The demurrer that could let Rebecca Hamline off the hook

DEMURRER

            Defendant REBECCA HAMLINE hereby demurs pursuant to California Penal Code section 1004(5) to the Complaint on file herein on each of the following grounds separately:

1.      The 9^th Count is barred because it incorrectly states the crime as a Felony, when by operation of law, is in fact a Misdemeanor.

2.      The 10th Count is barred because it incorrectly states the crime as a Felony, when by operation of law, is in fact a Misdemeanor.

3.      The 11th Count is barred because it incorrectly states the crime as a Felony, when by operation of law, is in fact a Misdemeanor.

4.      The 31st Count is barred because it incorrectly states the crime as a Felony, when by operation of law, is in fact a Misdemeanor.

5.      The two Special Allegations attached to Count 31 pursuant to California Penal Code 12022.1 are barred because those special allegations only apply to felonies and not Misdemeanors.

WHEREFORE, Defendant, REBECCA HAMLINE prays:

1.      That this demurrer to the 9^th Count be sustained without leave to amend and that the 9^th Count be dismissed from the Information in its entirety as to this demurring Defendant.

2.      That this demurrer to the 10th Count be sustained without leave to amend and that the 10th Count be dismissed from the Information in its entirety as to this demurring Defendant.

3.      That this demurrer to the 11th Count be sustained without leave to amend and that the 11th Count be dismissed from the Information in its entirety as to this demurring Defendant.

4.      That this demurrer to the 31st Count be sustained without leave to amend and that the 31st Count be dismissed from the Information in its entirety as to this demurring Defendant.

5.      That this Demurrer to the two Special Allegations pursuant to 12022.1 be sustained because those special allegations only apply to felonies and not misdemeanors.

6.       For such other and further relief as the Court may deem just and proper.

MEMORANDUM OF POINTS AND AUTHORITIES

1.      INTRODUCTION

The tortured pleading path of this case continues unabated. On or about Sep. 21, 2015, the Defendant waived her right to a preliminary hearing in this matter. On Monday, October 5, 2015, the Defendant was arraigned on an Information[1] filed by the People, and signed by the District Attorney. The Information contained numerous counts of a violation California Penal Code § 476a(a), or in simple terms a Non-Sufficient Fund check charge. This time the pleading had some level of specificity as to these counts by including the amounts of these checks. Defendant Hamline was charged with this offense in Counts 9,10,11 and 31. The respective check amounts were as follows: $55.77, $539.95, $672.33, $300.00. All of these amounts are under $950. These counts are charged as separate individual felonies. They were also charged as felonies in the complaint. Since the passage of Proposition 47, almost a year ago, unless a jurisdictional amount of $950.00 is met, then the charges are misdemeanors and not felonies. It appears that the people are engaging in a certain pleading practice that instead of combining all of the bad checks (which see, there is case law that requires them to do that, which might have made it a single felony) instead are trying to throw as many charges at the Defendant as possible, even though they are not charged properly as felonies. Since Prelim was waived, and they are not allowed to change the charges or file anything different than what was in the complaint, this defect in this pleading appears to be fatal, and thus this Demurrer should be sustained without leave to amend and those charges should be dismissed. Note, Counsel for Defendant Hamline located four of these charges against her. A quick perusal of the Co-Defendant reveals an astonishing 19 of these charges lodged against him which do not meet the felonious amount of $950.

2.      THE LANGUAGE OF 476a OF THE PENAL CODE IS CLEAR THAT THIS CASE IS IMPROVIDENTLY CHARGED.

The way California Penal Code 476a is almost exclusively charged and prosecuted is all of the checks are combined, and if they meet a threshold amount, to wit $950 then it can be a felony. They did not do that in this case. Instead they tried to charge separately to stack charges on the Defendant, and thereby increase her punishment. This practice must be rejected. In its pertinent part, this section states as follows:

“(b) However, if the total amount of all checks, drafts, or orders

that the defendant is charged with and convicted of making, drawing,

or uttering does not exceed nine hundred fifty dollars ($950), the

offense is punishable only by imprisonment in the county jail for not

more than one year,…”

In each of the 4 separately charged counts, the check in question totals less than $950. This has been the law of the State of California for quite some time. For example, in In Re Watkins (1966) 4 Cal.2d 866, the very case headnote states as follows, “Where defendant without sufficient funds issued two checks, each for less than $50, but totaling $58.91, he was improperly convicted of two felonies and properly convicted of one felony under former Pen C § 476a, providing for imprisonment in the county jail for not more than one year or in state prison for not more than 14 years, unless the total of checks issued without sufficient funds was less than $50, for which imprisonment was not more than one year in the county jail.”

The Supreme Court also dealt with this issue in what is really the seminal case on this issue the same year as the Watkins decision where a prosecutor was also trying to separately charge multiple check charge felonies. In Re Dick (1966) 64 Cal.2d 272, clearly disagreed with the multiple charging theory. The opinion’s overview stated as follows: “The State had improperly grouped petitioner's consecutive checks until the aggregate of the face amounts exceeded the statutory amount of $ 50, then commenced a new series that it treated in an identical manner, so petitioner was improperly convicted of seven felonies.” The Dick opinion lays out that the people’s charging regimen in the case at bar is unlawful.

It is also worth noting that the $950 threshold does not apply to a person who has 3 prior convictions for this offense, pursuant to section (b) of 476a of the Penal Code. Such an allegation must be plead and proved in the relevant charging document. This Defendant does not have such a record, thus the $950 limit is applicable in terms of the charging. [See generally People v. Pettit (1964) 230 Cal.App.2d 397].

Lastly it is important to note that the Federal Courts in ruling on Habeas Corpus Petitions have interpreted the law the same way. In other words an amalgamation of bad checks totaling the jurisdictional amount of a felony can be charged, but in this case, the People are trying it the other way, which is plainly illegal, and that is separate charges that are all listed as felonies. Nettles v. Newland (2004) 2004 U.S. App. LEXIS 14869; 105 Fed. Appx. 144. That opinion stated as follows: “First, § 476a contemplates that the amount of the bad checks will be aggregated to determine whether the defendant committed a felony or a misdemeanor. See Cal. Pen. Code § 476a(b). Second, case law has recognized that alleging the issuance of all checks in a single count to obtain "a single conviction and punishment" is "the correct procedure." People v. Kennedy, 210 Cal. App. 2d 599, 26 Cal. Rptr. 696, 698 (Ct. App. 1962), disapproved on other grounds, In re Dick, 64 Cal. 2d 272, 411 P.2d 561, 564, 49 Cal. Rptr. 673 (Cal. 1966); see also 18A Cal. Jur. 3d Criminal Law: Crimes Against Property § 366 (2003) ("Where several checks are involved, the proper procedure is for the prosecution to allege the issuance of all the checks in a single count rather than to allege the issuance of each check in a separate count.").” Nettles @ 146.

The people made their bed. They must now sleep in it. In this case, listing 4 separate checks, none of which meet the $950 threshold makes the crime charged a Misdemeanor instead of a Felony as to this Defendant. The case law bears that out.

3.      PENAL CODE SECTION 1009 WILL PREVENT THE PEOPLE FROM AMENDING THIS FATALLY DEFECTIVE INFORMATION BECAUSE NO PRELIMINARY EXAMINATION WAS EVER HELD.

It is a well-established axiom that after a complaint is filed, and a preliminary examination is held on such complaint, that the People can charge whatever they feel was proved or established by the evidence in the preliminary examination.

It is also true that California Penal Code §1009 prevents said amendments if NO preliminary examination was held. That is the litigation posture that we now have. The relevant portion of that code section states as follows:

“…An indictment or accusation cannot be amended so as to change the offense charged, nor an information so as to charge an offense not shown by the evidence taken at the preliminary examination…”

A good discussion of this issue is contained in People v. Peyton (2009) 176 Cal.App.4^th 642, where after a preliminary examination was waived, an Information that was the mirror image of the complaint was filed. That is what is allowed. That is what was done in this case.[2] Now it is being brought to light that the charges in the original amended complaint were not legally valid, and thus this demurrer must be sustained without leave to amend. The Peyton Court provides guidance to this Court in rendering its decision on this important issue, “…when no preliminary hearing is held, the defendant may not be charged with additional crimes not charged in the pleading to which he waived his right to a preliminary hearing. Allowing such an amendment violates section 1009, even if the amendment did not prejudice the defendant or the defendant had notice of the facts underlying the new charges [Emphasis Added]…” Peyton @ 654.

Peyton relied upon another case called People v. Winters (1990) 221 Cal.App.3d 997. Winters involved adding an additional charge after a prelim was also waived, but contained a good discussion of how and when it is appropriate to amend an Information where a Prelim is waived. Winters did acknowledge that some simple scribner’s errors could allow for an amendment. That is not the case at bar. Rather the information reveals a depth of fundamental misunderstanding of how Penal Code §476a charging is supposed to happen. Said misapplication of the law should not serve as a reward for the people to finally get their charging right in a particular case.

4.      PROP 47 DID INCREASE THE JURISDICTIONAL AMOUNT, BUT IT HAS A PROSPECTIVE APPLICATION TO ALL CASES WHERE NO FINAL JUDGMENT HAS OCCURRED.

Lastly and shortly, it is worth noting that the old Jurisdictional amount in these NSF check cases used to be $450 (as can be seen from some of the older authorities in the 1960s it was actually $50), however Prop 47 raised the limit from $450 to $950.

This issue has been dealt head on by the Court in People v. Estrada (1965) 63 Cal.2d 740. In Estrada, our Supreme Court stated: "When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply." (Estrada, supra, 63 Cal.2d at p. 745.)

This includes "acts committed before its passage provided the judgment convicting the defendant of the act is not final." Accordingly, a statute lessening punishment is presumed to apply to all cases not yet reduced to final judgment on the statute's effective date, unless there is a "saving clause" providing for prospective application.

In this case, although the checks in question in the relevant counts were written before Prop 47 was passed, but they have not been reduced to final Judgment thus the law in place after Prop 47 was passed controls.

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[1]In order to avoid spending a lengthy period of time reviewing what is a very complex Information, Counsel stated on the record that their NG pleas were subject to the right to Demur at a later point. Court and Counsel accepted that stipulation.

[2]The sole exception in this case is that pursuant to the stipulation of the waiving of the preliminary examination, the People were allowed to add charges contained formerly in the complaint CR1503355B. They did that, but those charges are not relevant to the discussion contained herein.