed.  Two issues were discussed on appeal:  (1) Whether defendant forfeited the issue of the admissibility of his confession by his attorney’s failure to object at trial, and (2) whether (if not forfeited), his confession was admissible under the circumstances. 

(1)  Forfeiture:  The basic rule is that absent an objection to the admissibility of some specific piece of evidence (defendant’s confession in this case) at the trial court level, the issue is “forfeited.”  It cannot be considered by an appellate court.  However, there is an exception to this rule.  (Isn’t there always?)  Despite the lack of an objection, an appellate court has the discretion to consider an issue if it involves “pure questions of law on undisputed facts.”  In this case, the facts surrounding defendant’s confession were not in dispute; his confession being on videotape.  And the Court found the issue to be “pure(ly a) question of law,” i.e., the admissibility of a confession when precipitated by an interrogator’s threat to criminally charge a close relative.  The Court, therefore, decided to exercise its discretion and consider the trial admissibility of defendant’s confession. 

(2)  Admissibility of Defendant’s Confession:  On appeal, defendant argued that his confession, motivated by the detective’s threat to criminally charge his two sons if he didn’t cooperate, was “coerced;” a constitutional “due process” issue.  The basic rules on this issue are well established: “The use of coerced (i.e., ‘involuntary’) confessions, whether true or false, is forbidden because the method used to extract them offends constitutional principles.” (Lego v. Twomey (1972) 404 U.S. 477, 485.)  Although statements obtained in violation of the Miranda rules, although suppressed in the People’s case-in-chief, may still be used for purposes of impeachment should the defendant take the witness stand and lie, coerced confessions are inadmissible for any purpose.  Whether or not a confession is the product of a law enforcement officer’s coercion depends upon an evaluation of the “totality of the circumstances,” with no single factor being dispositive.  For defendant’s confession to be found to be the product of “coercive police activity,” however, it must be determined whether his eventual confession was “causally linked” to his interrogator’s illegal coercion. (People v. Guerra (2006) 37 Cal.4th 1067, 1093.) With these rules in mind, the majority of the Court here had no problem finding that defendant’s eventual confession was in fact the product (i.e., “causally linked”) of the detective’s threat to charge his two sons with a criminal offense (i.e., murder, or perhaps being an accessory after the fact, per Pen. Code, § 836(a)(2)) if he didn’t cooperate.  In so ruling, the Court noted that the detective initially played on defendant’s emotions, telling him that his sons were “a little afraid.” This was followed by the detective saying: “I’m gonna have to charge them with the death of this guy . . . (u)ntil I can find out what happened.”  Defendant was also told that this was up to him:  “(Y)ou’ve gonna be the one to help them.”  Up until this point, defendant was claiming to have found Maurice’s body in a neighbor’s trashcan.  But after being told that his cooperation was the key to whether or not his sons would be charged, defendant told the detective: “I’ll talk to ya and tell ya what happened, okay?”  And then to cement the deal, the detective reiterated to defendant:  “And then once we do all of that, then we’ll be able to, you know, to clear them from this and then we’ll move on, okay?” The detective also added; “So I want to be able to try to help you and your boys, mostly the boys,” “[s]o we don’t have to make them criminals.”  Clearly, defendant’s confession was not “self-motivated.  It was the direct product of the detective’s threat to charge his sons if he didn’t cooperate.  The case law is clear that threats to incarcerate a close relative used as an inducement to get a suspect to confess is a due process violation.  The People in this case, however, cited an exception to the rule to the effect that when there is probable cause to believe that the relative (the two sons in this case) did in fact commit a crime for which they could be arrested, threatening to do so is not a due process violation and is not impermissible.  (See People v. Boggs (1967) 255 Cal.App.2nd 693.)  The detective in this case, however, admitted to defendant that his sons, based upon what they had told him, were probably not liable to the charge of murder.  The fact that they might instead be liable for some charge other than murder (such as “accessories after the fact”) renders this exception (per the Court) inapplicable.  (But, see Note, below.) As such, the Court ruled that the fact that there might have been probable cause to arrest the sons for something other than murder does not change their ruling.  Defendant’s due process rights were still violated.  Finding the error in admitting defendant’s confession into evidence to be prejudicial, the Court reversed his conviction for murder and remanded the case to the trial court for further proceedings.

The Court’s ruling that you can’t threaten to bucket a “near relative” as a means of motivating a suspect to confess has been around for almost eight decades, and is clearly correct.  (See People v. Mellus (1933) 134 Cal.App. 219, 225; and People v. Matlock (1959) 51 Cal.2nd 682, 697; “A confession coerced by a threat to arrest a near relative is not admissible.”)  The detective in this case should have known this and perhaps tailored his questioning accordingly.  However, that doesn’t necessarily mean that he screwed up.  The dissenting opinion (this being a 2-to-1 decision) argued that aside from the issue being forfeited by defense counsel’s failure to object (disagreeing with the majority on this issue), defendant’s motivation for confessing was not an attempt to keep his sons from being charged with murder, but rather that they merely be released from custody at that time and not taken to Juvenile Hall.  The dissent also points to comments made indicating that defendant was well aware that the D.A. would be making the decision whether or not to charge his sons, and not the detective, taking the wind out of the argument that he confessed to keep the detective from charging his sons with murder.  And perhaps more importantly, remembering that it is not error to threaten to charge a close relative with a crime when there is probable cause to believe that the relative did in fact commit some crime (People v. Boggs, supra.), the dissent pointed out that when the detective was questioning defendant, he didn’t know to what degree the sons might have been involved. The detective was not required to believe the sons when they claimed that they didn’t participate in the murder itself.  And as noted by the dissent, the sons, as far as the detective knew at that point, could have been criminally liable for anything from being accessories after the fact to the murder itself.  For this reason, as argued by the dissent, the Boggs exception does in fact apply in this case despite the majority’s opinion to the contrary.  Additionally, I might point out—also contrary to the majority’s express opinion— that there is also absolutely no case law saying that for the Boggs exception to apply, the crime which the relative is suspected to have committed (the sons likely being guilty of at least being accessories after the fact), and that the detective is threatening to charge them with, has to be the same crime for which the defendant is being charged.  Bottom line; there are some contestable points here making this case ripe for reconsideration at the Supreme Court level.  Hopefully, it will be taken up.