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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT

THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. FRANK QUINONES, Defendant and Appellant.

) ) 2d Crim. B231775 ) ) (Sup.Ct.No. ) ) BA374938) ) ) ) )

APPEAL FROM THE JUDGMENT OF THE SUPERIOR COURT OF LOS ANGELES COUNTY THE HONORABLE GAIL R. FEUER, JUDGE

APPELLANT’S OPENING BRIEF

D. INDER COMAR (SBN 243732) COMAR LAW 901 Mission Street, Suite 105 San Francisco, CA 94103 (415) 640-5856 Court Appointed Attorney for Appellant FRANK QUINONES

TABLE OF CONTENTS

STATEMENT OF APPEALABILITY .........................................................1 STATEMENT OF THE CASE .....................................................................1 STATEMENT OF FACTS............................................................................4 ARGUMENT ................................................................................................8 I. APPELLANT’S CONVICTION MUST BE REVERSED BECAUSE SECTION 12020 IS OVERBROAD AND CRIMINALIZES CONDUCT PROTECTED BY THE SECOND AMENDMENT TO THE UNITED STATES CONSTITUTION. .....................................................................8 A. The Right To Keep And Bear Arms Applies To The States. ..........8 B. Our Supreme Court Has Recognized The Overbreadth Of Section 12020....................................................................................................10 C. Section 12020 Is Facially Overbroad Under Heller and McDonald. .........................................................................11 II. APPELLANT’S CONVICTION MUST BE REVERSED BECAUSE SECTION 12020 IS VAGUE AND PROVIDES INSUFFICIENT NOTICE UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION. ...................................................15 A. The Due Process Clause Of The Fourteenth Amendment Requires Fair Notice Of Criminal Law. ..............................................................15 B. Our Supreme Court Has Never Addressed The Vague Language Of Section 12020(a)(4) and Section 12020(c)(24). .............................16 III. THE TRIAL COURT’S REFUSAL TO GIVE APPELLANT ONEFOR-ONE PRE-SENTENCE CREDIT VIOLATED EQUAL PROTECTION OF THE LAW UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND THE CALIFORNIA CONSTITUTION. .................................................22 CONCLUSION ...........................................................................................27

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TABLE OF AUTHORITIES Cases District of Columbia v. Heller (2008) 554 U.S. 570 ...............................9, 12 Grayned v. City of Rockford (1972) 408 U.S. 104 ......................................12 Houston v. Hill (1987) 482 U.S. 451...........................................................12 In re Marquez (2003) 30 Cal.4th 14............................................................25 Kolender v. Lawson (1983) 461 U.S. 352 .............................................15, 16 Lanzetta v. New Jersey (1939) 306 U.S. 451 ..............................................15 McDonald v. City of Chicago (2010) No. 08-1521, 561 U.S. __ , 130 S.Ct. 3020...................................9, 10 McFarland v. American Sugar Co. (1916) 241 U.S. 79 .............................19 Papachristou v. City of Jacksonville (1972) 405 U.S. 156 .........................16 People v. Bravo (1990) 219 Cal.App.3d 729 ..............................................26 People v. Clavel (2002) 103 Cal.App.4th 516 ........................................2, 22 People v. Duran (1998) 67 Cal.App.4th 267 ..............................................26 People v. Fares (1993) 16 Cal.App.4th 954............................................2, 22 People v. Munoz (1961) 9 NY 2d 51.....................................................18, 19 People v. Rubalcava (2000) 23 Cal.4th 322.........................................passim People v. Sage (1980) 26 Cal.3d 498 ..............................................23, 24, 25 Sheriff v. Burdg (2002) 118 Nev. 853, 59 P. 3d 484 ...................................18 State v. Delgado (1984) 298 Or. 395, 692 P.2d 610 ..................................13 Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc. (1982) 455 U.S. 489 ..........................................................................16

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United States Constitutional Provisions U.S. Const. amend. II. .............................................................................8, 12 U.S. Const. amend. XIV, § 1.................................................................15, 22

California Constitutional Provisions Calif. Const. art. I, § 7 .................................................................................22

California Statutes Penal Code § 1192.7....................................................................................25 Penal Code § 12020, subd. (a)(4) .........................................................passim Penal Code § 12020, subd. (c)(24) .......................................................passim Penal Code § 1237.........................................................................................1 Penal Code § 2933.................................................................................22, 24 Penal Code § 2933, subd. (a).......................................................................23 Penal Code § 2933, subd. (e)(1) ..................................................................23 Penal Code § 2933, subd. (e)(3) ............................................................23, 25 Penal Code § 422...........................................................................................1 Penal Code § 667.5, subd. (b) ...................................................................1, 2

Other Authorities CALCRIM No. 2501 (Carrying Concealed Explosive or Dirk or Dagger) 13

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT

THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. FRANK QUINONES, Defendant and Appellant.

) ) 2d Crim. B231775 ) ) (Sup.Ct.No. ) ) BA374938) ) ) ) )

APPELLANT’S OPENING BRIEF STATEMENT OF APPEALABILITY This appeal is from a final judgment of conviction after jury trial, and is authorized by Penal Code § 1237. STATEMENT OF THE CASE An Information charged appellant in count 1 with carrying a dirk and dagger (Penal Code § 12020, subdivision (a)(4)) (hereinafter “Penal Code § 12020(a)(4)”) and in count 2 with the crime of criminal threats (Penal Code § 422). The Information also alleged a prior conviction within the meaning of Penal Code section 667.5 subdivision (b).1 (CT 5153.)2

1 2

All further statutory references are to the Penal Code. “CT” and “RT” refer respectively to the Clerk’s and Reporter’s
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Upon jury trial, appellant was convicted of counts 1 and 2. (CT 93-98.) The court, after waiver of a jury trial and admission by

appellant, found the prior conviction allegation to be true. (CT 99.) At probation and sentencing proceedings conducted on March 15, 2011, the court sentenced appellant to three years, eight months imprisonment, consisting of one-third the mid-term of 24 months on count 1, the mid term of 2 years on count 2, and one year for the section 667.5 subdivision (b) enhancement. (CT 106-107, 109-110.) Appellant was

awarded 315 days credit for presentence custody. (CT 107, 110.) On March 18, 2011, appellant filed a Notice of Appeal. (CT 111.) On July 15, 2011, appellant sent a letter and filed a motion in the Superior Court requesting that the Superior Court correct his pre-sentence custody credits in conformity with People v. Fares (1993) 16 Cal.App.4th 954 and People v. Clavel (2002) 103 Cal.App.4th 516. (See Mn. to Aug. (filed Aug. 25, 2011), Decl. of D. Inder Comar, Ex. A at p. 1-6.) This motion was denied on July 29, 2011. (Id. at p. 7-8.) On August 12, 2011, appellant submitted a Rule 8.340(b) letter requesting augmentation of the record with regard to missing jury notes. (Sept. 9, 2011 CT 7-9.) On August 25, 2011, appellant filed a motion to augment the record. (See Mn. To Aug. (filed Aug. 25, 2011).) Transcripts of proceedings conducted in this case.
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This motion was granted on August 30, 2011. The missing jury notes were augmented into the record on September 9, 2011. (Sept. 9, 2011 CT 1-6.)

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STATEMENT OF FACTS Prosecution Case At around 1:30 in the morning on August 17, 2010, Olivia Navarro heard her dogs barking while she went to the kitchen to get a glass of water. (RT 16.) She removed the curtain in front of the kitchen window and saw the face of appellant. (RT 16.) Appellant appeared to be standing on the trash bins belonging to the Navarros. (RT 37-38.) Appellant told Olivia Navarro that he was being followed, that someone was after him and that he was afraid for his life. (RT 24, 64.) Olivia Navarro had an

approximately 10 minute conversation with appellant. She told him that her husband and son would be coming home and that he had to leave. (RT 21.) Olivia Navarro’s daughter Maria (“daughter Maria”), who was sleeping on the living room couch, was woken up by her mother speaking to the appellant as well as from the barking of the dogs. (RT 3536.) Her other daughter, Belen (“daughter Belen”), was also woken up. (RT 75.) Daughter Maria joined her mother in the kitchen and told the appellant that he needed to leave. (RT 63.) Appellant and daughter Maria began arguing. (RT 22.) Appellant then moved to the front of the

Navarros’ home by jumping over some trash cans and a fence. (RT 22, 43.) Olivia Navarro then saw appellant walk across the street to a
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neighbor’s house. (RT 22.) Daughter Maria opened the door in the living room/dining room to get a better look at what appellant was doing. (RT 43.) She left the metal security door in place. (RT 45.) Daughter Maria saw appellant walk in front of the neighbor’s house and knock on the neighbor’s window and security door. (RT 45.) Olivia Navarro’s two daughters began yelling at appellant, telling him not to go to the neighbor’s house. (RT 22, 46, 80.) Daughter Maria yelled that appellant needed to leave and that she was going to call the police. (RT 27.) Daughter Belen yelled that there were little children at that neighbor’s house and that she was going to call the police. (RT 80.) Both daughters were behind the security door. (RT 81.) Appellant was in front of the neighbor’s house for a couple of minutes. (RT 46.) Daughter Maria called the police at this point. (RT 51.) Appellant walked back across the street to the sidewalk in front of the Navarros’ home and being yelling at the Navarros, cursing and threatening them. (RT 47.) Appellant yelled, “Fuck you. You don’t know me. I’m going to come back and I’m going to get you.” (RT 48.) He called the daughters bitches and said he was going to kill them. (RT 82.) Appellant begin motioning to his groin area; daughter Maria believed that he was masturbating. (RT 50.) Daughters Maria and Belen were scared. (RT 50, 84.) While appellant was apparently masturbating, daughter Maria called
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the police a second time. (RT 51.) Appellant walked away from the house at that point. (RT 52.) The police arrived in the neighborhood and found appellant. (RT 122.) They questioned appellant, patted him down and released him. (RT 55, 122.) The police did not recover any weapons, only appellant’s I.D. (RT 122.) The police decided to let him go. (RT 122.) The police arrived at the Navarros’ house 10 to 15 minutes after daughter Maria’s second phone call. (RT 54.) By then, daughter Belen had placed a third phone call to the police. (RT 54.) Daughter Maria was upset that the police had released appellant. (RT 55, 124.) The police took a statement from daughter Belen and headed back to the station. (RT 125-126.) Back at the station, the officers who had met with the Navarrros received a burglary call at 2:38 a.m. that matched appellant’s address. (RT 127.) The officers went to appellant’s address and saw that he was detained by other officers. (RT 127-128.) The officers patted down appellant at the corner of Lowell and Shelley Streets. (RT 128.) They recovered three knives. (RT 129.) The first knife contained a push-button that released a razor blade as well as a pull-out blade on the other end. (RT 130.) The second knife was a folding knife. (RT 131.) The third knife was a very large steak knife with a serrated blade. (RT 131.) The officers
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recovered this third knife from appellant’s back. The knife was lodged half way up appellant’s back and half way down the crack in his posterior, with the blade pointing up and the handle pointing down. (RT 131, 312.) The blade was approximately 7 inches. (RT 131.) Later that morning, daughters Maria and Belen identified appellant. (RT 58-59, 78-79.)

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ARGUMENT I. APPELLANT’S CONVICTION MUST BE REVERSED BECAUSE SECTION 12020 IS OVERBROAD AND CRIMINALIZES CONDUCT PROTECTED BY THE SECOND AMENDMENT TO THE UNITED STATES CONSTITUTION. Eleven years ago, our Supreme Court acknowledged that section 12020 was overbroad as a matter of common sense, but could find no infringed constitutional right. (People v. Rubalcava (2000) 23 Cal.4th 322, 333). Subsequent United States Supreme Court decisions have

affirmed an individual’s right to “keep and bear arms” under the Second Amendment. (U.S. Const. amend. II.) The broad sweep of section

12020(a)(4) (and its companion section 12020 subdivision (c)(24) (hereinafter “Section 12020(c)(24)”)) violates the federal Constitution by criminalizing otherwise fundamental freedoms in an overbroad manner. Accordingly, appellant’s conviction under section 12020(a)(4) must be reversed. A. The Right To Keep And Bear Arms Applies To The States.

In District of Columbia v. Heller, the United States Supreme Court affirmed that the Second Amendment to the United States Constitution, which protects the right to “keep and bear arms,” is a “right”

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that is “exercised individually and belongs to all Americans.” (District of Columbia v. Heller (2008) 554 U.S. 570, 581.) Specifically, the United States Supreme Court held that “arms” were “weapons of offence, or armour of defence,” and “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” (Id.) This definition includes “weapons that were not specifically designed for military use and were not employed in a military capacity,” even those instruments “that were not in existence at the time of the founding.” (Id. at p. 581-82.) The Supreme Court interpreted “keep arms” to mean a “common way of referring to possessing arms” and “bear arms” to “refer to the carrying of weapons outside of an organized militia.” (Id. at p. 583-84.) In sum, the Second Amendment guarantees the “individual right to possess and carry weapons in case of confrontation.” (Id. at p. 592.) In McDonald v. City of Chicago (2010) No. 08-1521, 561 U.S. __ , 130 S.Ct. 3020, the United States Supreme Court held that the rights protected by the Second Amendment are “fully applicable to the States.” (Id. at 3026 (slip op. at 1-2).) In McDonald, the city of Chicago effectively banned private handgun possession by almost all citizens who resided in the city. (Id.) The United States Supreme Court struck down the ban. “Self-defense is a basic right, recognized by many legal systems from
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ancient times to the present day, and in Heller, we held that individual selfdefense is ‘the central component’ of the Second Amendment right.” (Id. at 3036 (slip op., at 19).) The Supreme Court held that the “Framers and the ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.” (Id. at 3042 (slip op., at 31).) The right of the Second

Amendment is a guarantee that is “fully binding on the States and thus limits (but by no means eliminates) their ability to devise solutions to social problems that suit local needs and values.” (Id. at 3046 (slip op., at 38) (emphasis in original).) B. Our Supreme Court Has Recognized The Overbreadth Of Section 12020.

Section 12020(a)(4) criminalizes the possession of a concealed “dirk or dagger.” “Dirk and dagger” is further defined as a “knife or other instrument with or without a handguard that is capable of ready use as a stabbing weapon that may inflict great bodily injury or death. A nonlocking folding knife, a folding knife that is not prohibited by Section 653k, or a pocketknife is capable of ready use as a stabbing weapon that may inflict great bodily injury or death only if the blade of the knife is exposed and locked into position.” (Section 12020(c)(24).) In People v. Rubalcava, our Supreme Court held that section

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12020(a)(4) “focuses on the characteristics of the concealed instrument without explicitly or implicitly referring to the possessor’s ‘intent to do a further act or achieve a future consequence.’” (Rubalcava, supra, 23 Cal. 4th at p. 328.) Accordingly, intended use of a concealed dirk or dagger was “not an element of the crime.” (Id.) Our Supreme Court admitted that sections 12020(a)(4) and 12020(c)(24) thus “may criminalize seemingly innocent conduct” and “may invite arbitrary and discriminatory enforcement . . . due to the wide range of otherwise innocent conduct it proscribes.” (Id. at p. 333.) Our Supreme Court cited language from the Legislature that acknowledged and recognized that the “new definition may criminalize the ‘innocent’ carrying of legal instruments such as steak knives, scissors and metal knitting needles, but concluded ‘there is no need to carry such items concealed in public.’” (Id. at p. 330.) Our Supreme Court concluded that while “section 12020 may seem overbroad as a matter of common sense, we will not find it unconstitutionally overbroad without some concrete impairment of constitutionally protected conduct.” (Id. at p. 333 (emphasis in original).) C. Section 12020 Is Facially Overbroad Under Heller and McDonald.

A law is overbroad if “in its reach it prohibits constitutionally

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protected conduct.” (Grayned v. City of Rockford (1972) 408 U.S. 104, 114.) “Criminal statutes must be scrutinized with particular care; those that make unlawful a substantial amount of constitutionally protected conduct may be held facially invalid even if they also have legitimate application.” (Houston v. Hill (1987) 482 U.S. 451, 458-59 (internal citations committed).) The United States Constitution protects the right to keep and bear arms. (U.S. Const. amend. II.) In this case, the crucial question is whether section 12020 “sweeps within its prohibitions what may not be punished under the [Second Amendment.]” (Grayned, supra, 408 U.S. at p. 115.) On its face, the answer is yes. By the admission of our own Supreme Court, section 12020 encompasses a substantial amount of innocent activity that is now firmly protected by the Second Amendment to the United States Constitution. First, there is no doubt that the United States Supreme Court’s recent decisions encompass knives, dirks and daggers as “arms” for purposes of the Second Amendment. (See Heller, supra, 554 U.S. at 581-82.) As a result, the carrying of a knife, dirk or dagger is a “bearing of arms,” and is behavior that is protected by the Second Amendment. Other courts have held the same. For example, the Oregon

Supreme Court held that knives were “arms” for purposes of its State
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Constitution, which guarantees the “right to bear arms for the defence [sic] of themselves, and the State.” (State v. Delgado (1984) 298 Or. 395, 397, 692 P.2d 610). In an analysis consistent with Heller and McDonald, the Oregon Supreme Court noted that settlers during the revolutionary era used “many of the same weapons for both personal and military defense,” and that “every colonist had a knife” during the American colonial era. (Id. at p. 399, 401.) Accordingly, a switchblade was an arm for purposes of Oregon’s State Constitution, and a statute prohibiting mere possession and mere carrying of a switchblade knife was unconstitutional. (Id. at p. 397.) Second, section 12020 criminalizes mere possession without need to show unlawful intent – only knowledge that the dirk or dagger is being carried and could be used as a weapon. (See CALCRIM No. 2501 (Carrying Concealed Explosive or Dirk or Dagger); CT 84 (listing jury instructions for Count 1).) Following the holdings of Heller and

McDonald, it is clear that the State of California lacks constitutional authority to enact such a broad criminalization of normally legitimate – and constitutionally protected – behavior. The facts of this case highlight the bizarre applications of section 12020. The record reflects that appellant was not carrying any weapons on him when he left the Navarros’ street to return to his residence – in fact, he was searched by a police officer en route and the officer came
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up empty-handed.

(RT 122.)

Only later, after appellant had himself

phoned in a burglary call, did the police recover any weapons and the kitchen knife at issue. (RT 127-131.) Having armed himself with a kitchen knife in response to a suspected burglar, appellant was then subsequently arrested and convicted for carrying it. This is the very type of behavior the Second Amendment is designed to protect. Based on the above, sections 12020(a)(4) and 12020(c)(24) must be struck down as unconstitutionally overbroad, and appellant’s conviction under section 12020 reversed.

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II. APPELLANT’S CONVICTION MUST BE REVERSED BECAUSE SECTION 12020 IS VAGUE AND PROVIDES INSUFFICIENT NOTICE UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION. The phrase “other instrument with or without a handguard that is capable of ready use as a stabbing weapon” as used to define “dirk or dagger” is unconstitutionally vague. (Section 12020(c)(24).) Accordingly, appellant’s conviction under section 12020 must be reversed on this basis. A. The Due Process Clause Of The Fourteenth Amendment Requires Fair Notice Of Criminal Law.

The void-for-vagueness doctrine requires that a “penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” (Kolender v. Lawson (1983) 461 U.S. 352, 357-58 (internal citations omitted).) If a statute does not do so, it violates the due process clause of the Fourteenth Amendment. (U.S. Const. amend. XIV, § 1; see also, e.g., Lanzetta v. New Jersey (1939) 306 U.S. 451, 458.) The more important aspect of the vagueness doctrine is not actual notice but the requirement “that a legislature establish minimal guidelines to govern law enforcement.” (Kolender, 461 U.S. at p. 358

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(internal citations omitted).) Without such guidelines, a law will fail “to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute” and will encourage “arbitrary and erratic arrests and convictions.” (Papachristou v. City of Jacksonville

(1972) 405 U.S. 156, 162 (internal citations omitted).) The United States Constitution tolerates vagueness in some instances more than others. The United States Supreme Court has

“expressed greater tolerance of enactments with civil rather than criminal penalties because the consequences of imprecision are qualitatively less severe.” (Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc. (1982) 455 U.S. 489, 498-99.) When a law “threatens to inhibit the

exercise of constitutionally protected rights . . . a more stringent vagueness test should apply.” (Id. at p. 499, noting as examples the rights to free speech and of association.) Because a criminal statute is at issue in this instance, and because rights guaranteed by the Second Amendment to the United States Constitution are implicated, this court has a heightened obligation to consider the vagueness issues addressed herein. B. Our Supreme Court Has Never Addressed The Vague Language Of Section 12020(a)(4) and Section 12020(c)(24).

In Rubalcava, our Supreme Court held that appellant’s challenge of the statute on vagueness grounds was meritless because the
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appellant “identifie[d] no vague terms in the statute that may be open to multiple interpretations. Instead, he claims the resulting criminalization of ‘otherwise wholly innocent conduct’ would make section 12020 unconstitutionally vague.” (emphasis in original).) Our Supreme Court declined to address the underlying basis for the criminalization of “otherwise wholly innocent conduct”: specifically, section 12020(c)(24)’s use of the phrase “other instrument with or without a handguard that is capable of ready use as a stabbing weapon” to define “dirk or dagger.” (Section 12020(c)(24) (“As used in this section, a “dirk” or “dagger” means a knife or other instrument with or without a handguard that is capable of ready use as a stabbing weapon that may inflict great bodily injury or death.”) (emphasis added).) The phrase “other instrument with or without a handguard that is capable of ready use as a stabbing weapon” is vague because it (1) fails to give a person of ordinary intelligence fair notice of what is forbidden by the statute; and (2) encourages arbitrary and erratic arrests and convictions. Indeed, our Supreme Court admitted that the language of the statute might criminalize the carrying of “steak knives, scissors and metal knitting needles.” (Id. at p. 330.) Two cases illustrate why the use of the phrase “other
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(Rubalcava, supra, 23 Cal. 4th at p. 332

instrument with or without a handguard that is capable of ready use as a stabbing weapon” in section 12020(c)(24) (and as used to define the scope of section 12020(a)(4)) is unconstitutionally vague. In Sheriff v. Burdg, the Nevada Supreme Court struck down a statute that criminalized the possession of a “majority of the ingredients required to manufacture or compound a controlled substance other than marijuana, unless [the person] is at a laboratory that is licensed to store such ingredients.” (Sheriff v. Burdg (2002) 118 Nev. 853, 854, 59 P. 3d 484.) The Nevada Supreme Court noted that the statute failed “to provide a person of ordinary intelligence with fair notice of what conduct is prohibited. In particular, it fails to list the items that might be described as ‘ingredients’ required to manufacture or compound a controlled substance.’” (Id. at p. 858.) The lack of an intent element and ambiguities regarding required elements “allow arbitrary and discriminatory enforcement,” and failed to provide law enforcement “with adequate guidance concerning the precise scope of activities it aspires to proscribe.” (Id. at p. 858-859.) Similarly, in People v. Munoz, New York’s highest court struck down a statute that made it unlawful for persons under twenty-one “to carry on his person or have in his possession, in any public place, street or park any knife or sharp pointed or edged instrument which may be used for cutting or puncturing.” (People v. Munoz (1961) 9 NY 2d 51, 54.) The
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Court of Appeals held that the language was “too vague and too general to indicate what persons are included or what acts are prohibited.” (Id. at p. 55-56.) “The first uncertainty . . . arises from not knowing what is covered by the description of prohibited instruments.” (Id. at p. 56.) Penknives, fountain pens, nails, knitting needles, safety razors, nail files and even toilet articles were all implicated by the general language of the statute. “The definition has no boundary excluding from the section’s coverage the most commonly used and innocently possessed devices of everyday life.” (Id. at p. 56-57.) The Court of Appeals considered whether the statute could be saved by imputing an “unlawful purpose” element, but found that it could not. “Even if the local law in suit had required the prosecution to show an intention to use the penknife for some unlawful purpose, there could have been no statutory presumption of evil intent from mere possession of the penknife in the public street. Legislative presumption, to be valid, must have enough basis in human experience so that the presumption has some fair relation to or natural connection with the fact on which the presumption rests.” (Id. at p. 59 (quoting McFarland v. American Sugar Co. (1916) 241 U.S. 79, 86 (Holmes, J.)).) Section 12020 is in the same class of vague statutes as the ones struck down by the highest courts in Nevada and New York. As with
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these other statutes, the public is not on notice as to what might qualify as an “other instrument with or without a handguard that is capable of ready use as a stabbing weapon.” In Rubalcava, our Supreme Court noted that an earlier, narrower definition of dirk and dagger had spawned inconsistencies amongst the Courts of Appeal. (Rubalcava, supra, 23 Cal. 4th at p. 329.) The Legislature subsequently broadened the definition from “primarily designed, constructed or altered to be a stabbing instrument” to the current “capable of ready use of as a stabbing weapon.” (Id. at p. 330.) By the plain words of the statute, there is no way to know in advance what items are now encompassed by the statute – be it an ice-pick, metal file, fountain pen, toilet article or knife. Indeed, the record in this case reflects that the prosecution only believed it could prosecute appellant for possession of the kitchen knife because it was larger than seven inches (RT B11-14). Yet in

Rubalcava, the knife was roughly “three inches long and a handle approximately three and one-eighth inches long.” (Rubalcava, supra, 23 Cal. 4th at p. 325.) Thus, even here, the prosecution appears not to have known what it could and could not charge under section 12020. It is this type of confusion that makes sections 12020(a)(4) and 12020(c)(24) unconstitutionally vague on lack of notice and arbitrary enforcement grounds. Accordingly, appellant’s conviction under section 12020(a)(4)
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must be reversed.

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III. THE TRIAL COURT’S REFUSAL TO GIVE APPELLANT ONE-FORONE PRE-SENTENCE CREDIT VIOLATED EQUAL PROTECTION OF THE LAW UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND THE CALIFORNIA CONSTITUTION. In this case, the trial court awarded 315 days of pre-sentence credits (CT 107, 110). The trial court declined to award appellant one-forone credits pursuant to section 2933. Instead, the trial court ruled that “because a 422 is a serious felony, under Penal Code Section 1192.7 [Mr. Quinones] would only get one-third credit. So he doesn’t get one for one.” (CT 1206.)3 The trial court’s refusal to give appellant one-for-one credit violates Equal Protection of the law under the Fourteenth Amendment to the United States Constitution and the California Constitution, and appellant is entitled under California law to one-for-one calculation of his credit. (U.S. Const. amend. XIV, § 1; Calif. Const. art. I, § 7.) This is because (1) the California Supreme Court has already held that distinctions
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Consistent with People v. Fares (1993) 16 Cal.App.4th 954 and People v. Clavel (2002) 103 Cal.App.4th 516, appellant sent a letter and filed a motion in the Superior Court requesting that the Superior Court correct his pre-sentence custody. (See Mn. to Aug. (filed Aug. 25, 2011), Decl. of D. Inder Comar, Ex. A at p. 1-6.) This motion was denied on July 29, 2011. (Id. at p. 7-8.) As a result, this issue is properly before the appellate court.
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between detainee/felons and felons in credit determinations violate Equal Protection; and (2) no prior strike conviction was pled and proven. First, the Legislature has declared its intent that persons be sentenced to the state prison “except for a reduction in the time served . . . pursuant to [Penal Code section 2933].” (Section 2933, subd. (a).) Section 2933 subdivision (e)(1) continues that a prisoner “shall have one day deducted from his or her period of confinement for every day he or she served in a county jail, city jail, industrial farm, or road camp from the date of arrest until state prison credits pursuant to this article.” (Section 2933, subd. (e)(1).) In other words, the default rule for all prisoners is to receive one-for-one credit for pre-sentence custody. Section 2933 declares that section 4019 applies – and thus one-third credit – if the prisoner “was committed for a serious felony, as defined in Section 1192.7”. (Section 2933, subd. (e)(3). However, in People v. Sage (1980) 26 Cal.3d 498, our Supreme Court rejected on Equal Protection grounds any distinction between detainee/felons and felons with regard to pre-sentence credits. A prior version of section 4019 subdivision (a)(1) (which made the statute applicable to prisoners “confined in or committed to a county jail . . . under a judgment of imprisonment”) had been interpreted to mean that only those prisoners who were sentenced in a

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misdemeanor proceeding, but not felons confined in jail awaiting trial, qualified to receive credit for pre-sentence jail time. (Id. at p. 504.) Thus, a defendant who made bail or was released on his own recognizance, and then “tried, convicted of a felony and sentenced to state prison [received] conduct credit against his own sentence.” (Id. at p. 507.) “Only the

presentence detainee eventually sentenced to prison, the ‘detainee/felon,’ does not receive conduct credit against his full sentence, because he is denied conduct credit for his presentence confinement.” (Id.) Our Supreme Court held that there was simply no “rational basis for, much less a compelling state interest in, denying presentence conduct credit to detainee/felons.” (Id. at p. 508.) Under the controlling law of Sage, giving only one-third credit to a detainee/felon violates Equal Protection of the law because there is no rational basis for giving felons one-for-one credit while giving detainee/felons only one-third credit. Under section 2933, felons whose current prison sentence is due to a conviction of a serious felony are eligible to earn day-for-day conduct credits while in prison. But

detainee/felons are excluded from earning day-for-day conduct credits and are limited to one-third conduct credits. As was found in Sage, “[i]t is the distinction between the detainee/felon and the felon who serves no presentence custody time that raises equal protection problems.” (Sage,
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supra, at p. 507.) And, as in Sage, there is no rational basis, much less a compelling state interest for denying conduct credits to detainee/felons equal to that allowed to felons. (Id. at p. 508.) Accordingly, denying Mr. Quinones one-for-one conduct credit violated Equal Protection of the law. Second, no prior strike conviction – the other felony exception to section 2933 – was pled and proven against Mr. Quinones. (Section 2933, subd. (e)(3).) The only prior conviction pled against Mr. Quinones was a charge under section 12020(a)(4), which is not a “serious felony” as defined by section 1192.7. (See Section 1192.7; CT 52.) Under the erroneous standard used by the court, appellant was given 315 days of pre-sentence credit: 211 actual days and 104 days of good time/work time, for a total of 315 days. The figure of 104 days was calculated by taking the number of actual days (211), dividing that number by 4, discarding the remainder, and multiplying that number by 2. (In re Marquez (2003) 30 Cal.4th 14, 26.) Under a standard consistent with Equal Protection, appellant is entitled to one-for-one conduct credit: 211 actual days and 211 days of good time/work time, for a total of 422 days. (Sage, supra, 26 Cal.3d at p.504.) The remedy is to modify the judgment to reflect 422 total days of presentence credit and direct the trial court to amend the abstract of
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judgment accordingly and forward a copy to the Department of Corrections. (See People v. Duran (1998) 67 Cal.App.4th 267, 270; People v. Bravo (1990) 219 Cal.App.3d 729, 735-36.)

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CONCLUSION For the reasons set forth in Argument I and II, the conviction in count 1 should be reversed and sections 12020(a)(4) and 12020(c)(24) struck down and the matter should be remanded for resentencing; for those set forth in Argument III, appellant’s conduct credits should be increased and the matter remanded for the trial court to order that an amended abstract of judgment be sent to CDCR. DATED: October __, 2011 Respectfully submitted, D. INDER COMAR

D. INDER COMAR Court Appointed Attorney for Appellant

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WORD COUNT CERTIFICATION People v. Frank Quinones I certify that this document was prepared on a computer using Microsoft Word, and that, according to that program, this document contains 4941 words.

______________________________________ D. INDER COMAR

PROOF OF SERVICE I am a citizen of the United States, over the age of 18 years, employed in the County of San Francisco, and not a party to the within action; my business address is 901 Mission Street, Suite 105, San Francisco, California 94103. On October ___, 2011, I served the within APPELLANT’S OPENING BRIEF in said action, by placing a true copy thereof enclosed in a sealed envelope, addressed as follows, and deposited the same in the United States Mail at San Francisco, California. Kamala Harris, Attorney General 300 South Spring Street Fifth Floor, North Tower Los Angeles, CA 90013 P.O. Box 944255 Sacramento, CA 94244-2550 The Clerk of the Court for delivery to The Honorable Gail Feuer, Judge Presiding 210 W. Temple Street, Dept. M-6 Los Angeles, CA 90012-3210 Frank Quinones / F-13049 California Rehabilitation Center P.O. Box 3535 Norco, CA 92860 Steve Cooley, District Attorney James Toro, Deputy District Attorney 18000 Criminal Courts Building 210 W. Temple St. Los Angeles, CA 90012 Ronald L. Brown, Public Defender Gia Bosley, Deputy Public Defender 19-513 Criminal Courts Building 210 West Temple Street Los Angeles, CA 90012 Los Angeles California Appellate Program Attn: Ronnie Duberstein 520 S Grand Ave, 4th Floor Los Angeles, CA 90071

I declare under penalty of perjury that the foregoing is true and correct. Executed on October __ , 2011 at San Francisco, California.

_____________________________ D. INDER COMAR