California Supreme Court Limits the Early Release of Violent Felons Under Proposition 57

In 2019, a California Appeals Court held that Proposition 57 allowed those convicted of multiple violent and nonviolent crimes to qualify for early release after serving only the sentence for one of the nonviolent crimes. The California Supreme Court found that the language in Proposition 57 was ambiguous, and upon reviewing ballot materials, concluded that the initiative did not require the early release of violent felons. Voters were told that Proposition 57 permitted early parole eligibility for state prisoners “convicted of a nonviolent felony offense” after completing the full term of their primary offense. Ultimately, sentencing courts have the authority to decide which crime to designate as the primary offense. 

Proposition 57 left it to the California Department of Corrections and Rehabilitation (CDCR) to devise the rules to determine which inmates qualified for early release. The CDCR excluded inmates serving a sentence for a violent crime from early parole consideration. 

For example, in early 2012, the named Defendant pleaded no contest to nine counts of robbery (violent felonies) and six counts of receiving stolen property (nonviolent felonies). The sentencing court designated one of the nonviolent felonies as the principal offense, with sentencing enhancements added, the total sentence was 29 years. 

After completing his three-year term for the nonviolent primary offense, the Defendant requested early parole. CDCR denied his request. The Defendant appealed, and on November 26, 2019, a three-judge panel of California’s Second District Court of Appeal granted relief because the Defendant had completed the full term of his primary offense. The Court found that under Proposition 57, the Defendant was eligible for early parole consideration even though he was also convicted and sentenced for violent offenses. The Court of Appeal interpreted the measure to mean that an inmate who is serving an aggregate sentence for more than one conviction will be eligible for an early parole hearing if one of those convictions was for “a” nonviolent felony offense. 

Ultimately, California Supreme Court’s unanimous decision overturned the 2019 appeals court ruling, concluding that the initiative did not require the early release of violent felons.

PERB Finds Duty to Bargain When a Proposed Ordinance Impacts Discipline

In a recent decision by the Public Employee Relations Board (PERB), the Board concluded that the County had a duty to bargain over the impacts of the proposed ordinance when it created new grounds for discipline. (Santa Clara County District Attorney Investigators’ Association v. County of Santa Clara (2021) PERB Decision No. 2799-M.) In this case, the Santa Clara County District Attorney Investigators’ Association (“Association”) brought an unfair practice charge against the County of Santa Clara for failing to meet and confer before unilateral implementing an ordinance that regulated County-owned surveillance technology. The ordinance created reporting requirements for County departments and made it a criminal misdemeanor to misuse County-owned surveillance technology. 

The Association met and conferred with the County over four concerns: (1) the definition of surveillance technology was too broad; (2) the increase in workload with the reporting requirements; (3) the reporting requirements would compromise employee safety by giving the public advance notice of how the technology was being used; and (4) the criminal misdemeanor criminalized workplace conduct, which created increased risk of liability when paired with a vague definition. However, the County refused to discuss the definition of surveillance technology and the language of the misdemeanor provision, stating that impact bargaining did not include changes to the ordinance. The County adopted the ordinance after two meetings with the Association and before reaching any agreements with the Association or declaring impasse. 

PERB found that the Association had to the right to bargain over the ordinance’s consequences to Association members. The County argued that the entire ordinance was a fundamental management right under section 3504. PERB balanced “the benefits of bargaining over the decision against the employer’s managerial interest in making the decision.” (Claremont Police Officers Association v. City of Claremont (2006) 39 Cal. 4th 623, 637.) The Association relied the decision from County of Sonoma to argue that the definition of surveillance technology is subject to decision-based bargaining. (County  (2021) PERB Decision No. 2772-M.) In Sonoma, Sonoma County placed an ordinance on the ballot that increased the authority of Sonoma County’s Independent Office of Law Enforcement Review and Outreach (“IOLERO”). The Mastagni Firm obtained a ruling the IOLERO ordinance was subject to decision bargaining because it directly altered an existing investigatory and disciplinary structure PERB distinguished Sonoma, reasoning that the Santa Clara Ordinance is primarily focused on privacy, and its impact on employment is secondary. Therefore, the definition of surveillance technology was not subject to decision-based bargaining but was subject to impacts bargaining. 

PERB also found that the misdemeanor provision was subject to impacts and effects bargaining. Further, the misdemeanor provision would likely be subject to decision bargaining because it creates new grounds for discipline. However, PERB decided that the County had the duty to bargain over the impacts because there was little information on how the misdemeanor provision would apply to non-employees and the ordinance had been in effect for five years. Finally, PERB determined the County violated its duty to bargain over the effects when it refused to respond to the Association’s proposals and did not reach impasse.

Does The "Alter Ego" Doctrine Apply To Workers' Compensation?

In 2021 Cal. Wrk. Comp. P.D. LEXIS 302, Mastagni Holstedt, A.P.C. with Associate Attorney, Jonathan D. Char argued that the Workers’ Compensation Appeals Board frustrated the applicant’s recovery by issuing an award only against a corporation (dissolved) and not against the owner. Upon petition for reconsideration, the Workers’ Compensation Appeals Board found the alter ego doctrine is consistent with their mission so application of the alter ego doctrine may be warranted in a Labor Code section 132a claim. 

At the trial level, the court found that the Workers’ Compensation Appeals Board did not have jurisdiction to “pierce the corporate veil” thus impose joint and several liability on an individual shareholder in a Labor Code section 132a proceeding and therefore issued the section 132a award only against a corporation (dissolved). In contrary belief, the applicant contended the Workers’ Compensation Appeals Board had authority to issue the award against the owner under the doctrine of “alter ego” because there was no difference between the owner and the corporation (dissolved).

The court explained imposition of individual owner liability lies with the civil courts and although exceptions did exist, those exceptions did not apply since the employer had workers' compensation insurance. The trial judge went on to say the Legislature enacted the Corporations Code to allow the formation of corporations with the primary purpose to allow individuals to separate their individual lives and the corporate identity and it would defeat the purpose of the Corporations Code. 

Upon reconsideration, the Workers’ Compensation Appeals Board explained courts now give more weight to whether the corporation is in fact controlled by the individual sought to be held liable. In discussion, the court explained unity of interest does not have to be complete ownership and conditions under which the corporation may be regarded as the alter ego of the stockholders vary according to the circumstances in each case. Consequently, the Workers’ Compensation Appeals Board found the alter ego doctrine is consistent with their mission so its application may be warranted in a Labor Code section 132a claim. 

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Supreme Court Blocks COVID-19 Vaccine Rule For US Businesses, Allows Rule For Healthcare Workers

On Thursday, January 13, the Supreme Court halted the enforcement of COVID-19 vaccine and testing rules, one of President Biden's main efforts to combat the virus. The court concluded that the administration overstepped its authority by seeking to impose the Occupational Safety and Health Administration’s vaccine-or-test rule on U.S. businesses with at least 100 employees, affecting more than 80 million people. 

The Supreme Court stated that OSHA lacked the authority to impose such a mandate because the law that created OSHA "empowers the Secretary to set workplace safety standards, not broad public health measures." However, the stay of OSHA’s COVID–19 Vaccination and Testing; Emergency Temporary Standard, 86 Fed. Reg. 61402 are temporary pending appeals in the United States Court of Appeals for the Sixth Circuit and disposition of the applicants’ appeals back to the Supreme Court, if any. If the appeal(s) to the Supreme Court are denied, the order will terminate automatically. In the event the appeals to the Supreme Court are granted, the order will terminate upon a new judgment of the Supreme Court. 

"Although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most," the Court ruled. "COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases." -The Supreme Court 

The vaccine mandate that the court will allow to be enforced nationwide scraped by on a 5-4 vote. The mandate covers many health care workers in the country, affecting 10.4 million workers at 76,000 health care facilities as well as home health care providers. The rule has medical and religious exemptions. 

More than 208 million Americans, 62.7% of the population, are fully vaccinated, and more than a third of those have received booster shots, according to the federal Centers for Disease Control and Prevention. A separate vaccine mandate for federal contractors, on hold after lower courts blocked it, has not been considered by the Supreme Court. 

The current decision of the Supreme Court concerning OSHA’s mandate believes they exceeded its statutory authority and the rule is otherwise unlawful. It appears the Supreme Court is poised to strike this down if it comes up again in the future. However, the short answer is that while the mandate for large businesses is currently not enforceable, the fight is not over.

CA State Bar Once Again Delays Proposed Rule That Would Prohibit Police Unions Donating to DA Candidates

On Friday, January 7, the California State Bar’s Committee on Professional Responsibility and Conduct (COPRAC), met again to review a proposal created by four California District Attorney’s which prohibits an elected prosecutor, or a candidate seeking election, from soliciting or receiving political or financial support from law enforcement unions. Following public comment, the committee announced for a second time that they would not discuss the proposal, leaving the decision unresolved.

This proposal, written by San Joaquin County DA Tori Verber Salazar, Contra Costa County DA Diana Becton, San Francisco DA Chesa Boudin, and former San Francisco DA George Gascón, was first introduced in June 2020. The State Bar committee discussed the proposal from the Prosecutor's Alliance for the first time in December 2020, and paused on making any decisions due to advocates fighting against it, saying the rule discriminates against law enforcement and is a clear violation of First Amendment rights. 

While only four out of the 58 California DA’s presented this proposed rule, is this a slippery slope to discriminate against certain groups from participating in the political process? The four DA’s argue that prosecutors cannot ethically investigate and prosecute police misconduct when police unions, sheriff’s offices and correctional divisions offer their endorsements and financial support. That conflict of interest also erodes public trust in law enforcement, they said. However, there are already rules and systems in place within the State Bar to address conflicts of interest that might arise between prosecutors and police unions; rules that all DA’s are required by law to follow. 

Further, the proposed rules blatantly violates the First Amendment as content based restriction on the political speech of the progressive prosecutors political opponents, i.e. groups promoting public safety and consideration of the rights of victims of crime.  The Mastagni law firm assisted the Peace Officers' Research Association of California in submitting a letter to COPRAC the urging them to refrain from interposing themselves in an inherently political issue, which these prosecutors are promoting to obtain an unfair electoral advantage in campaign contributions and endorsements. Notably, the proposed rule does not seek to restrict the political participation of other groups supporting prosecutors' Alliance, such as Black Lives Matter, the Real Justice PAC or Open Societies, nor require the recusal of prosecutors who render charging decisions involving members of these groups.    

Neutrality of the State Bar is vital in serving its primary functions of licensing, regulation and discipline of attorneys; the advancement of the ethical and competent practice of law; and support for greater access and inclusion in the legal system. Ultimately, if the proposed rule is approved by COPRAC, it still must be approved by the California Supreme Court. 

Read PORAC's Letter Re: DA Contributions

Speakers who voiced their support or opposition of the proposal on Friday, January 7:

Public Comment: 

• Support: 

1. Alana Mathews 
2. Joseph Iniguez, Chief of Staff, Los Angeles DA 
3. Natasha Minsker, Attorney & Consultant, Renne Public Law Group
4. Cristine Soto DeBerry, Founder & Executive Director, Prosecutors Alliance 
5. MJ King
6. Adrian Carpenter, Prosecutors Alliance of California 
7. Maraky Alemseged, BLM LA and Black Alliance for Just Immigration
8. Kate Chatfield, Chief of Staff, San Francisco DA
9. Max Szabo,  Principal at Szabo & Associates
10. Shelia (no last name, no organization affiliation provided) 

• Oppose: 

1. Wade Stern, President, Federated University POA
2. JJ Puglisi, President, Burbank POA
3. Mike Nichelini, President, Vallejo POA
4. Jeff Swearingen, Placer County LEMA
5. Nick Odenath, President, Ventura County Deputy Sheriffs Association 
6. Damon Kurtz, Vice President, PORAC 
7. Michael Hastings, President, Burbank Police Foundation, Former Mayor of Burbank 
8. Rob Taylor, President, Los Angeles School Police Management Association 
9. Bryan Zmijewski, President, San Diego District Attorney Investigator’s Foundation
10. Carl Huber, President, San Rafael POA 
11. Marshall McClain, President, LAAPOA 
12. Vern Pierson, Past President, California District Attorneys Association
13. Aaron Read, representing CAHP 
14. Cheryl M., Los Angeles Port POA 
15. Steve Bassi, Merced County Law Enforcement Sergeants Association

 

AB 48 - Kinetic Energy Projectiles and Chemical Agent Restrictions

It has long been recognized and understood that peace officers are authorized to use reasonable force to effect a lawful arrest, to prevent escape, or to overcome resistance, and that officers have a duty to act reasonably under the totality of the circumstances when utilizing force. In 2019, with the enactment of AB 392 (California Penal Code §835a), the California legislature affirmed that deadly force should be restricted to situations where it is deemed necessary for the defense of human life and that officers are expected to use less lethal force options and other available resources and techniques if an objectively reasonable officer would find it reasonably safe to do so. 

With the recent enactment of Assembly Bill 48 (California Penal Code § 13652), which became effective January 1, 2022, the legislature has now provided additional clarification concerning the expectations for law enforcement officers tasked with policing public gatherings that are not deemed to be objectively dangerous and unlawful. Specifically, officers are now prohibited from using kinetic energy projectiles or chemical agents to disperse any assembly, protest, or demonstration, except by trained officers who deem the deployment objectively reasonable to defend against a threat to life or serious bodily injury to any individual, or to bring an objectively dangerous and unlawful situation safely and effectively under control. Officers are also now specifically prohibited from using these less lethal options solely due to a violation of an imposed curfew, verbal threat, or noncompliance with a law enforcement directive. The frequency, intensity, and manner in which these force options are deployed must also be proportional to the threat and objectively reasonable. 

Under the newly enacted provisions of AB 48, officers are also required to minimize the possible incidental impact of their use of these force options on bystanders, medical personnel, journalists, or other unintended targets. Noticeably, this provision of the statute does not reference any exceptions for situations where minimization of the possible impact on bystanders may be deemed impossible by an objectively reasonable officer. The new statute also prohibits the indiscriminate aiming of projectiles into a crowd or group of persons or at the head, neck, or any other vital organs of a target subject. When objectively reasonable to do so, officers are required to attempt deescalation techniques or other alternatives prior to deploying kinetic energy projectiles and chemical agents. Additionally, the statute requires officers to issue repeated, audible announcements that they intend to use kinetic energy projectiles and chemical agents and the type to be used. Prior to deployment, subjects must be provided an opportunity to disperse and leave the scene and officers must target deployment of these force options only toward those individuals engaged in violent acts. Finally, only commanding officers at the scene of an assembly, protest, or demonstration may authorize the use of tear gas and efforts must also be made to extract individuals in distress. These new statutory requirements do not apply within state and local detention and correction facilities. 

These new prohibitions on deployment of kinetic energy projectiles and chemical agents are unambiguous and confirm the legislature’s intent to expand the limitations on practical options available to law enforcement officers who are tasked with upholding the law of the land. While the attendees of many assemblies, protests, or demonstrations of recent years have engaged in theft and/or destruction of property, which may be considered to be objectively dangerous and unlawful, unless the situation presents a clear threat to life or serious bodily injury to any individual, officers will likely refrain from the use of the less lethal options previously available to them. While the “objectively reasonable” standard still applies to a majority of the mandatory provisions of the statute, it provides no such latitude regarding the mandate for officers to minimize possible incidental impacts on bystanders, medical personnel, journalists, or other unintended targets. This expectation will also likely result in increased hesitation in the deployment of kinetic energy projectiles or chemical agents in situations that do not pose a crystal-clear threat to life or serious bodily injury to any individual. This scenario also raises questions concerning how officers may be expected to enforce laws designed to protect the personal property of individuals being stolen or damaged during an unlawful protest, or how they may be able to ensure those unlawful protests are brought safely and effectively under control.