The Court of Appeal amends today its earlier opinion (published back in July) to make a couple of substantive changes. Those changes are interesting.
First, as to the sufficiency of the evidence, the Court of Appeal previously held that a jury could reasonably infer possession of the items in the backpack by the defendant, and today's amendment doesn't change that conclusion. I discussed that assessment when the original opinion came out, and today, the Court of Appeal adds a fair amount of additional analysis to its conclusion. I'm still not certain that Justice Humes gets it right, but nonetheless think that the amendments definitely add some force to his conclusion.
Second, as to the "burglary tools" part of the case, the Court of Appeal now reaches a different result than it did initially. And the next time someone tells you that the judiciary isn't allowed to rewrite a statute, tell them to read this opinion. Because that's exactly what the Court of Appeal does. (And it's not even shy about it.)
The statute requires actual possession to establish guilty, but that's because the Legislature -- and I'm convinced that Justice Humes is correct here -- accidentally left out the word "or" when it amended the statute. So the Court of Appeal rewrites the statute to insert the omitted word.
I generally think that's a permissible (and helpful) exercise of judicial review, and the right way to interpret statutes. I'm not a thousand percent certain that you can permissibly do that in the context of criminal statutes, since there's arguably a Due Process right to be notified of what you're allowed or not allowed to do under penalty of incarceration. If the statute says that I can't do X while Y, and I do X but not Y, I could see a legitimate complaint if they threw me in prison on the theory the statute should have said that you can't do X "or" Y. Since I didn't violate the statute as written, and hence the mistake was the Legislature's, not mine.
The defendant doesn't seem to make that argument; indeed, as far as I can tell, his lawyer didn't even file a brief on the issue at all. But I wonder if such an argument would (or should) be successful.
