Thursday, March 30, 2023

People v. Marquez (Cal. Ct. App. - March 30, 2023)

You have to be a true law geek to find this opinion interesting. Because it comes to a common sense conclusion that everyone in the universe would likely understand is a sensible an eminently just result.

Yet, doctrinally, I think it's probably wrong.

Let's first just set the stage, though. Generally, the prosecution has to prove the elements of an offense. So if, for example, a statute says that it's a crime to steal property "worth over $950," then the prosecution has to prove that fact. Ditto if a statute says that you can't molest someone who's "under 12 years of age" or to steal from a bank that's "insured by the FDIC." It doesn't matter that we all know that pretty much every bank is insured by the FDIC or that a particular child is super young; that state still has to introduce some sort of minimal evidence that establishes that these elements are met. That's unambiguously the law.

So say, to take another example, that a statute says that you get two years in prison if you commit arson of an "inhabited" dwelling. We'll all agree that the prosecution has to introduce evidence that the dwelling was indeed inhabited, right? That's similarly true, I think we'll agree, if the statute instead says that you get one year in prison if you burn an "uninhabited" structure, right?

The point is this: if there's a statute that says that you're guilty if you do X in settings involving Y and Z, the state's required to prove each of X, Y and Z. Regardless of whether these things are positive states of events (e.g., that a building was "inhabited") or negative (e.g., that a building was "uninhabited" or that a victim "was not yet twelve years of age").

In the actual case decided today, the relevant statute (Section 368(d) of the Penal Code) says that you get two, three or four years in prison if you're (a) "not a caretaker" of an elder or dependent adult, but (b) embezzle, steal or do other bad stuff to the property of an elder or dependent adult. In the present case, the prosecution established that Ms. Marquez stole around $100,000 from her 80-year old brother in law, who was living with her. But it never introduced any evidence at all about whether or not Ms. Marquez was her brother-in-law's caretaker. Remember: Ms. Marquez is only guilty under Section 368(d) -- the only statute under which she was charged -- if she was not his caretaker. Given this omission, was Ms. Marquez properly convicted of violating Section 368(d)? Did the evidence at trial establish the elements of the offense?

The Court of Appeal says: Yes.

Justice Moore holds that the part of the statute that says you have to "not" be a caretaker in order to be guilty is only a "charging" qualification that's only a hint to the prosecution as to which statute it might want to select in a given case.  I can't agree, and before today's opinion, I don't think I'd ever read any other case in which a substantive portion of a criminal statute was held be be essentially purely advisory and not an actual element. Section 368(d) couldn't be more straightforward: it says that "A person who is not a caretaker who violates any provision of law proscribing theft [etc.] . . . with respect to the property or personal identifying information of an elder or dependent adult" violates that section and can be punished accordingly. Those first seven words are as meaningful -- and equally as elements -- as any other seven words in the statute. If you're a caretaker, you're not guilty of violating Section 368(d).

Sure, you might be guilty of violating a different statute. Just like you might be guilty of violating a different statute (e.g., embezzlement) if you steal from a competent 40 year old rather than an 80-year old. But that doesn't mean you're guilty under Section 368(d). Similarly, here, if Ms. Marquez was in fact the caretaker for her 80-year old brother-in-law who lived with her -- and for all I know, she in fact might perhaps be -- then she's not guilty of the crime for which she was charged. The state has to prove that stuff, and it undeniably didn't do so here.

I'm sure that Justice Moore is right that the Legislature enacted Section 368 because it wanted to punish elder abuse crimes more severely. But that's not dispositive at all as to the meaning of Section 368(d), which applies only to noncaretakers. Similarly, I'm confident that the Legislature probably wanted to make it easier to convict caretakers who commit elder abuse more than noncaretakers, which is why it also enacted Section 368(e), which punishes caretakers who commit elder abuse. (Justice Moore says that "caretakers [] are subject to increased penalties under section 368(e)," but as far as I can tell, that's not actually true, since the penalties for caretakers and noncaretakers are exactly the same in paragraphs (d) and (e); two, three or four years, with the exact same fines etc.)

But here's the rub: you're not guilty of violating Section 368(d) if you're a caretaker. Just like you're not guilty of violating Section 368(e) if you aren't a caretaker. Just like being a caretaker is an element of guilt under (e), so too is not being a caretaker an element of guilt under (e). Just like it's an element of a particular arson offense that a structure not be inhabited, even if there's a different statute that covers arson of structures that are inhabited. And just like it's an element of Section 368(d) that the theft be from an elder even though there are other statutes that cover thefts from non-elders.

It's not that I don't get the foundational common sense principles that underlie the position that the Court of Appeal takes here. Ms. Marquez is surely guilty of some offense, whether it's 368(d) or (e). If she's a caretaker, it's (e), and if she's not, it's (d). 

But that's not how our system works. You actually gotta be charged with the offense for which you're guilty, and if you're charged with an offense and the state doesn't prove the elements of that offense, we gotta find you not guilty. Even if you totally robbed that bank and we're darn well certain that it's FDIC insured. If the state didn't put on evidence of that insurance, end of story: not guilty.

One I started thinking more deeply about this case, I thought there might perhaps be a way out. Maybe we should invent a doctrine that's somewhat similar to the various doctrines involving lesser included offenses. If, say, a person is charged with X, but there's a bigger crime (Y) of which the facts show that she's guilty, and if X is necessarily a lesser included offense of Y, then maybe should be able to uphold a conviction on X given the proof of Y. Sorta the same way that the Court of Appeal sometimes vacates convictions on greater offenses but reduces the crime (or allows retrial on remand) for a lesser included offense.

You see the analogy, right? Here, Ms. Marquez would be guilty of the "greater" crime (Section 368(e)) if she were in fact her brother-in-law's caretaker, so maybe we're okay with her being convicted of the "lesser" crime?

That's definitely not the way the Court of Appeal goes, though. Moreover, the present case involves at least a couple of complexities in that regard. First, the "greater" crime, as far as I can tell, actually is not in fact "greater". The punishment is instead actually the same. Second, the "lesser" offense here has a slightly higher mens rea, since Section 368(d) (unlike (e)) requires that the defendant know or should know that the victim is an elder or dependent adult, whereas (e) imposes strict liability on that element. Now, the greater mens rea might still constitute a "lesser" offense, since if you have the higher mens rea you necessarily also violate the strict liability offense that requires no such showing. It just gets a tiny bit messy.

Or maybe the Court of Appeal could say something instead that's entirely unique to the particular statute at issue here. Since, as I've said, Sections 368(d) and (e) appear to me, anyway, to impose the exact same punishment on caretakers and noncaretakers, perhaps we could create a rule that just says that in such settings, it's not a fatal variance from the charging document to charge (d) even if the facts might otherwise suggest (e). Particularly since the only difference is a lower mens rea, which the jury necessarily found when it decided to convict.

Or maybe we just bite the bullet and say that the prosecution screwed up and omitted an element and leave it at that. It happens sometimes. We're okay with that. Maybe ditto here.

Otherwise, it seems to me we're in a world of hurt trying to figure out what elements of a statute are "really" elements as opposed to merely "directory" and the like. Imagine you're in a state, for example, where Section 15 says that you get three years in prison if you burn a house "owned by another person" and Section 22 says that you get two years if you burn a house "owned by the defendant himself." Let's say I burn a house and am charged under Section 22 and the prosecution never proves it's mine. Am I still guilty? What if the house is not, in fact, mine? Still guilty there too? Does the answer change if I make Section 15 the "lesser" offense; e.g., if burning your own house gets you two years in prison but burning other people's houses only gets you one? (Maybe the Legislature was super concerned about insurance fraud.) Figuring out stuff like that seems a nightmare.

The fact that a statute imposes a "negative" condition on liability -- e.g., "not inhabited" or "not a caretaker" -- doesn't seem relevant. It's still an element. Or at least always seems to have been until today.