Lead Opinion
Opinion
Defendant Jaleh Wilkinson was convicted at trial of the offenses of battery on a custodial officer, driving a vehicle under the influence of alcohol, and failing to stop at the scene of an accident. The Court of Appeal reversed defendant’s convictions on two unrelated grounds, concluding that (1) the statutory scheme pertaining to battery on a custodial officer violates equal protection principles because the statutes allow battery on a custodial officer without injury to be punished more severely than battery on a custodial officer with injury, and (2) the trial court erred in denying defendant a hearing, pursuant to the Kelly/Frye doctrine (People v. Kelly (1976)
For the reasons discussed below, we conclude that (1) the statutory provisions pertaining to battery on a custodial officer do not violate the equal protection clause of the state or federal Constitution, and (2) in light of the categorical prohibition on the admission of polygraph evidence in Evidence Code section 351.1, the trial court did not err in declining to hold a KellylFrye hearing regarding the evidence proffered by defendant. Accordingly, we shall reverse the judgment of the Court of Appeal.
I
Defendant was charged by information with the offenses of battery on a custodial officer (Pen. Code, § 243.1), a felony, and with driving a vehicle
Officers transported defendant to the police station. She was belligerent during booking and resisted a patsearch. At one point, defendant grabbed a custodial officer’s arm with both hands, causing a visible welt. When taken to a holding cell, defendant charged at an officer and yelled, kicked, and banged at the door. After the police reminded defendant that she would have to submit to a blood or breath test, defendant covered her ears, stated “I can’t hear you,” and began running around inside the cell. An officer testified defendant appeared to be under the influence of alcohol but not of drugs.
Defendant testified in her own defense as follows. On the night in question, defendant, a bank vice-president, went to a bar, where she met a man who offered to buy her a drink. She accepted and eventually consumed two glasses of wine. The man invited defendant to dinner, and they agreed to meet at a Santa Monica restaurant. At the restaurant, defendant consumed three alcoholic beverages over the course of three hours while she waited for the man, but he never arrived. She left her drink several times to use the restroom and to smoke a cigarette outside. She eventually left the restaurant, driving away without feeling any signs of intoxication. The next thing she remembered was waking up in jail, with no recollection of her encounter with the officers. After her release from custody, defendant filed a police complaint alleging she had been drugged.
A toxicologist, testifying on behalf of the defense, expressed the opinion that on the night in question defendant was under the influence of alcohol and gamma hydroxy butyrate (hereafter GHB), commonly known as a “date rape” drug, basing his opinion on a review of the police report and a videotape of
Prior to trial, defendant sought admission of evidence establishing that she had submitted to a polygraph examination and that, in the opinion of the polygraph examiner, she had “passed” the exam, responding truthfully (in the negative) to queries regarding whether she knowingly consumed more than five drinks on the night in question, knowingly ingested GHB or any other drug, or knowingly attacked an officer in a detention cell. Defendant requested a Kelly/Frye hearing, making an offer of proof that the polygraph examination technique employed by the examiner had been generally accepted in the scientific community and that the examiner employed proper procedures in administering the test. The trial court declined to hold an evidentiary hearing, citing Evidence Code section 351.1.
The jury convicted defendant as charged, and the trial court placed defendant on formal probation for three years. The Court of Appeal reversed defendant’s convictions, determining by a two-to-one vote that the statutory scheme pertaining to battery on a custodial officer violates equal protection principles, and unanimously concluding that the trial court erred by failing to hold a Kelly/Frye hearing regarding the admissibility of defendant’s proffered polygraph evidence. We granted the Attorney General’s petition for review as to both issues.
A
Defendant was convicted of violating Penal Code section 243.1,
At the time section 243.1 was enacted in 1976, section 243 prescribed the punishment (1) for simple battery (which section 243 made punishable as a misdemeanor), (2) for battery against a person who the defendant knew or should have known was a “peace officer or fireman engaged in the performance of his duties” (which section 243 made punishable as either a felony or a misdemeanor, commonly known as a “wobbler”), and (3) for battery resulting in the infliction of “serious bodily injury” (which section 243 also made punishable as a wobbler, prescribing a punishment of two, three, or four years’ imprisonment for a felony violation).
On appeal, defendant contended in relevant part that the current statutory scheme pertaining to battery on a custodial officer is “irrational” and violates the federal and state guarantees of equal protection because one who commits the “lesser” offense of battery on a custodial officer without injury can receive felony punishment under section 243.1 while a person committing the “greater” offense of battery on a custodial officer with injury can be convicted of a wobbler offense under section 243, subdivision (c)(1) and can receive a misdemeanor sentence.
A majority of the Court of Appeal below agreed with defendant, reasoning: “If the battery on custodial officer statutes included only two options, a straight felony under section 243.1 or a straight misdemeanor under section 243, subdivision (b), both of which have identical elements, prosecutorial discretion to choose different punishment between offenders engaging in similar conduct would not violate equal protection . . . . ffl What is troubling about our scheme, however, is its inclusion of a third charging option, the wobbler under section 243, subdivision (c)(1), which contains the additional requirement of infliction of an injury. . . . This third option raises the specter of complete irrationality in the scheme, because the more serious offense of battering a custodial officer with injury could be punished less seriously (an alternative felony/misdemeanor) than battering a custodial officer without injury (a straight felony under section 243.1).” Because the “greater” offense can be punished less severely, the majority found the scheme “is not even rationally related to a scheme which would give prosecutors the entire range
The dissent found no equal protection violation, questioning whether there is substantial evidence that the custodial officer here suffered an “injury” so as to allow a wobbler charge under section 243, subdivision (c)(1). The dissent also questioned whether a battery without injury necessarily was a less serious offense than battery with injury such that greater punishment for the former offense could not be imposed without violating equal protection principles.
C
We begin our discussion with an overview of relevant case authority. Although the precise issue before us has not previously been addressed, at least two cases have discussed the legislative history surrounding the statutory scheme pertaining to battery on a custodial officer. In In re Rochelle B. (1996)
In People v. Chenze (2002)
The United States Supreme Court’s decision in Batchelder, supra,
We recently applied Batchelder in Manduley v. Superior Court (2002)
In Manduley we rejected this claim, reasoning in part: “[A]ll minors who meet the criteria enumerated in [Welfare and Institutions Code] section 707 [, subdivision] (d) equally are subject to the prosecutor’s discretion whether to file charges in criminal court. Any unequal treatment of such minors who commit the same crime under similar circumstances results solely from the decisions of individual prosecutors whether to file against particular minors a petition in juvenile court or instead an accusatory pleading in criminal court. Although, as petitioners assert, a prosecutor’s decision in this regard can result in important consequences to the accused minor, so does a decision by a prosecutor to initiate criminal charges against any individual, including an adult.” (Manduley, supra,
D
The Attorney General contends the statutory scheme before us does not violate equal protection principles because all persons who commit battery on a custodial officer are subject to the same statutory scheme and are not treated differently. He asserts that any possible disparate treatment results from charging decisions of prosecutors that, under Batchelder and Manduley, do not violate equal protection principles. The Attorney General further argues that in resolving the equal protection issue, we should conduct so-called rational basis review and find that there exists a rational basis for the statutory scheme at issue.
Defendant argues, in contrast, that so-called strict scrutiny should apply to the equal protection question at issue, because the present classification involves the “fundamental interest” of the “right to liberty.” Further, defendant contends that even assuming that rational basis review applies, the Court of Appeal majority properly concluded that the statutory scheme before the court was irrational because it allows one who commits the “greater” offense (battery on a custodial officer with injury) to be punished less severely than one who commits the “lesser” offense (battery on a custodial officer without injury).
It is a fundamental principle that, “[t]o succeed on [a] claim under the equal protection clause, [a defendant] first must show that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.” (Manduley, supra,
Defendant relies upon People v. Olivas (1976)
The language in Olivas could be interpreted to require application of the strict scrutiny standard whenever one challenges upon equal protection grounds a penal statute or statutes that authorize different sentences for comparable crimes, because such statutes always implicate the right to “personal liberty” of the affected individuals. Nevertheless, Olivas properly has not been read so broadly. As the court observed in People v. Davis (1979)
We find the rational basis test applicable here. Defendant contends that the statutory scheme regarding battery on a custodial officer violates equal protection principles because it allows the “lesser” offense of battery without injury to be punished more severely than the “greater” offense of battery with injury. A defendant, however, “does not have a fundamental interest in a specific term of imprisonment or in the designation a particular crime receives.” (People v. Flores (1986)
Turning to the merits of defendant’s claim, we find it unpersuasive. Batchelder instructs us that neither the existence of two identical criminal statutes prescribing different levels of punishments, nor the exercise of a prosecutor’s discretion in charging under one such statute and not the other, violates equal protection principles. (Batchelder, supra, 442 U.S. at pp. 124-125.) Thus, defendant may not complain that she was charged with a felony violation under section 243.1 even though section 243, subdivision (b) is an identical statute prescribing a lesser punishment. As we observed in Manduley, numerous factors properly may enter into a prosecutor’s decision to charge under one statute and not another, such as a defendant’s background and the severity of the crime, and so long as there is
Defendant, citing section 243, subdivision (c)(1), claims that the statutory scheme is irrational, based on her assertion that under the current scheme the “lesser” offense of battery on a custodial officer without injury may be punished more severely than the “greater” offense of battery on a custodial officer with injury. Defendant’s assertion is based upon the questionable premise that battery on a custodial officer without injury always is a less serious offense than battery with injury, so as to warrant inevitably a lesser punishment. The dissent below questioned whether a hypothetical defendant “who, in the course of grabbing the arm of a correctional officer, inflicts a puncture wound with her fingernail that requires medical attention” would be more culpable “than a defendant who repeatedly hits and kicks the correctional officer, intending to cause serious injury but does not do so through no lack of effort.” As recounted by the court in Chenze, the Legislature amended section 243 to include references to custodial officers while simultaneously not repealing section 243.1. The legislative history of the amendment suggests the amendment was intended to allow misdemeanor prosecutions of batteries committed on custodial officers, and the Legislature did not repeal section 243.1 to allow felony prosecutions for more serious cases, even if no injury was inflicted. (See Chenze, supra,
Another premise underlying defendant’s claim of irrationality that the current statutory scheme allows battery on a custodial officer, without injury, to be punished “more severely” than battery with injury appears somewhat questionable. As noted, a person who commits battery on a custodial officer, without injury, faces the same maximum imprisonment under section 243.1 as one who commits battery on a custodial officer with injury under section 243, subdivision (c)(1), namely state imprisonment for 16 months, two years, or three years.
The circumstance that the Legislature did not grant to the trial court the same discretion in prosecutions under section 243.1 to reduce the charge to a misdemeanor as it did for prosecutions under section 243, subdivision (c) does not render the statutory scheme unconstitutional. A rational basis for these statutes exists; the Legislature reasonably could have concluded that reduction of the section 243.1 offense is not appropriate in cases of a battery on a custodial officer that is deemed serious enough by the prosecutor to warrant felony prosecution under the latter statute. As the Legislature properly may eliminate a trial court’s discretion to dismiss an action or strike an allegation in furtherance of justice (see People v. Superior Court (Romero) (1996)
A
With regard to the second issue before us, the Attorney General contends the Court of Appeal erred by remanding for a Kelly/Frye hearing, because Evidence Code section 351.1 establishes a categorical prohibition on the admission of polygraph evidence in criminal cases absent a stipulation. Subdivision (a) of section 351.1, which was enacted in 1983, provides: “Notwithstanding any other provision of law, the results of a polygraph examination, the opinion of a polygraph examiner, or any reference to an offer to take, failure to take, or taking of a polygraph examination, shall not be admitted into evidence in any criminal proceeding, including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court, unless all parties stipulate to the admission of such results.”
As noted, prior to trial defendant filed a written motion seeking an evidentiary hearing to determine the admissibility of evidence tending to establish that she had “passed” a polygraph examination. Defendant indicated that at such hearing she would present testimony by “one or more experts” proving that polygraph examinations now were generally accepted in the scientific community within the meaning of the Kelly/Frye test. As an offer of proof, defendant explained that the polygraph expert who examined her utilized the “control question” method;
On appeal, defendant contended that, notwithstanding the apparent categorical prohibition of Evidence Code section 351.1, she was entitled to a Kelly/Frye hearing to determine the admissibility of her proposed polygraph evidence under the reasoning of this court’s decisions in People v. Jackson (1996)
B
Prior to the enactment of Evidence Code section 351.1, the admission of polygraph evidence in California was governed by the test of Frye v. United States, supra,
The legal landscape in California changed with the Court of Appeal’s opinion in Witherspoon v. Superior Court (1982)
“It was in reaction to Witherspoon that the Legislature enacted Evidence Code section 351.1.” (People v. Kegler (1987)
As past decisions make clear, the Kelly/Frye test constitutes a judicially created rule relating to the admissibility of certain types of evidence and, as such, a rule that is subject to legislative revision. (See, e.g., People v. Leahy, supra,
This understanding of Evidence Code section 351.1 is consistent with numerous cases that subsequently have interpreted the statute to exclude
C
We first address defendant’s claim that she was entitled to a Kelly/Frye hearing notwithstanding Evidence Code section 351.1. We begin with a review of the relevant portions of the decisions in Jackson, supra,
In Fudge, the defendant attempted to present evidence at the penalty phase of a capital trial that he had “passed” a polygraph examination, arguing that
As the foregoing decisions demonstrate, defendant is correct in observing that, even after the enactment of Evidence Code section 351.1, we have required, as a prerequisite to preserving the claim for appeal, that a challenge to the constitutionality of this statute include an offer of proof that the proffered polygraph evidence is generally accepted under the Kelly/Frye standard. The constitutional challenges to section 351.1 raised in the foregoing cases generally have involved claims that the exclusion of polygraph evidence deprived a defendant of his or her right to present “reliable exculpatory evidence” at the guilt phase of a capital trial (see Jackson, supra, 13 Cal.4th at pp. 1212-1213), “relevant mitigating evidence” at the penalty phase (see Fudge, supra, 7 Cal.4th at pp. 1122-1123; see also People v. Koontz, supra,
The Court of Appeal correctly concluded in the present case that defendant had preserved her constitutional challenge to section 351.1 by making her offer of proof regarding the reliability of polygraph evidence under Kelly/Frye. The court, however, went further and remanded the case to the trial court to conduct a Kelly/Frye hearing, directing the trial court to set aside the judgment if that court found the polygraph evidence to be “admissible” under the Kelly/Frye standard, that is, if defendant demonstrated at the hearing that the polygraph technique employed was generally accepted in the scientific community.
Although our past cases have determined that an offer of proof regarding the reliability of polygraph evidence is a prerequisite for raising a constitutional challenge against Evidence Code section 351.1’s categorical exclusion, we never have held that such proof is sufficient by itself to make out such a claim, that is, we never have suggested that evidence that satisfies the Kelly/Frye test must, as a constitutional matter, be admitted in evidence notwithstanding the statutory provision barring such admission. Indeed, in our recent decision in People v. Burgener, supra,
D
The Attorney General contends that under the reasoning of United States v. Scheffer, supra,
Justice Kennedy, in a concurring opinion joined by three other justices,
We recently applied Scheffer in Maury, supra,
We reach the same conclusion here. Scheffer noted that “the scientific community remains extremely polarized about the reliability of polygraph techniques.” (United States v. Scheffer, supra,
Defendant cannot persuasively contend that between the time of the Scheffer decision and defendant’s trial, a span of two and one-half years, the deep division in the scientific and legal communities regarding the reliability of polygraph evidence, as recognized by Scheffer, had given way to a general acceptance that would render the categorical exclusion of polygraph evidence “so arbitrary or disproportionate that it is unconstitutional.” (United States v. Scheffer, supra,
Defendant contends the polygraph evidence she proffered was “critical to her defense” and thus exclusion of this evidence deprived her of the constitutional right to present a defense, citing Rock v. Arkansas (1987)
These decisions do not assist defendant. Scheffer distinguished Rock and Chambers, finding that “unlike the evidentiary rules at issue in those cases, [the rule excluding polygraph evidence] does not implicate any significant interest of the accused.” (United States v. Scheffer, supra, 523 U.S. at pp. 316-317 (lead opn. of Thomas, J.).) The use of polygraph evidence proposed at defendant’s trial was indistinguishable from that proposed in Scheffer. Defendant sought the admission of polygraph evidence to bolster her testimony that she was not under the influence of alcohol prior to leaving the restaurant and driving home, and to corroborate evidence suggesting that her subsequently inebriated state (which led to her erratic driving and assault of a custodial officer) could have been caused by someone placing a
IV
The judgment of the Court of Appeal is reversed. Because no issue has been presented to us concerning defendant’s petition for a writ of habeas corpus (see fn. 1, ante), we express no opinion on that matter.
Baxter, J., Werdegar, J., Chin, J., Brown, J., and Moreno, J., concurred.
Notes
Defendant filed a petition for a writ of habeas corpus, which the Court of Appeal considered concurrently with her appeal. She claimed in that petition that her trial counsel rendered ineffective assistance by counseling her to reject a plea agreement that would have allowed her to plead guilty to two misdemeanor counts and serve no jail time, by rejecting a plea offer without consulting defendant, and by misinforming her regarding the admissibility of evidence. Defendant declared she faced deportation to Iran as a result of her felony conviction. The Court of Appeal issued an order to show cause in the habeas corpus matter, returnable before the trial court. Because no issue has been presented here regarding defendant’s habeas corpus claims, we do not address them.
Subsequent statutory references are to the Penal Code unless otherwise indicated.
Because section 243.1 was amended without substantive change after the commission of the present offenses, we consider the current version of that statute.
Section 243 then stated in relevant part: “A battery is punishable by fine of not exceeding one thousand dollars ($1,000), or by imprisonment in the county jail not exceeding six months, or by both. When it is committed against the person of a peace officer or fireman, and the person committing the offense knows or reasonably should know that such victim is a peace officer or fireman engaged in the performance of his duties, and such peace officer or fireman is engaged in the performance of his duties, the offense shall be punished by imprisonment in the county jail not exceeding one year or by imprisonment in the state prison. When it is committed against a person and serious bodily injury is inflicted on such person, the offense shall be punished by imprisonment in the county jail for a period of not more than one year or imprisonment in the state prison for two, three, or four years.” (Stats. 1976, ch. 1139, § 150.5, p. 5104.) Section 243 later was amended to provide expressly that a felony violation involving a peace officer or fireman could be punished by imprisonment in the state prison for 16 months or two or three years. (Stats. 1980, ch. 1340, § 2.2, p. 4719.)
Section 243, like section 243.1, was amended without substantive change subsequent to the commission of the present offenses. In its current form, section 243, subdivision (b) provides in full: “When a battery is committed against the person of a peace officer, custodial officer, firefighter, emergency medical technician, lifeguard, process server, traffic officer, code enforcement officer, or animal control officer engagéd in the performance of his or her duties, whether on or off duty, including when the peace officer is in a police uniform and is concurrently performing the duties required of him or her as a peace officer while also employed in a private capacity as a part-time or casual private security guard or patrolman, or a nonswom employee of a probation department engaged in the performance of his or her duties, whether on or off duty, or a physician or nurse engaged in rendering emergency medical care outside a hospital, clinic, or other health care facility, and the person committing the offense knows or reasonably should know that the victim is a peace officer, custodial officer, firefighter, emergency medical technician, lifeguard, process server, traffic officer, code enforcement officer, or animal control officer engaged in the performance of his or her duties, nonswom employee of a probation department, or a physician or nurse engaged in rendering emergency medical care, the battery is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.”
Section 243, subdivision (c)(1) currently provides: “When a battery is committed against a custodial officer, firefighter, emergency medical technician, lifeguard, process server, traffic officer, or animal control officer engaged in the performance of his or her duties, whether on or off duty, or a nonswom employee of a probation department engaged in the performance of his
Section 243, subdivision (d) currently provides: “When a battery is committed against any person and serious bodily injury is inflicted on the person, the battery is punishable by imprisonment in a county jail not exceeding one year or imprisonment in the state prison for two, three, or four years.” “Serious bodily injury,” for purposes of this provision, is defined as “a serious impairment of physical condition, including, but not limited to, the following: loss of consciousness; concussion; bone fracture; protracted loss or impairment of function of any bodily member or organ; a wound requiring extensive suturing; and serious disfigurement.” (§ 243, subd. (f)(4).)
A person prosecuted under section 243, subdivision (c)(1) faces an additional fine of up to $2,000 which that person would not face under section 243.1.
Section 17, subdivision (b) states in relevant part: “When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances: H] (1) After a judgment imposing a punishment other than imprisonment in the state prison. [f] . . . [jD (3) When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor, [y... ® (5) When, at or before the preliminary examination ... the magistrate determines that the offense is a misdemeanor, in which event the case shall proceed as if the defendant had been arraigned on a misdemeanor complaint.”
In arguing that the existing statutory scheme is irrational and violates equal protection principles, the concurring and dissenting opinion states that prosecutors would have no incentive to charge a defendant with a wobbler under section 243, subdivision (c), because that provision requires proof of the additional element of injury and prescribes a “lesser” penalty than that provided for a violation of the straight felony of section 243.1. This point misjudges the significance of the United States Supreme Court’s holding in Batchelder, supra,
The concurring and dissenting opinion’s observation that the prosecutor in this case twice offered to dismiss the section 243.1 charge pursuant to a plea agreement does not call into question our conclusion that the Legislature properly can eliminate a trial court’s discretion to reduce a charge in cases deemed by the prosecutor to warrant felony treatment. Such offers may reflect the prosecutor’s judgment regarding the benefits of avoiding the administrative burden and expense of a trial rather than reflecting an assessment by the prosecutor regarding the seriousness of the offense. In any event, the circumstance that a prosecutor may engage in plea negotiation regarding a section 243.1 offense does not establish that no rational basis exists for the Legislature to provide an alternative that does not afford a trial court discretion to reduce a charge when such plea negotiation fails. Further, because any battery on a custodial officer, whether with or without injury, may be prosecuted under section 243.1, the concurring and dissenting opinion’s argument that no rational basis exists for eliminating the trial court’s discretion to reduce the charge when a defendant is prosecuted for a straight felony under section 243.1 misses the mark.
In addition, contrary to the suggestion in the concurring and dissenting opinion, the present case does not involve any issue regarding necessarily included offenses, because there is no claim that section 243.1 is a necessarily included offense of section 243, subdivision (c), so that a jury must be instructed on section 243.1 when a defendant is charged under section 243, subdivision (c). Defendant was charged and the jury was instructed only under section 243.1. If a jury were to be instructed on a lesser necessarily included offense in a case in which the defendant is charged under the wobbler provision of section 243, subdivision (c), it appears that the lesser necessarily included offense that the jury would be instructed upon would be the misdemeanor offense prescribed by section 243, subdivision (b), rather than the felony offense prescribed by section 243.1.
“The control question technique involves basically two types of questions; control or comparison questions and relevant questions that specifically concern the investigation at hand. The control questions are designed to arouse the concern of the innocent subject and it is expected that the subject will react more strongly to them than to the relevant questions. The control questions deal with acts that are similar to the issue of the investigation. However, they are more general, cover long periods of time in the life history of the subject, and are deliberately vague. During the pretest review of the control questions, the examiner carefully introduces the control questions to the subject so that in answering these questions on the test the subject is likely to be deceptive or uncertain as to the truthfulness of his answers. In this way, the innocent subject will react more strongly to the control questions than to the relevant questions. On the other hand, guilty subjects who answer the relevant questions deceptively will be more concerned about being detected in that deception than with the control questions. Thus, it is the comparative reactivity rather than the absolute reactivity to a particular question that forms the basis for determining truth or deception.” (United States v. Galbreth (D.N.M. 1995)
Although defendant’s brief in this court contains a fleeting reference to “her rights to federal and state due process” in the heading of the brief’s argument relating to the exclusion of polygraph evidence, her brief fails to cite any authority or present any argument relating to state constitutional due process principles. “[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration. [Citations.]” (9 Wilkin, Cal. Procedure (4th ed. 1997) Appeal, § 594, p. 627; see also People v. Stanley (1995)
Military Rules of Evidence, rule 707(a) provides: “Notwithstanding any other provision of law, the results of a polygraph examination, the opinion of a polygraph examiner, or any reference to an offer to take, failure to take, or taking of a polygraph examination, shall not be admitted into evidence.”
Chief Justice Rehnquist and Justices O’Connor, Scalia, Kennedy, Souter, Ginsburg, and Breyer joined this portion of Justice Thomas’s opinion in Scheffer. (See United States v. Scheffer, supra, 523 U.S. at pp. 309-311 (lead opn. of Thomas, J.); id. at p. 318 (cone. opn. of Kennedy, J.).)
Justices O’Connor, Ginsburg, and Breyer joined Justice Kennedy’s concurring opinion.
Concurrence Opinion
I join the majority in holding polygraph evidence inadmissible. I disagree, however, with its conclusion upholding the constitutionality of the statutory provisions concerning battery on a custodial officer.
Two statutory provisions concerning battery on a custodial officer are at issue here: Penal Code section 243.1 makes battery on a custodial officer a felony, whether or not the battery caused injury to the custodial officer.
I
“ ‘The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.’ ” (Cooley v. Superior Court (2002)
As the majority observes (maj. opn., ante, at p. 838), under the federal and state equal protection clauses the constitutionality of the statutory scheme at issue turns on whether there is a rational basis for the distinction it draws between persons prosecuted under section 243.1 (battery on a custodial officer without injury) and section 243(c) (battery on a custodial officer with injury).
II
The relevant statutory provisions are these:
Section 243.1 declares that battery “committed against the person of a custodial officer” is a felony when the person committing the battery “knows
Section 243, subdivision (b), makes the same conduct a misdemeanor. It prescribes' misdemeanor punishment for a battery “committed against the person of a . . . custodial officer . . . engaged in the performance of his or her duties . . . and the person committing the offense knows or reasonably should know that the victim is a . . . custodial officer
Section 243(c) describes more egregious conduct. It requires a battery “committed against a custodial officer . . . engaged in the performance of his or her duties” when “the person committing the offense knows or reasonably should know that the victim is a . . . custodial officer . . . and an injury is inflicted on that victim.” (Italics added.) Violation of section 243(c) is punishable as either a felony or a misdemeanor, in the discretion of the trial court. (Such crimes are colloquially referred to as “wobblers.”)
Finally, section 243, subdivision (d), not directly relevant here, describes an even more serious crime; battery on a custodial officer resulting in serious bodily injury. Violation of this provision too can be punished as either a felony or a misdemeanor.
Traditionally, California’s sentencing laws have punished more harshly crimes that cause injury than similar crimes that do not. The statutory scheme at issue here, however, goes against this pattern. As the Court of Appeal majority observed, “[t]he current scheme encourages arbitrary, irrational charging.” In the case of a battery on a custodial officer that causes injury, there would be no incentive for the prosecutor to charge the defendant under section 243(c) (battery on a custodial officer with injury). By ignoring the injury and charging the defendant under section 243.1 (battery on a custodial officer without injury), the prosecutor is spared the burden of proving the injury and the trial court is precluded from treating the offense as a misdemeanor, an option that would be available to the court if the defendant had been charged with, and convicted of a violation of section 243(c) (battery on a custodial officer with injury).
I can perceive no rational basis for this rather startling statutory scheme. The majority does, however.
The majority first questions whether the offense defined in section 243.1 (battery on a custodial officer without injury) is actually less serious than the offense defined in section 243(c) (battery on a custodial officer with injury). It observes that if we compare two different batteries, it is possible that a particular battery without injury could be more heinous than another battery that did cause an injury. (See maj. opn., ante, at pp. 839-840.) By the same reasoning, however, a particular petty theft could, depending on the circumstances, be more serious than a particular grand theft, and a particular grand theft could be more serious than a particular robbery, and so forth. Under this reasoning, the legal classification of crimes as inherently “greater” or “lesser” becomes meaningless and a rational ordering of crimes and punishment in the penal law becomes impossible. In deciding which of two crimes is the
The majority also questions defendant’s claim that the statutory scheme allows a battery on a custodial officer without injury to be punished more severely than one with injury. The majority points out that the maximum punishment under both section 243.1 (battery on a custodial officer without injury) and section 243(c) (battery on a custodial officer with injury) is the same—three years. (See maj. opn., ante, at p. 839.) But the majority cites neither authority nor reason for the proposition that when comparing statutes for the purpose of equal protection analysis a court should examine only the maximum punishment and ignore everything else. Here the minimum punishment specified under section 243.1 (battery on a custodial officer without injury) is 16 months in state prison (§ 18) while the minimum punishment under section 243(c) (battery on a custodial officer with injury) is “a fine of not more than two thousand dollars ($2000) [or] imprisonment in a county jail not exceeding one year.” When, as here, the defendant’s crime could reasonably be treated as a misdemeanor, it is the minimum punishment that is more important.
The majority holds that section 243.1 (battery on a custodial officer without injury) does not violate the principle of equal protection of the laws because the Legislature could have rationally concluded that reduction of this offense to a misdemeanor is not appropriate whenever the prosecutor deems the offense serious enough for felony prosecution. (Maj. opn., ante, at p. 840.) This reasoning misses the point. Equal protection analysis requires comparing two statutes—here section 243.1 (battery on a custodial officer without injury) and section 243(c) (battery on a custodial officer with injury). The majority offers no rational basis for the distinction between them.
I perceive no rational basis for giving trial courts the power to punish as a misdemeanor a charge of battery on a custodial officer with injury, but to
The allegations of defendant’s petition for habeas corpus filed in conjunction with defendant’s appeal, if true,
If true, these facts show that the prosecutor did not consider defendant’s conduct so egregious as to require felony punishment. A prosecutor taking that view would not have been so eager to induce defendant to plead guilty to crimes punishable only as misdemeanors. But because defendant was charged
I would affirm the Court of Appeal.
Statutory citations are to the Penal Code, unless otherwise noted.
If two groups are not similarly situated, then any “equal protection claim cannot succeed, and does not require further analysis.” (People v. Nguyen, supra,
Although the prosecutor has no incentive to charge a defendant with battery on a custodial officer with injury (§ 243(c)), there would still be an incentive to charge a defendant with battery causing serious bodily injury (§ 243, subd. (d)) because that offense, although a wobbler, has a higher maximum penalty than of offense defined by section 243.1 (battery on a custodial officer without injury).
The majority mistakenly relies on United States v. Batchelder (1979)
The truth of these allegations may be determined at an evidentiary hearing ordered by the Court of Appeal on the habeas corpus petition defendant filed in conjunction with her appeal. At issue there is whether defense counsel failed to consult with defendant before rejecting the prosecution’s offers to dismiss the felony charge if defendant would plead guilty to either of two misdemeanors, battery or driving under the influence.