Mo Contraband Mo Problems? Pig in the pokey and your Daily Defense

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This week's pig  in pokey leads to a very law-nerdy blog post about the "any=many" rule that if your client has hella contraband he can only suffer one conviction, not hella convictions. (Unless, we're talkin bout sawed off shot gunz or destructive devices). Read more below (citations included).

Pig in the Pokey
Former CHIEF probation officer of San Mateo County Stuart Forrest went down big time (i.e. the jury deliberated only an hour) on two felony counts of possession of child pornography. He faces 3 years 8 months when he is sentenced on September 20, 2013.  Seems kinda low considering the average federal sentence for the same conduct in recent years is almost twice that.  (USSC (2012) Report on the Continuing Impact of United States v. Booker on Federal Sentencing, Analysis on Child Pornography Offenses, at p. 116.) In any event, that he suffered two convictions caught my eye. Why you ask? Check this out:

Daily Defense
There is a lovely rule that I refer to as the "any=many" rule. It is that you cannot be convicted of multiple counts of possessing child pornography just because you had several different images or videos, so long as you possessed them at the same time.  (People v. Hertzig (2008) 156 Cal.App.4th 398, 404.)

As far as I can tell from the cases, the basis of the rule is statutory interpretation, not constitutional. Sidenote, if there is a constitutional basis that justifies this please let me know. This should not be confused with the bar against multiple sentences for the same conduct. We are talking about multiple convictions here.

Here is the statutory interpretation logic: In many statutes banning things, the legislature uses the term "any."  For example, a "person who knowingly has in his or her possession . . . any controlled substance" is guilty of a felony. So, the logic goes, it is unclear if "any" means "many" or "one."  Because if it means many (or more than one), then the statute essentially reads "any person who knowingly has in his or her possession . . .many controlled substances" is guilty of a felony. In other words, you possess. many controlled substances, you are guilty of only one felony. Great rule.

Here are just a few cases where the courts said hella contraband=only one conviction:

• multiple blank checks (People v. Bowie (1977) 72 Cal.App.3d 143).
• multiple pieces of property with altered serial numbers (People v. Harris (1977) 71 Cal.App.3d 959).
• multiple (AND DIFFERENT: heroin and meth) controlled substances in the same location (People v. Rouser (1997) 59 Cal.App. 4th 1065) (note, this was due to the same statute banning "any" controlled substance in a prison without differentiating between heroin/meth).
• multiple weapons of the same type at the same time (People v. Rowland (1999) 75 Cal.App.4th 61).

Seems pretty straightforward right? WRONG!

Now here's the bullshit that we call the "criminal justice system."  

The first bummer, though expected, was the legislature fixed the many any issue regarding sawed off shotguns.  

There was a case in 1989 (People v. Kirk (1989) 211 Cal.App.3d 58) where a dude had 3 sawed off shotguns and the appellate court was all "look at the statute to see if it allows for multiple convictions for each item of contraband.  the statute essentially says 'if you possess any saw offed shotgun yous guilty of a felony!' so the court says "any" is ambiguous--it could mean one, it could mean many.  rule of lenity. badabing badaboom, 3 for 1 deal, 3 sawed off shotguns, 1 conviction." (and that's a quote!) 

The legislature went ape shit.  Artist rendering:

They passed legislation that said 1 unit of contraband, 1 conviction, 2 units, 2 convictions, 3 sawed off shotguns=3 convictions.  But, they didn't go through all the statutes to make clear whether there could or could not be multiple convictions for those statutes.   

OLD RULE

NEW RULE

You'd think that the rule is pretty clear.  It is stated in many cases over many years and the legislature is clearly aware of it:  if the statute says "any" then no matter how many pieces of contraband you have at the same time you can only get one conviction, unless the legislature goes bananas and changes the statute.  Right?

WRONG!!!

Check out this fakakta opinion that says well here, as opposed to in all the other statutes, when the legislature used the word "any" they meant singular unit (what??) and rule of lenity shmenity because this is not ambiguous.  (People v. DeGuzman (2003) 113 Cal.App.4th 538, 548.)  I.e. If D has hella destructive devices then D gets hella convictions.  (Id. [use of the word "hella" added.])  Double You. Tee. Eff. (read: wtf).

Bottom line: Anytime you see multiple counts charged for multiple items of contraband that your client allegedly possessed (ideally at the same time) this is definitely a viable issue to raise. I can't explain DeGuzman though. If you can, email me or comment!