Wednesday, March 16, 2016

Page 8

EDITORIAL

Kathryn Ann Solorzano

Los Angeles Superior Court Office No. 165

Los Angeles Superior Court Judge Kathryn Ann Solorzano—a jurist known for a keen commitment to her job, industriousness, and a quest for fairness—has drawn an election challenge from a deputy public defender who, until she took out her declaration of intent, worked in the judge’s courtroom.

Challenger Tami L. Warren won’t say why she has targeted Solorzano.

Yet, the reason really doesn’t matter. What does matter is that Solorzano (pronounced So-LORZ-a-no), from all that can be discerned, is an extraordinarily conscientious and able jurist who, in the public’s interest, should be kept on the bench. Indeed, the citizenry is fortunate to have had her judicial service over a period of nearly eight years.

Our conclusion as to excellence of that service is, we believe, borne out by observations from persons who know about her, quoted in a profile appearing in yesterday’s issue, and other information. We do, with gusto, endorse her.

So, what more need be said? Surely there is no necessity to examine what a challenger has to offer where the performance of the incumbent is manifestly exemplary—and in this instance, not even brought into question by the challenger.

Yet, viewing, as we do, judicial elections to be of a significance far greater than is commonly ascribed to them, with the broader the discussion being the better, we proceed to say more.

ARREN IS A LAWYER WHOSE advocacy sometimes gets out of hand, whose judgment is deficient, whose credentials for a judgeship simply fall far short.

She has, however, much to her credit, been active in bar activities, notably as president of the Black Women Lawyers Association, as a member of the Los Angeles County Bar Association committee that rates judicial candidates, and as a member of the State Bar Commission on Judicial Appointments that evaluates applicants for judicial appointments, as well as membership in other bar groups. This does reflect dedication to the legal profession.

Her skills in presenting the defendant’s side of the case to the jury are not questioned.

In the years ahead, once she gains maturity, greater experience in a courtroom, and, under guidance, steadiness and retraint, she might well be ready for judicial service.

At present, she isn’t.

OLORZANO HAS BROAD SUPPORT among colleagues. That, in and of itself, is a ho-hum proposition. Traditionally, when a judge is challenged, judges close ranks; they provide financial support from their PAC no matter what the performance of the endangered cohort has been.

In the instances of two sitting Los Angeles Superior Court judges who were challenged in past years—Barbara A. Meiers (1988), when she was a judge of the Los Angeles Municipal Court, and Ralph Dau (in 2008)—colleagues who had publicly endorsed them uttered depracatory remarks about them to this newspaper, privately.

Solorzano not only draws praise, but effusive, and obviously heartfelt, praise. She’s stationed at the Airport Courthouse, and the site judge there, Mark Windham, hails her as the “ideal judge.”

Moreover, both prosecutors and criminal defense lawyers, with knowledge of her performance, speak high praise of her.

HE TWO CRITICISMS of Solorzano we have encountered are that she can be ascerbic—this appears to relate to her occasional reaction to inappropriate conduct on the part of counsel, voiced outside the hearing of jurors or the defendant—and that she is sometimes slow in ruling. Any slowness is explained by her extreme care in seeking to make the right ruling. This includes doing what should be done by all judges but all too often isn’t: actually reading the papers that are submitted (hallelujah!) and reading the cases that are cited (let the trumpets blare!).

By no means is she laggardly. To the conrary, she is the judge who stays the latest at the courthouse; she takes cases home with her to review late nights and on weekends.

The public is far better served by a judge who takes the time to make certain what the law is than one who shoots from the hip, assuming that his or her gut reaction just happens to correspond with statutory and case law.

There is, from what we have gathered, nothing in Solorzano’s performance that contradicts Windham’s assessment of her as an “ideal judge.”

OLARZANO’S DECISIONS HAVE been scrutinized by the Court of Appeal 20 times, on each occasion in an unpublished opinion. Affirmances came in the last 16 cases in a row.

She previously suffered three reversals, in whole or in part—though one reversal would seem not to count, and one is subject to question as to its soundness.

•In People v. Bauer (2010), Div. Seven of this district’s Court of Appeal, in an opinion by then-Justice Fred Woods (since retired), found that Solorzano erred in declining to grant the 2010 motion of a defendant who was sentenced the previous year. The defendant sought an increase in pre-conviction conduct credits on the basis of an amendment to a Penal Code section, liberalizing credits, that went into effect Jan. 25, 2010. The reversal was tethered to a published decision by Woods earlier that year which held the amendment to be retroactive. At the time of the decision reversing Solorzano, the districts were split and the issue was before the California Supreme Court. In People v. Brown (2012) 54 Cal. 4th 314, the high court unanimously determined that the amendment was not retroactive. Erase from the blackboard the mark against her.

•Then-Justice Frank Jackson (also retired) penned the Div. Seven opinion reversing Solorzano in People v. Baxter (2012). There, she revoked probation in the case of a man convicted of selling or transporting marijuana. She found he violated a term of probation proscribing his use or possession of “any narcotics, dangerous or restricted drugs or associated paraphernalia, except with a valid prescription.”

At the probation revocation hearing, the defendant argued he should not be faulted for his lawful possession of medical marijuana. Solorzano responded that he could have sought modification of the conditions of probation to permit such use, but hadn’t, and instead defied the no-drugs proviso.

In the opinion reversing Solorzano, Jackson said that while the judge “could have imposed a no medical–marijuana condition, the minute order is silent as to whether defendant could possess marijuana for medical purposes with a valid medical marijuana card or prescription.” He declared: “This ambiguity in the probation condition must be resolved in favor of defendant.”

His reasoning, we submit, is flawed.

The routine condition-of-probation imposed by Solorzano barred possession of drugs “except with a valid prescription.” The Compassionate Use Act (“CUA”) of 1996 provides for a “recommendation by a physician” (Health & Safety Code §11362.5(b)(1)(B)), not a prescription. The distinction is meaningful. A doctor does not scribble out a prescription for marijuana which the patient then scurries off to a pharmacy to have filled. (In point of fact, the “recommendation” most often comes not from the family doctor but from a physician who can’t make a living praticticing medicine and is connected with the “pot” dispensary, who makes no physical examination, conducts no follow-up exam, and never says “no.”)

The salient fact, overlooked by Jackson, is that marijuana may not lawfully be prescribed. The U.S. Drug Enforcement Administration continues to list marijuana as a “Schedule 1 substance”—the most dangerous of drugs. Presidential candidate Hilliary Clinton and others contest the rationality of the classification, but unless and until that’s changed, it’s the law.

Such a drug is defined in 21 U.S. Code §812 as follows: “(A) The drug or other substance has a high potential for abuse. [¶] (B) The drug or other substance has no currently accepted medical use in treatment in the United States. [¶] (C) There is a lack of accepted safety for use of the drug or other substance under medical supervision.”

Solorzano told the defendant that upon receiving a medical merijuana recommendation, he could have sought a modification of the conditions of probation. Health & Safety Code §11362.795(a)(3) provides:

“During the period of probation or release on bail, if a physician recommends that the probationer or defendant use medical marijuana, the probationer or defendant may request a modification of the conditions of probation or bail to authorize the use of medical marijuana.”

Clearly, that puts the burden on the probationer to seek a modification of the probation terms in order to use marijuana without violating those terms, not on the trial judge to spell out that, prospectively, medical marijuana use is barred no matter what medical necessity for it might be sustainable.

Accordingly, there was no “ambiguity” in the requirement that the probationer not use drugs “except with a valid prescription”; there can be no prescription for marijuana. Solorzano did not create wiggle-room for the probationer by not specifying that he could never qualify for medical marijuana; it was up to him to seek modification of the probation terms if a need could be established. In our view, the reversal was on infirm grounds.

•In People v. Canete (2013), the judgment was reversed only as to sentencing.

In Bauer and Baxter there would likely not have been a reversal had the case been decided by a division comprised of jurists more adroit than those who staffed Div. Seven, the glory of which perished with the 2002 death of Presiding Justice Mildred Lillie.

In Canete, there would likely not have been a reversal by any other division in the state. Reversing was this district’s Div. Four, in an opinion by Presiding Justice Norman Epstein, widely regarded as the most brilliant appellate court justice in California. He spotted an infirmity not brought to Solorano’s attention, an infirmity not mentioned on appeal.

A purse-snatcher had been convicted in Solorzano’s courtroom of robbery and “access card theft,” the latter offense being based on his fraudulent use of a credit card in the purse, minutes after the snatching. The judge imposed consecutive sentences under the mandate of a seemingly applicable statute.

Argument was waived in the appeals court, and on Dec. 11, 2012, the cause was submitted. On Jan. 29, 2013, an order was filed vacating submission and ordering letter briefs addressing the question of the applicability of Penal Code §654, which bars multiple punishments for a single course of conduct.

In the opinion, Epstein said:

“We believe the only reasonable inference to be drawn is that appellant took [the victim’s] purse intending to use whatever was in it, including the access card. Because this comprised one indivisible course of conduct and the offenses were incident to one objective, section 654 bars punishment for more than one of these offenses.”

The analysis leaves little, if any, room for dispute.

E DO NOT DISCOUNT the possibility that one or more of the decisions affirming Solorzano, which we have not examined, could reasonably be viewed as having been wrongly decided, but we are aware of no criticism, and, given that the opinions were unpublished, it is doubtful that critques, if any, are readily available.

We do observe that out of 20 Court of Appeal decisions passing on her decisions, one of three reversals was based on a proposition later repudiated by the California Supreme Court; one was based on analysis which, we would assert, was simply balmy; and one (a limited reversal) was based on a proposition not presented to Solorazno, and not discernible except upon the closest of analysis.

In all, her appellate record reflects careful and accurate decisionmaking.

Solorzano cannot be regarded as other than an exceptionally gifted and dedicated member of the Superior Court bench whose services voters should not want to lose.