RESPONSE TO MARCH 6, 2014 Press Release From The Body Freedom Coalition
It has come to my attention that some of the remaining plaintiffs in the Hightower v. City of San Francisco case have issued a press release today declaring they have secured new counsel after a purported “falling out” with me and my office.
The real reasons behind my withdrawal from the case are a matter of public record and set forth in my Affidavit to the Motion to Withdraw, which was granted by Judge Chen many months ago. The motion speaks for itself and I will make no further comment on the matter. As with all former clients, I wish them well in all of their endeavors.
In a long awaited decision Monday in Doe v. Harris, the California Supreme Court determined that under California law, “the general rule in California is that a plea agreement is ‘deemed to incorporate and contemplate not only the existing law but the reserve power of the state to amend the law or enact additional laws for the public good and in pursuance of public policy. . . .’ (Gipson 117 Cal.App.4th at p. 1070.) ”
Thus, according to the Doe Court “It follows, also as a general rule, that requiring the parties’ compliance with changes in the law made retroactive to them does not violate the terms of the plea agreement, nor does the failure of a plea agreement to reference the possibility the law might change translate into an implied promise the defendant will be unaffected by a change in the statutory consequences attending his or her conviction. To that extent, then, the terms of the plea agreement can be affected by changes in the law. ” (Emphasis added).
The 6-1 decision, which answers a question certified by the Ninth Circuit, resolves whether a change to existing law (specifically, the passage of “Megan’s Law”) which occurred post-plea can be applied to a defendant who pled guilty under the then-current version of P.C. 290 (California’s sex offender registration statute).
While a bad ruling from the criminal defense perspective, it’s notable that the California Supreme Court’s interpretations of law on certified questions have been proven wrong by higher courts before–most recently in Hollingsworth v. Perry, the Proposition 8 case, where the U.S. Supreme Court ultimately found that for federal purposes the initiative proponents could not defend the measure when the state refused to do so, contrary to what the California Supreme Court determined in a certified question ruling requested by the Ninth Circuit.
Earlier today the California Supreme Court issued a Notice of Forthcoming Filing that it will render its decision in Doe v. Harris as well as an automatic death penalty appeal (in People v. Nunez/Satele). The Doe ruling is expected to answer a question certified to the Supremes by the Ninth Circuit–namely, whether “Under California law of contract interpretation as applicable to the interpretation of plea agreements, does the law in effect at the time of a plea agreement bind the parties or can the terms of a plea agreement be affected by changes in the law?”
In English, the question is whether defendants who pled guilty to offenses which were not registrable sex offenses pursuant to P.C. 290 at the time of their plea can revisit their plea agreements (or have their requirement to register vacated) based on post-plea changes to state and federal law which dramatically expend the scope of offenses which require lifetime registration.
The opinion should be available at 10 a.m. Monday via the Court’s Web site.
Well, this made my day :) Just learned that the Petition for a Writ of Cert which I filed in Kyle Ray DeCoteau v. United States (Case No. 12-01285) will be considered by the U.S. Supreme Court at its May 23, 2013 conference. It’s my first request for U.S. Supreme Court review and involves some interesting issues regarding the appropriateness (or as we believe, the lack thereof) of a District Court judge denying a certificate of appealability in a post-trial review motion when one of the grounds of ineffective assistance has to do with the trial counsel’s failure to object to the District Court Judge’s alleged misconduct.
While it’s nice the United States waived their right to respond, my client and I have no illusions about the odds against the High Court deciding to take the case. Still, I’m honored and proud it’s gotten this far.
Great piece from my friend Michael Petrelis’s blog about confirmation of previously-denied links between an officer of the San Francisco Police Department and the Merchants of Upper Market Castro (MUMC). For those not in the loop, the MUMC has been controversial of late due to its backing of the Ordinance (sponsored by Supervisor Weiner) to ban public nudity in San Francisco as well as its long oppositon to flying the Transgender Pride flag at Harvey Milk Plaza. Given the veracity (or lack thereof) of SFPD officers is likely to be an issue in ongoing proceedings in Hightower v. City and County of San Francisco, the blog is worth a read.