Court of Appeal:
Threat to Judge Isn’t Interference With ‘Executive Officer’
Justices Respond to Various Contrary Arguments by Office of California Attorney General
By a MetNews Staff Writer
Div. Two of the Fourth District Court of Appeal district has reversed the conviction of a man under Penal Code §69—which renders it a crime to attempt “by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon the officer by law”—because the conviction was based on threats uttered to a federal magistrate judge and three Riverside Superior Court judges.
“[A] judge is not an ‘executive officer’ within the meaning of section 69, as a matter of law,” Justice Frank J. Menetrez declared in his opinion, filed Wednesday.
The San Bernardino County District Attorney’s Office nonetheless prosecuted Paul Howard Hupp under that statute. During the course of the proceedings, San Bernardino Superior Court Judge Alexander R. Martinez expressed doubt as to applicability of the statute, but allowed the prosecution to continue, noting that there will be a “[m]onumental issue” of first impression “that will obliterate the case on appeal if the Court says judges don’t apply.”
The Office of Attorney General produced various inventive theories on appeal as to why the conviction should stand.
Definition of ‘Executive’
“Depending on context, the ordinary meaning of the term ‘executive officer’ is either an officer of the executive branch of government or a person occupying a leadership role in a business organization….Given that section 69 is located in title 5 of part 1 of the Penal Code, which is entitled, ‘Of Crimes By and Against the Executive Power of the State,’ the governmental meaning applies in this case.
“In the government context, ‘executive’ has a specific and well-established meaning. As an adjective, it conveys that the noun it modifies relates to or is part of the executive—that is, the branch of government responsible for enforcing laws….Moreover, our state constitution recognizes and has always recognized the separation of legislative, executive, and judicial powers….That separation was well understood when section 69 was enacted in 1872 as part of the original Penal Code….Under the plain meaning of the term ‘executive’ in the government context, judges are not executive officers; they are judicial officers.”
Attorney General’s Contentions
Addressing contentions of the Office of Attorney General, Menetrez agreed that §69 has been interpreted in cases to cover persons other than peace officers, but pointed out that such cases “provide no authority for the proposition that the term extends to officers outside the executive branch.”
He also acknowledged that the portion of the Penal Code in which §69 is located—Title 5—contains two provisions, §71 and §76, that do apply to judges, but rejected the reasoning that this means §69 necessarily does, also. Those two broad sections, had to go someplace, he said, and Title 5 was a handy repository.
(Sec. 76 says that any person who “knowingly and willingly threatens the life of, or threatens serious bodily harm to, any…judge…with the specific intent that the statement is to be taken as a threat, and the apparent ability to carry out that threat by any means, is guilty of a public offense.…” A deputy district attorney explained to Martinez that Hupp was not being prosecuted under that statute because “based on the evidence we have” of vague threats to the judges, “it doesn’t quite reach the level of a 76”—and at a time when Hupp was being prosecuted solely for the threat to the magistrate judge, he was bound over for trial only on the §69 count and not the §76 count.)
Administrative, Ministerial Officers
The People pointed to Penal Code §77 which says that “[t]he various provisions of this title, except Section 76, apply to administrative and ministerial officers, in the same manner as if they were mentioned therein,” and contended that this shows “that section 69 does not apply exclusively to executive officers despite its limited language, but is meant to be broad and expansive in its reach.” Menetrez responded:
“But the People cite no authority for the proposition that judges are administrative or ministerial officers, which they clearly are not.”
The Attorney General’s Office also fashioned the argument that since prosecutors are regarded as quasi-judicial officers, entitled to judicial immunity, “the same logic must be extended to…judges” for purpose of including them under §69. Menetrez said that judicial immunity extends to prosecutors, who are members of the Executive Branch, because “because prosecutors often engage in the type of judicial activities that the immunity was designed to protect (e.g., interpreting laws and applying them to evidence),” but that “the People do not identify any judicial duties that are executive in nature.”
“Moreover, even if there were such a judicial duty, the People’s argument would still fail. The issue presented in this case is one of statutory interpretation, not whether public policy supports treating judges as executive officers for purposes of a common law doctrine.”
Standard Jury Instruction
The Attorney General’s Office argued on appeal, as the District Attorney’s Office had a pre-trial hearing that §69 must Apply to judges because CALCRIM No. 2651, the pattern jury instruction for §69 prosecutions, defines an “executive officer” as “a government official who may use his or her own discretion in performing his or her job duties.”
“The fact that CALCRIM No. 2651’s definition of ‘executive officer’ appears to be far broader than the plain meaning of the term does not mean that we should stretch our interpretation of the statute to fit the instruction. Rather, it suggests that the instruction may need to be revised to convey that the term is limited to the executive branch.”
Martinez sentenced Hupp to 10 years, but did so based both on the four counts of violating §69 and also crimes of which he was found guilty earlier in a separate trial. Wednesday’s opinion orders a remand for further proceedings.
The case is People v. Hupp, 2023 S.O.S. 3957.
In a separate opinion, this one unpublished, Div. Two on Wednesday decided the appeal from the convictions by a jury in the earlier case, tried in the courtroom of Riverside Superior Court Judge James B. Jennings. The offenses were criminal threats, attempted criminal threats, and misdemeanor elder abuse.
Jennings employed the wrong standard, Menetrez wrote, in denying a motion to strike a 2013 strike. The sentence was vacated and a remand was ordered for a new hearing on the motion.
Hupp’s other contentions were found to lack merit. One of the was that he was forced to wear the same civilian apparel for five days after Jennings denied his motion to be supplied with “two (2) new 2XL polo shirts for trial.”
“As the People correctly point out, Hupp’s claim is not grounded in a constitutional right. Although criminal defendants are constitutionally entitled to wear civilian clothing at trial, the right is no more specific than that. In other words, there is no constitutional right to clean civilian clothing or to a different outfit each day of trial. Hupp cites no authority to the contrary.”
Wearing Leg Brace
Hupp also contested the denial of his motion to be relieved of a leg brace he had been compelled to wear under his pants. That denial was based on the fact that the Sheriff’s Department requires all criminal defendants who are not shackled to be fitted with such an apparatus.
The justice said that Jennings abused his discretion “by deferring to the sheriff’s policy” but concluded that the error is not reversible because there is no evidence that the brace was visible.
“Even if we give Hupp the benefit of the doubt and assume that the bumps in his pant leg caused by the brace were visible to the jurors, there is no evidence—or even uncorroborated assertions by Hupp—that the jurors would have inferred he was wearing a physical restraint rather than bandages or some type of medical device. On this record, there is no evidence that the jury became aware that Hupp was physically restrained during trial.”
That case is People v. Hupp, E078421.
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