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Court of Appeal:
Threat to Judge Isn’t Interference With ‘Executive Officer’
JusticesRespond to Various Contrary Arguments by Office of California Attorney General
Bya MetNews Staff Writer
Div. Two of the Fourth District Court of Appeal district hasreversed the conviction of a man under Penal Code §69—which renders it a crimeto attempt “by means of any threat or violence, to deter or prevent anexecutive officer from performing any duty imposed upon the officer bylaw”—because the conviction was based on threats uttered to a federalmagistrate judge and three Riverside Superior Court judges.
“[A] judge is not an ‘executive officer’ within the meaningof section 69, as a matter of law,” Justice Frank J. Menetrez declared in hisopinion, filed Wednesday.
The San Bernardino County District Attorney’s Officenonetheless prosecuted Paul Howard Hupp under that statute. During the courseof the proceedings, San Bernardino Superior Court Judge Alexander R. Martinezexpressed doubt as to applicability of the statute, but allowed the prosecutionto continue, noting that there will be a “[m]onumental issue” of firstimpression “that will obliterate the case on appeal if the Court says judgesdon’t apply.”
The Office of Attorney General produced various inventivetheories on appeal as to why the conviction should stand.
Definition of ‘Executive’
Menetrez wrote:
“Depending on context, the ordinary meaning of the term‘executive officer’ is either an officer of the executive branch of governmentor a person occupying a leadership role in a business organization….Given thatsection 69 is located in title 5 of part 1 of the Penal Code, which isentitled, ‘Of Crimes By and Against the Executive Power of the State,’ thegovernmental meaning applies in this case.
“In the government context, ‘executive’ has a specific andwell-established meaning. As an adjective, it conveys that the noun itmodifies relates to or is part of the executive—that is, the branch ofgovernment responsible for enforcing laws….Moreover, our state constitutionrecognizes and has always recognized the separation of legislative, executive,and judicial powers….That separation was well understood when section 69 wasenacted in 1872 as part of the original Penal Code….Under the plain meaning ofthe term ‘executive’ in the government context, judges are not executiveofficers; they are judicial officers.”
Attorney General’sContentions
Addressing contentions of the Office of Attorney General,Menetrez agreed that §69 has been interpreted in cases to cover persons otherthan peace officers, but pointed out that such cases “provide no authority forthe proposition that the term extends to officers outside the executivebranch.”
He also acknowledged that the portion of the Penal Code inwhich §69 is located—Title 5—contains two provisions, §71 and §76, that doapply to judges, but rejected the reasoning that this means §69 necessarilydoes, also. Those two broad sections, had to go someplace, he said, and Title 5was a handy repository.
(Sec. 76 says that any person who “knowingly and willinglythreatens the life of, or threatens serious bodily harm to, any…judge…with thespecific intent that the statement is to be taken as a threat, and the apparentability 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 beingprosecuted under that statute because “based on the evidence we have” of vaguethreats to the judges, “it doesn’t quite reach the level of a 76”—and at a timewhen 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]hevarious provisions of this title, except Section 76, apply to administrativeand ministerial officers, in the same manner as if they were mentionedtherein,” and contended that this shows “that section 69 does not applyexclusively to executive officers despite its limited language, but is meant tobe broad and expansive in its reach.” Menetrez responded:
“But the People cite no authority for the proposition thatjudges are administrative or ministerial officers, which they clearly are not.”
The Attorney General’s Office also fashioned the argumentthat since prosecutors are regarded as quasi-judicial officers, entitled tojudicial immunity, “the same logic must be extended to…judges” for purpose ofincluding them under §69. Menetrez said that judicial immunity extends toprosecutors, who are members of the Executive Branch, because “becauseprosecutors often engage in the type of judicial activities that the immunitywas 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 innature.”
He added:
“Moreover, even if there were such a judicial duty, thePeople’s argument would still fail. The issue presented in this case is one ofstatutory interpretation, not whether public policy supports treating judges asexecutive officers for purposes of a common law doctrine.”
Standard Jury Instruction
The Attorney General’s Office argued on appeal, as theDistrict Attorney’s Office had a pre-trial hearing that §69 must Apply tojudges because CALCRIM No. 2651, the pattern jury instruction for §69prosecutions, defines an “executive officer” as “a government official who mayuse his or her own discretion in performing his or her job duties.”
Menetrez commented:
“The fact that CALCRIM No. 2651’s definition of ‘executiveofficer’ appears to be far broader than the plain meaning of the term does notmean that we should stretch our interpretation of the statute to fit theinstruction. Rather, it suggests that the instruction may need to be revisedto convey that the term is limited to the executive branch.”
Martinez sentenced Hupp to 10 years, but did so based both onthe four counts of violating §69 and also crimes of which he was found guiltyearlier in a separate trial. Wednesday’s opinion orders a remand for furtherproceedings.
The case is Peoplev. Hupp, 2023 S.O.S. 3957.
Separate Opinion
In a separate opinion, this one unpublished, Div. Two onWednesday decided the appeal from the convictions by a jury in the earliercase, tried in the courtroom of Riverside Superior Court Judge James B.Jennings. The offenses were criminal threats, attempted criminal threats, andmisdemeanor elder abuse.
Jennings employed the wrong standard, Menetrez wrote, indenying a motion to strike a 2013 strike. The sentence was vacated and a remandwas ordered for a new hearing on the motion.
Hupp’s other contentions were found to lack merit. One of thewas that he was forced to wear the same civilian apparel for five days afterJennings denied his motion to be supplied with “two (2) new 2XL polo shirts fortrial.”
Menetrez said:
“As the People correctly point out, Hupp’s claim isnot grounded in a constitutional right. Although criminal defendants areconstitutionally entitled to wear civilian clothing at trial, the right is nomore specific than that.In other words, there is no constitutional rightto clean civilian clothing or to a different outfit each day of trial. Huppcites no authority to the contrary.”
Wearing Leg Brace
Hupp also contested the denial of his motion to be relievedof a leg brace he had been compelled to wear under his pants. That denial wasbased on the fact that the Sheriff’s Department requires all criminaldefendants who are not shackled to be fitted with such an apparatus.
The justice said that Jennings abused his discretion “bydeferring to the sheriff’s policy” but concluded that the error is notreversible because there is no evidence that the brace was visible.
He added:
“Even if we give Hupp the benefit of the doubt and assumethat 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 jurorswould have inferred he was wearing a physical restraint rather than bandages orsome type of medical device.On this record, there is no evidence that thejury became aware that Hupp was physically restrained during trial.”
That case is Peoplev. Hupp, E078421.
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