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CALIFORNIA DAILY OPINION SERVICENinth Circuit Court of Appeals | California Supreme Court | California Court of Appeals

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Volume 32, Number 211 Full Case Listings updated daily at www.therecorder.com/cdos Tuesday, October 30, 2018

NINTH CIRCUIT COURT OF APPEALS

Alliance for the Wild Rockies v. U.S. Forest Service ID Environmental Law 10390Forest Service violated NFMA by redesignating lands in project area and redefining “old forest habitat” (Murguia, J.)

CALIFORNIA COURTS OF APPEAL

Bacilio v. City of Los Angeles C.A. 2nd Employment Litigation 10399Criminal investigation of police officers remained “pending” until district attorney issued notice of final decision not to prosecute (Hoffstadt, J.)

People v. Lopez C.A. 2nd Criminal Law 10403Defense counsel’s concession of defendant’s guilt mandated reversal (Collins, J.)

People v. Saelee C.A. 3rd Criminal Law 10408Opposition to Prop 64 petition for recall and resentencing must be supported by evidence (Murray, J.)

National Lawyers Guild v. City of Hayward C.A. 1st 10413Order modifying opinion

October 30, 2018 CALIFORNIA DAILY OPINION SERVICE SummARIES 10387

SUMMARIESCriminal LawDefense counsel’s concession of defendant’s guilt mandated reversal (Collins, J.)

People v. LopezC.A. 2nd; October 26, 2018; B282867

The Second Appellate District affirmed in part and re-versed in part a judgment. In the published portion of its opinion, the court held that defense counsel’s concession of defendant’s guilt as to a charge of felony hit and run man-dated reversal on that charge, but did not infect the jury’s verdict as to a related charge of second degree murder.

While driving under the influence, Lauro Lopez struck and killed a motorcyclist and then fled the scene. He was charged with second degree murder and felony hit and run. At Lopez’ jury trial, counsel expressly conceded, in both his opening and closing arguments, that Lopez was guilty of hit and run. He denied, however, that Lopez was guilty of mur-der. The jury found Lopez guilty on both counts.

On appeal, Lopez argued that defense counsel’s conces-sion deprived him of a fair trial as to both counts.

The court of appeal reversed in part, holding that Lopez’s conviction for felony hit and run had to be reversed. Defense counsel’s concession was tantamount to a guilty plea and ef-fectively extinguished Lopez’ right to trial on the hit and run charge. It was permissible only if based on a knowing and informed waiver by Lopez of his right to trial on that count. There was, however, no evidence in the record that Lopez was informed of counsel’s decision to concede guilt on the hit and run count or, crucially, of what rights he would be giving up as a result. Counsel’s tactical decision could not override Lopez’s constitutional right to trial and the protec-tions in place to ensure his knowing and voluntary waiver of those rights. The hit and run conviction thus had to be reversed. The court nonetheless rejected Lopez’ contention that defense counsel’s concession also infected his murder conviction. Counsel’s concession could be considered tanta-mount to a guilty plea only if it admitted all of the elements of the charged crime. It did not. Counsel’s concession as to the hit and run charge did not require an admission that Lopez caused the accident. Further, counsel argued to the jury that Lopez was not guilty of murder, did not possess the requi-site mental state of malice aforethought, and that his post-accident conduct was irrelevant to the malice inquiry. The jury was also properly instructed on the element of malice. The record thus did not support Lopez’s assertion that the jury could have based its murder verdict on his post-accident conduct alone.

Criminal LawOpposition to Prop 64 petition for recall and resentencing must be supported by evidence (Murray, J.)

People v. Saelee

C.A. 3rd; October 26, 2018; C084235The Second Appellate District reversed a judgment with

directions. The court held that opposition to a petition for recall and resentencing under Proposition 64 must be sup-ported by evidence.

In 2013, Okouava Saelee was charged with manufactur-ing hash oil, being a felon in possession of a firearm, and possessing marijuana for sale. It was also alleged that he had suffered a prior serious felony conviction for assault with a semi-automatic firearm. In September 2014, Saelee pleaded no contest to possessing marijuana for sale and admitted the prior serious felony conviction allegation. He was sen-tenced to a seven-year prison term. Saelee later petitioned to redesignate his offense as a misdemeanor under Health & Saf. Code §11361.8. The prosecution opposed, arguing that Saelee posed an unreasonable risk of danger to public safety.

The trial court summarily denied Saelee’s petition, find-ing he would pose an unreasonable risk of danger to public safety.

The court of appeal reversed, holding that the trial court erred in denying Saelee’s petition in the absence of any evi-dence to support the prosecution’s contention that he posed an unreasonable risk of danger to public safety. Review of a petition for recall and resentencing under Prop 64 is a two-step process. First, the trial court shall presume the petitioner satisfies the criteria in §11361.8(a) unless the party opposing the petition proves by clear and convincing evidence that the petitioner does not satisfy the criteria. If the petitioner satis-fies the criteria set forth in subdivision (a), the trial court must next determine, under §11361.8(b), if granting the petition would pose an unreasonable risk of danger to public safety. If it would not, then the trial court must grant the petition. The proper standard of proof for this second step is prepon-derance of the evidence. There must thus be at least some evidentiary support for the trial court’s determination under subdivision (b). Here, the People’s written opposition to Saelee’s petition contained factual assertions about Saelee’s criminal history, but included no evidence supporting those assertions. Instead, the opposition included only statements of fact and argument made by the prosecutor, and such state-ments are not evidence. Further, although the prosecution listed case numbers, it did not ask the court to take judicial notice of any court records related to those case numbers. The court accordingly remanded to the trial court to give the parties the opportunity to present evidence to support their respective positions on the question of whether Saelee poses an unreasonable risk of danger to the public.


Employment LitigationCriminal investigation of police officers remained “pending” until district attorney issued notice of final decision not to prosecute (Hoffstadt, J.)

Bacilio v. City of Los Angeles

C.A. 2nd; October 25, 2018; B279217The Second Appellate District affirmed a judgment. The

court held that a criminal investigation remained pending against police officers until the district attorney’s office is-sued notice of a final determination not to prosecute.

On August 4, 2011, a citizen reported that Los Angeles Police Department (LAPD) officer Nestor Escobar had sexu-ally assaulted her while responding to a call at her apartment. The LAPD initiated an investigation as to Escobar, his part-ner, Edgar Bacilio, and a third officer. Because the alleged misconduct potentially constituted a crime as to both Escobar (sexual battery) and Bacilio (aiding and abetting sexual bat-tery), the investigation was both administrative and criminal. On June 3, 2013, the LAPD forwarded the results of its in-ternal affairs investigation to the district attorney. On October 3, 2013, the district attorney’s office notified the LAPD of its decision not to pursue criminal charges against any of the three officers. On September 10, 2014, the LAPD served Bacilio with notice that it was seeking an official reprimand against him based on the underlying incident. In November 2014, the LAPD brought administrative charges against all three officers. As to Bacilio, the LAPD later sustained a sin-gle charge of failing to maintain an accurate daily field activi-ties report. That finding was upheld on appeal.

Bacilio filed a petition for a writ of administrative manda-mus challenging the administrative proceedings against him as untimely under Public Safety Officers Procedural Bill of Rights Act (POBRA), which requires, at Gov. Code §3304(d)(1), that a public agency investigating misconduct by a public safety officer complete its investigation and notify the officer of any proposed discipline within one year of discovering the misconduct. The trial court denied the petition, finding no POBRA violation.

The court of appeal affirmed, the September 2014 notifica-tion was timely. Under §3304(d)(2)(A), if an officer’s alleged misconduct “is also the subject of a criminal investigation or criminal prosecution,” the one-year period is tolled while the “criminal investigation or criminal prosecution is pending.” For purposes of this statute, a criminal investigation can be deemed no longer to be pending only when a final determina-tion is made both to close the criminal investigation and not to prosecute. Interim decisions short of a final determina-tion will not stop the tolling. Here, that determination was not made until October 2013, when the district attorney’s officially declined to prosecute the case against any of the three officers. That it had earlier advised the LAPD that it was “most likely…not going to file” charges, but was “still

actually working on the case,” did not compel a different out-come. Such comments were sufficiently tentative as to not a final decision not to prosecute.

Environmental LawForest Service violated NFMA by redesignating lands in project area and redefining “old forest habitat” (Murguia, J.)

Alliance for the Wild Rockies v. U.S. Forest Service9th Cir.; October 25, 2018; 16-35829

The court of appeals affirmed in part and reversed in part a district court judgment and remanded. The court held that the U.S. Forest Service violated the National Forest Manage-ment Act (NFMA) by changing the designation of certain lands within a proposed project area and by redefining “old forest habitat.”

Alliance for the Wild Rockies and others challenged the U.S. Forest Service’s 2014 approval of the Lost Creek-Boul-der Creek Landscape Restoration Project, which proposed landscape restoration activities on approximately 80,000 acres of the Payette National Forest. Alliance argued that the Forest Service violated NFMA by failing to adhere to the re-quirements of the 2003 Payette National Forest Land and Re-source Management Plan, which governs management deci-sions on all land within the Payette National Forest, including the Lost Creek Project. Specifically, Alliance claimed that the Forest Service acted inconsistently with the Payette Forest Plan, in a manner that would harm certain habitat within the forest, when it created a new definition for “old forest habi-tat” and designated certain land to be managed for landscape restoration, as opposed to commodity production. According to Alliance, although the Lost Creek Project espoused certain environmental benefits, the upshot of these decisions would be an increase in commercial logging and a decrease in habi-tat protected as “old forest.” Alliance also alleged violation of both the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA).

The district court granted summary judgment in favor of the Forest Service.

The court of appeals affirmed in part and reversed in part, holding that the Forest Service violated NFMA by redes-ignating commodity production lands in management area MA3 as restoration lands. The redesignation resulted in the loss of at least one fire standard. Because such standards are are binding limitations on Forest Service’s activity, the elimi-nation of this fire standard on the project’s newly-designated restoration lands constituted a clear violation of NFMA. The redesignation also resulted in the loss of Fire Guideline 0313, which details when prescribed fire may be used. The Forest


Service did not explain, or even attempt to explain, how the elimination of this guideline in the Lost Creek Project was consistent with the 2003 Plan. The lack of explanation was arbitrary and capricious. Finally, the redesignation rendered the project inconsistent with the desired vegetative condi-tions set forth in the 2003 Plan. The Forest Service’s deci-sion to adopt a new definition of “old forest habitat” for the project area was similarly arbitrary and capricious.

October 30, 2018 CALIFORNIA DAILY OPINION SERVICE NINth CIRCuIt COuRt OF APPEAL 10390

FULL TEXT OPINIONNinth Circuit Court of Appeals

Cite as 18 C.D.O.S. 10390

ALLIANCE FOR THE WILD ROCKIES; IDAHO SPORTING CONGRESS; NATIVE ECOSYSTEMS COUNCIL, Plaintiffs-Appellants, v. UNITED STATES FOREST SERVICE; THOMAS TIDWELL, Chief of the Forest Service; KEITH LANNOM, Forest Supervisor for Payette National Forest; NORA RASURE, Regional Forester for Region 4 for the U.S. Forest Service, Defendants-Appellees, andADAMS COUNTY, a political subdivision of the State of Idaho; PAYETTE FOREST COALITION, an unincorporated Idaho association, Intervenor-Defendants-Appellees.

No. 16-35829 United States Court of Appeals for the Ninth CircuitD.C. No. 1:15-cv-00193-EJLDistrict of Idaho, BoiseAppeal from the United States District Court for the District of Idaho Edward J. Lodge, District Judge, Presiding Argued and Submitted February 5, 2018 Seattle, Washington Filed October 25, 2018 Before: Milan D. Smith, Jr. and Mary H. Murguia, Circuit Judges, and Eduardo C. Robreno,*District Judge. Order; Opinion by Judge Murguia, Circuit Judge

* The Honorable Eduardo C. Robreno, United States District Judge for the Eastern District of Pennsylvania, sitting by designation.

COUNSELAlliance For The Wild Rockies; Idaho Sporting Congress;

Native Ecosystems CounciL, Plaintiffs-Appellants.United States Forest Service; Thomas Tidwell, Chief of

the Forest Service; Keith Lannom, Forest Supervisor for

Payette National Forest; Nora Rasure, Regional Forester for Region 4 for the U.S. Forest Service, Defendants-Appellees.

ORDER

The opinion filed August 13, 2018, and appearing at 899 F.3d 970, is hereby amended. An amended opinion is filed herewith.

The petitions for panel rehearing are DENIED (Doc. 58, 61). No further petitions for rehearing or rehearing en banc will be entertained in this case.

Appellant’s Emergency Motion for Injunction and Appel-lees’ Motion to file an oversized response are DENIED as moot (Docs. 65, 68).

The Clerk is DIRECTED to immediately issue the mandate.

OPINIONMURGUIA, Circuit Judge:

This case requires us to determine whether the Forest Service’s management direction for a particular section of Idaho’s Payette National Forest is consistent with the man-agement direction that governs the forest as a whole. In Sep-tember 2014, the United States Forest Service approved the Lost Creek-Boulder Creek Landscape Restoration Project (“Lost Creek Project” or “Project”), which proposed land-scape restoration activities on approximately 80,000 acres of the Payette National Forest. Following approval of the Proj-ect, Plaintiffs-Appellants the Alliance for the Wild Rockies, Idaho Sporting Congress, and Native Ecosystems Council (collectively, “Alliance”) filed suit in federal court, claiming Defendants-Appellees United States Forest Service, Thomas Tidwell, Keith Lannom, and Nora Rasure (collectively, “For-est Service”) violated the National Forest Management Act (“NFMA”) by failing to adhere to the requirements of the 2003 Payette National Forest Land and Resource Manage-ment Plan (“the Payette Forest Plan” or “the 2003 Plan”). The 2003 Plan governs management decisions on all land within the Payette National Forest, including the Lost Creek Project. Specifically, the Alliance claimed that the Forest Service acted inconsistently with the Payette Forest Plan, in a manner that would harm certain habitat within the forest, when it created a new definition for “old forest habitat” and designated certain land to be managed for landscape restora-tion, as opposed to commodity production. According to the Alliance, although the Lost Creek Project espoused certain environmental benefits, the upshot of these decisions would be an increase in commercial logging and a decrease in habi-tat protected as “old forest.” The Alliance also claimed the Forest Service violated the National Environmental Policy Act (“NEPA”) by improperly incorporating the analysis of—or “tiering to”—prior agency documents that did not un-dergo a full NEPA review. Finally, the Alliance claimed the Forest Service violated the Endangered Species Act (“ESA”)


by failing to reinitiate consultation with the United States Fish and Wildlife Service regarding the effects on critical habitat for the bull trout.

In its present appeal, the Alliance challenges the district court’s grant of summary judgment in favor of the For-est Service and Intervenor-Defendants- Appellees Adams County and the Payette Forest Coalition (collectively, “Ad-ams County”). We have jurisdiction under 28 U.S.C. § 1291. We affirm in part and reverse and remand in part.

I. STATUTORY & FACTUAL BACKGROUND

A. The NFMA The NFMA charges the Forest Service with the manage-

ment of national forest land, including planning for the pro-tection and use of the land and its natural resources. See 16 U.S.C. § 1600 et seq. Under NFMA, forest land man-agement occurs on two levels: (1) the forest level, and (2) the individual project level. Native Ecosystems Council v. Weldon, 697 F.3d 1043, 1056 (9th Cir. 2012). “On the for-est level, the Forest Service develops a Land and Resource Management Plan (forest plan), which consists of broad, long-term plans and objectives for the entire forest.” Id. The forest plan is then implemented at the project level. See id. Site-specific projects and activities must be consistent with an approved forest plan. 16 U.S.C. § 1604(i); 36 C.F.R. § 219.10(e)(1998)1; Native Ecosystems Council v. U.S. Forest Serv., 418 F.3d 953, 961 (9th Cir. 2005) (“It is well-settled that the Forest Service’s failure to comply with the provisions of a Forest Plan is a violation of NFMA.”); Idaho Sporting Cong., Inc. v. Rittenhouse, 305 F.3d 957, 962 (9th Cir. 2002) (“[A]ll management activities undertaken by the Forest Ser-vice must comply with the forest plan, which in turn must comply with the Forest Act . . . .”). A project is consistent if it conforms to the applicable “components” of the forest plan, including the standards, guidelines, and desired condi-tions that are set forth in the forest plan and that collectively establish the details of forest management. Consistency un-der agency regulations depends upon the component type. The Forest Service must strictly comply with a forest plan’s “standards,” which are considered binding limitations, but it may deviate from the forest plan’s “guidelines,” so long as the rationale for deviation is documented.

B. NEPA

“NEPA is a procedural statute that requires the federal government to carefully consider the impacts of and alter-natives to major environmental decisions.” Weldon, 697 F.3d at 1051. “The National Environmental Policy Act has twin

1. Our original opinion cited to 36 C.F.R. § 219.15. However, be-cause the Payette National Forest Plan was adopted pursuant to the 1982 regulations, the newer regulations, promulgated in 2012, are in-applicable. 36 C.F.R. § 219.17(c) (“None of the requirements of this part apply to projects or activities on units with plans developed or revised under a prior planning rule until the plan is revised under this part.”).

aims. First, it places upon [a federal] agency the obligation to consider every significant aspect of the environmental im-pact of a proposed action. Second, it ensures that the agency will inform the public that it has indeed considered environ-mental concerns in its decisionmaking process.” Kern v. U.S. Bureau of Land Mgmt., 284 F.3d 1062, 1066 (9th Cir. 2002) (alteration in original) (internal quotation marks and citation omitted). “NEPA requires agencies to take a ‘hard look’ at the environmental consequences of proposed agency actions before those actions are undertaken.” All. for the Wild Rock-ies v. Pena, 865 F.3d 1211, 1215 (9th Cir. 2017) (citation omitted).

C. The Payette National Forest

The Payette National Forest contains approximately 2,300,000 acres of national forest system lands in west cen-tral Idaho. The region is 87% forested and contains portions of the Salmon, Payette, and Weiser River systems and parts of the Salmon River Mountains. It is home to many species, including the threatened bull trout.

The Payette National Forest is managed in accordance with the 2003 Payette Forest Plan, pursuant to the NFMA. Emphasizing restoration and maintenance of vegetation and watershed conditions, the 2003 Plan divides the Payette Forest into 14 sections that are called “management areas” (“MA”). The land within each MA is assigned to various categories that determine how the land is managed. These categories are called Management Prescription Categories (“MPC”). The categories range from “Wilderness” (MPC 1.0) to “Concentrated Development” (MPC 8.0).

Relevant here, MPC 5.1 places an emphasis on landscape restoration in order to provide habitat diversity, reduced fire risk, and “sustainable resources for human use.” Timber har-vest may occur on MPC 5.1 land, as an outcome of main-taining resistance to fire, but timber yield is not the primary purpose. MPC 5.1 constitutes 193,000 acres of the Payette Forest under the Payette Forest Plan. In contrast, MPC 5.2 is forested land that has an emphasis on achieving sustainable resources for commodity outputs, such as timber production. MPC 5.2 constitutes 247,000 acres under the 2003 Plan.

In 2011, the Forest Service proposed amendments to the Payette Forest Plan. The proposed amendments, which were called the Wildlife Conservation Strategy (“WCS”), would prioritize activities that would help maintain or restore habi-tat for certain species of wildlife that the Forest Service de-termined were in greatest need of conservation. Relevant here, the WCS amendments proposed deleting MPC 5.2 (commodity production) in its entirety, and replacing it with MPC 5.1 (restoration).2 The WCS amendments also pro-

2. The switch to a restoration emphasis under MPC 5.1 reflected the Forest Service’s desire to improve habitat conditions for certain species, including the white-headed woodpecker, but, according to the Alliance, did not necessarily benefit other ESA-listed species. The switch to MPC 5.1 also resulted in increased land authorized for com-mercial and non-commercial logging.


posed changes to Appendix E of the 2003 Payette Forest Plan, to include a new criteria for defining “Old Forest Habi-tat,” a designation that refers to older habitat marked by large trees and which is particularly good habitat for wildlife. The Forest Service released a draft environmental impact state-ment (“WCS DEIS”) for the proposed amendments pursuant to NEPA. However, following the public comment period on the WCS DEIS, the Forest Service stopped the process, and the WCS amendments were never adopted, leaving the 2003 Payette Forest Plan fully in effect. According to the Alliance, the WCS amendments, including the switch from MPC 5.2 to MPC 5.1 and the new definition of “Old Forest Habitat,” were controversial policies that paved the way for logging more trees.

D. The Lost-Creek Project

In 2012, the Forest Service initiated the Lost Creek Proj-ect, which proposed landscape restoration activities on ap-proximately 80,000 acres of the Payette National Forest, in-cluding commercial and non-commercial logging, prescribed fires, road closures, and recreation improvements. The Proj-ect area spans three management areas, MA3 (Weiser River), MA4 (Rapid River), and MA5 (Middle Little Salmon River), and includes land designated for “restoration” (MPC 5.1) and “commercial production” (MPC 5.2) under the 2003 Plan. In the Project’s final environmental impact statement (“Project FEIS”) published in March 2014, the Forest Service states that the purpose of the Project is to move vegetation toward the Forest Plan’s “desired conditions,” which are those condi-tions deemed desirable to achieve the specific purpose for each MPC. The FEIS further states that the Project is “con-sistent with the science in the Forest’s [WCS DEIS],” which includes improving habitat for species of concern, maintain-ing and promoting large tree forest structure and forest resil-iency, and reducing the risk of undesirable wildland fire. The Project also aims to restore certain streams, with an emphasis on restoring habitat occupied by ESA-listed species, such as the bull trout.

In September 2014, the Forest Service entered the final record of decision (ROD) for the Lost Creek Project, se-lecting, from the five alternatives discussed in the FEIS, a modified version of Alternative B, which implemented rec-reation improvement, road management, watershed restora-tion, and vegetation management, including 22,100 acres of commercial logging and approximately 17,700 acres of non-commercial logging. In the ROD, the Forest Service also approved a “minimum road system” for the Project, decom-missioning approximately 68 miles of roads and designating 401 miles of roads for maintenance or improvement in the Project area.

In June 2015, the Alliance filed suit in the District of Ida-ho, alleging the Forest Service violated the NFMA, ESA, and NEPA and acted arbitrarily and capriciously under the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(A), when it finalized the Lost Creek Project. The Alliance

requested the district court enjoin implementation of the Project. On August 31, 2016, the district court granted sum-mary judgment for the Forest Service and Adams County, concluding that the Project was consistent with the 2003 Forest Plan and applicable law, and that the Forest Service had not acted arbitrarily or capriciously in approving the Project. Notably, the district court concluded that the Lost Creek Project was consistent with the 2003 Payette Forest Plan. The district court denied the Alliance’s cross-motion for summary judgment, and entered judgment in favor of the Forest Service. The Alliance timely appealed.

II. STANDARD OF REVIEW

The court reviews challenges to final agency action de-cided on summary judgment de novo. Turtle Island Restora-tion Network v. Nat’l Marine Fisheries Serv., 340 F.3d 969, 973 (9th Cir. 2003). Review is based on the administrative record. Camp v. Pitts, 411 U.S. 138, 142 (1973).

Agency decisions that allegedly violated NFMA and NEPA are reviewed under the APA. Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1238 (9th Cir. 2005). Under the APA, courts shall “hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). “The scope of review under the ‘arbitrary and capricious’ standard is narrow and a court is not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Nevertheless, the agency must “examine the relevant data and articulate a satisfactory explanation for its action.” Turtle Island Restoration Network v. U.S. Dep’t of Commerce, 878 F.3d 725, 732 (9th Cir. 2017) (internal quotation marks and citation omitted). We will strike down an agency action as arbitrary and capricious “if the agency has relied on fac-tors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, of-fered an explanation for its decision that runs counter to the evidence before the agency, or if the agency’s decision is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Id. at 732–33 (in-ternal quotation marks and citation omitted).

III. DISCUSSION

A. The Project’s Change from MPC 5.2 to MPC 5.1

The 2003 Payette Forest Plan sets forth a management directive for the Payette National Forest by establishing de-sired conditions for the forest, and then setting standards and guidelines designed to achieve or maintain those conditions. In sum, the desired conditions can be viewed as the long-term goals for the forest as a whole, and the Plan’s standards and guidelines set forth the manner in which the Forest Service is to achieve those goals. Any site-specific project must be consistent with the Forest Plan. See 16 U.S.C. § 1604(i).


Here, the Alliance argues that the Project is inconsistent with each of these three Forest Plan components—standards, guidelines, and desired conditions. Specifically, under the 2003 Plan, certain land is designated as MPC 5.1 (restora-tion) and certain land is designated as MPC 5.2 (commodity production). At issue in the present suit, the Lost Creek Proj-ect eliminates MPC 5.2 in its entirety and replaces it with MPC 5.1, which affects land in MA3. The Alliance argues that the final ROD for the Lost Creek Project is arbitrary and capricious because the standards, guidelines, and desired conditions that determine the forest conditions for MPC 5.1 are different from those for MPC 5.2. We agree. We address the Forest Plan’s standards, guidelines, and desired condi-tions in turn.

1. Standards “Standards” are binding limitations typically designed

to prevent degradation of current resource conditions. The switch from MPC 5.2 to MPC 5.1 resulted in the loss of at least one fire standard on MA3.

A site-specific project must comply with the standards set forth in the governing forest plan, and a project’s deviation from a standard requires amendment to the forest plan. Here, the switch from MPC 5.2 to MPC 5.1 would lead to the loss of Fire Standard 0312, which states that “[w]ildland fire use is prohibited.” MPC 5.2 contains a binding fire standard, whereas MPC 5.1 contains no fire standards at all. Because standards are binding limitations on Forest Service’s activity, the elimination of this fire standard on the Project’s newly- designated MPC 5.1 land constitutes a clear violation of the NFMA. See 16 U.S.C. § 1604(i); Native Ecosystems Coun-cil, 418 F.3d at 961.

Adams County urges this Court to overlook this incon-sistency on the ground that the fire proscriptions for MPC 5.1 and MPC 5.2 are “substantially similar,” in that only prescribed fire may be used under either category. We de-cline to speculate on the effects of prescribed fire on MA3, which is not discussed by the agency in support of its conclu-sion that the Lost Project is consistent with the Forest Plan. It is undisputed that MPC 5.1 establishes no fire standards for MA3. Rather, MPC 5.1 contains Fire Guideline 0309, which permits the “full range of treatment activities, except wildland fire use” on land within MA3. Though the Forest Service argues that the Project area will be more resilient to fire after the switch to MPC 5.1, it is not clear that Fire Guideline 0309 constitutes the complete, binding prohibi-tion on wildland fire contained in Fire Standard 0312. More-over, our scope of review does not include attempting to dis-cern whether the new standards are substantially similar. See Native Ecosystems Council, 418 F.3d at 961 (“Our scope of review does not include attempting to discern which, if any, of a validly-enacted Forest Plan’s requirements the agency thinks are relevant or meaningful. If the Forest Service thinks any provision of the 1986 HNF Plan is no longer relevant, the agency should propose amendments to the HNF Plan al-

tering its standards, in a process complying with NEPA and NFMA, rather than discount its importance in environmen-tal compliance documents.”). In any event, a guideline does not impose a mandatory constraint on project planning and activity in the way a standard does. See 36 C.F.R. § 219.7(e)(1)(iii)–(iv). Accordingly, we conclude that the switch from MPC 5.2 to MPC 5.1, which resulted in the loss of a binding standard under the existing Forest Plan, constitutes a viola-tion of the NFMA. See 16 U.S.C. § 1604(i) (“Resource plans and permits, contracts, and other instruments for the use and occupancy of National Forest System lands shall be consis-tent with the land management plans.”). The Forest Service’s failure to articulate a rational explanation for deviation from the Plan’s standard and from agency regulations that require consistency with the Plan was arbitrary and capricious. See Native Ecosystems Council, 418 F.3d at 964; see also Sierra Forest Legacy v. Sherman, 646 F.3d 1161, 1176 (9th Cir. 2011) (“Agency decisions that allegedly violate . . . NFMA are reviewed under the [APA], and may be set aside only if they are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” (quoting Or. Natural Res. Council Fund v. Goodman, 505 F.3d 884, 889 (9th Cir. 2007)).

2. Guidelines The Lost Creek Project similarly deviates from the 2003

Plan’s guidelines. “Guidelines” are a “preferred or advisable course of action” to help maintain or restore resource condi-tions or prevent resource degradation. According to the 2003 Plan, “[d]eviation from compliance [with guidelines] does not require a Forest Plan amendment . . ., but rational for deviation must be documented in the project decision docu-ment.” In MA3, the elimination of MPC 5.2 results in the loss of Fire Guideline 0313, which details when prescribed fire may be used. The Forest Service does not explain, or for that matter attempt to explain, how the elimination of this guide-line in the Lost Creek Project is consistent with the 2003 Plan, or how the Project as a whole is as effective as the 2003 Plan in achieving the purpose of the applicable guidelines, as is required by the Plan itself. Rather, the management di-rection for MA3 simply states that Fire Guideline 0313 will be deleted, without discussing any replacement provision. Moreover, the Forest Service’s explanation of “consistency” in the Project FEIS does not reconcile the loss of MPC 5.2’s guidelines, but contains only the bare statement that MPC 5.2 is “[o]utside the scope of the project.” The agency is re-quired to “articulate a satisfactory explanation for its action.” Turtle Island Restoration Network, 878 F.3d at 732 (quot-ing Motor Vehicle Mfrs. Ass’n of U.S., 463 U.S. at 43). Here, the agency’s explanation is, in effect, no explanation at all. Accordingly, we conclude that the elimination of the exist-ing guideline was contrary to the 2003 Plan in violation of the NFMA, see 16 U.S.C. § 1604(i); 36 C.F.R. § 219.10(e)(1998); Native Ecosystems Council, 418 F.3d at 961, and the Forest Service’s failure to articulate a satisfactory explana-


tion for the elimination of Fire Guideline 0313 was arbitrary and capricious.

3. Desired Conditions The switch from MPC 5.2 to MPC 5.1 similarly renders

the Project inconsistent with the desired vegetative condi-tions set forth in the Payette Forest Plan. Appendix A to the 2003 Plan sets forth desired vegetative conditions for the Payette Forest. It is undisputed that the desired vegeta-tive conditions for MPC 5.2 land differ from those of all other MPCs under the 2003 Plan, specifically with regards to tree size class and canopy distribution. Roughly stated, land within MPC 5.2 should have fewer large trees and a greater degree of canopy closure, whereas land outside MPC 5.2 should have a higher percentage of large trees and a lower percentage of canopy cover.3

The Forest Service and Adams County concede that the switch from MPC 5.2 to MPC 5.1 constitutes a departure from the desired conditions set forth in the 2003 Plan, but urge this Court to accept that desired conditions are “flex-ible” and may be altered in the short term. For the reasons discussed below, although we agree with Defendants that the Plan grants the Forest Service a certain degree of flexibility in the short term, we conclude that the Plan does not permit the Forest Service to abandon desired conditions in favor of different conditions entirely, without consideration of effects in the long term.

“Desired condition” is defined in the Payette Forest Plan as “a portrayal of the land, resource, or social and economic conditions that are expected in 50–100 years if management goals and objectives are achieved. A vision of the long-term conditions of the land.” The 2003 Plan contemplates that movement away from a desired condition in the short term may facilitate the achievement of the desired condition in the long term. The Plan’s Vegetation Guideline VEGU01 states:

During site/project-scale analysis, tradeoffs in the achievement of one or more of the vegetative compo-nents described in Appendix A may need to be consid-ered. Current conditions of the vegetation may necessi-tate the need to move one component away from the desired condition in order to move another one toward the desired condition. In these situations, decisions should be based not only on which vegetative compo-nent is important to emphasize at any point in time to

3. The Plan delineates the desired conditions for each “potential vegetation group” (PVG), both within MPC 5.2 and outside of MPC 5.2. For example, with regards to tree size, areas of “Dry Grand Fir” (PVG 5) outside MPC 5.2 should be composed of 3-4% grass, forb, shrub and seedling, and 66-84% large trees. In contrast, within MPC 5.2, the desired composition of tree size for PVG 5 is 4-7% grass, forb, shrub and seedling, and 33-65% large trees. Similarly, with regard to canopy distribution, there is a difference in the desired conditions on MPC 5.2 land versus non-MPC 5.2 land. For example, looking at areas of “Dry Grand Fir,” on MPC 5.2 land, 3-23% of the canopy should have “low closure,” whereas on non-MPC 5.2 land, 25-45% of the canopy should have low closure.

meet resource objectives, but also how to effectively move all components toward their desired condition over the long term.

Citing to this language, Adams County argues the Project’s switch from MPC 5.2 to MPC 5.1 is a short-term trade-off that will not preclude the Forest from moving closer to the MPC 5.2 desired conditions specified in the 2003 Plan. We disagree.

The 2003 Plan permits the Forest Service to deviate from the desired conditions in one vegetative component, if that deviation will help achieve those desired conditions in an-other vegetative component. VEGU01 does not authorize the elimination of the desired conditions for MPC 5.2 and their replacement with the desired conditions in MPC 5.1, as oc-curred here. Rather, VEGU01 instructs the Forest Service to manage the Plan’s vegetative components in a manner that moves all components toward their desired conditions in the long term. The Forest Service has not articulated how the switch from MPC 5.2 to MPC 5.1 moves all components toward their desired conditions over the long term, as it is required to do under the 2003 Plan and agency regulations. Rather, the Forest Service has simply replaced the existing desired conditions with new and different ones.

We reject Adams County’s contention that the switch to from MPC 5.2 to MPC 5.1 avoids any unlawful inconsisten-cies because desired conditions may still be achieved in the long term. Adams County relies on a “White Paper regard-ing MPC 5.1 vs 5.2 desired conditions,” authored by For-est Vegetation Specialist Paul Klasner, which states that the switch to MPC 5.1 does not preclude attainment of MPC 5.2 desired conditions because “[f]uture project decisions in the LCBC project area could still choose to move closer to the desired conditions for MPC 5.2 as this decision would not preclude the attainment of MPC 5.2 desired conditions.” Even assuming that Mr. Klasner’s white paper represents the official position of the agency, the abstract possibility that the Forest Service may someday revert back to the desired conditions set forth in the 2003 Forest Plan is not evidence that the present deviation will move the Forest closer toward existing desired conditions over the long term, as is required to show consistency with the 2003 Plan.4

In its remaining points, the Forest Service seeks to reas-sure us that MPC 5.1 is consistent with the 2003 Plan, by reference to portions of the Project FEIS and the Plan con-taining highly technical discussions of vegetation conditions. This is not a statement of consistency that the Court can reasonably be expected to review or that is entitled to defer-ence. See Friends of the Wild Swan v. Weber, 767 F.3d 936,

4. Under the APA, an agency may rely on the position stated in a white paper, but must still explain its decision sufficiently to de-termine compliance with applicable law. See Nat. Res. Def. Council, Inc. v. Pritzker, 828 F.3d 1125, 1140 (9th Cir. 2016). Adams County overlooks the fact that in the Project FEIS the Forest Service neither relies on Mr. Klasner’s white paper, nor explains how the new desired vegetative conditions comply with the Forest Plan.


947 (9th Cir. 2014) (“The Forest Service’s interpretation and implementation of its own forest plan is entitled to substan-tial deference, but we must be able to reasonably discern from the record that the Forest Service complied with the plan’s standards.” (internal quotation marks and citations omitted)); see also Nat. Res. Def. Council, 828 F.3d at 1132–33 (“[I]f the agency itself did not provide reasons to satisfy the above standard, we will not use our own line of reason-ing to bolster the agency decision on grounds that it did not include in its reasoning.”). Moreover, the Forest Service’s assurances on appeal are not reflected in the record, which shows clear deviations from the desired condition set forth in the 2003 Plan. See Native Ecosystems Council v. Tidwell, 599 F.3d 926, 936 (9th Cir. 2010) (“fuzzy assurance[s]” do not erase the specific inconsistencies identified in the re-cord). For these reasons, we conclude that the switch from MPC 5.2 to MPC 5.1, which resulted in the imposition of new desired vegetative conditions with the potential to alter the landscape, was inconsistent with the 2003 Plan. See 16 U.S.C. § 1604(i); 36 C.F.R. § 219.10(e) (1998).

B. The Project’s Definition of “Old Forest”

In its second NFMA claim, the Alliance contends that the Project’s definition for “old forest habitat” is inconsistent with the definition of “old forest” in the 2003 Forest Plan. Specifically, the Alliance contends that the Project uses the criteria for “old forest habitat” found in the WCS amend-ments, as opposed to the Plan.

Appendix A to the 2003 Forest Plan establishes the desired vegetative conditions for “old forest.” Unlike the switch from MPC 5.2 to MPC 5.1, which was limited to land in MA3, a change to the definition of “old forest” potentially affects vegetation conditions throughout the Lost Creek Project.

Here, again, the Lost Creek Project deviates from a stan-dard set forth in the Payette Forest Plan. In its discussion of old forest and old growth, the 2003 Plan sets forth a stan-dard that requires maintaining at least 20 percent of the acres within each forested PVG in the large tree size class.5 This standard is aimed at helping certain species that are depen-dent upon large trees. Where the large tree size class consti-tutes less than 20 percent of the total PVG acreage, manage-ment action shall not decreases the current area occupied by the large tree size class, except where, among other things, management actions would not degrade or retard attainment of desired vegetation conditions in the short or long-term.

The Project FEIS does not discuss this standard. It also adopts the definition of “old forest habitat” from the WCS DEIS, instead of the definitions of “old forest” and “old growth” from the 2003 Plan. On appeal the Forest Service assures the Court that there has been no change to the defini-tion of “old forest,” only newly-added quantitative criteria that “flesh out” the Plan’s existing definition of “old for-

5. The Lost Creek Project area contains all of the Plan’s eleven PVGs, except PVG 4.

est.” In spite of these assurances on appeal, the Project FEIS clearly states that “no stands have been identified in the proj-ect area that meet all attributes that characterize old forest habitat as defined in proposed [WCS amendments].” This is facially inconsistent with the Plan, which acknowledges his-toric presence of both large tree size class and old growth in virtually all of the PVGs, and mandates specific percentage of large tree size class on each PVG.

On this record we cannot say that the Forest Service “con-sidered the relevant factors and articulated a rational connec-tion between the facts found and the choice made.” Pyramid Lake Paiute Tribe of Indians v. U.S. Dept. of Navy, 898 F.2d 1410, 1414 (9th Cir. 1990) (citations omitted). The Forest Service’s decision to adopt a new definition of “old forest habitat” for the Project area is, accordingly, arbitrary and capricious.

C. The Project’s Minimum Road System Designation

The Alliance also challenges the Forest Service’s decision to designate a minimum road system (“MRS”) for the Lost Creek Project that exceeds the number of miles in the MRS recommended in the Forest Service’s Travel Analysis Re-port for the Project area. The Travel Management Rule sets forth rules for travel and transportation systems in national forests. Administration of the Forest Development Trans-portation System, 66 Fed. Reg. 3206 (Jan 12, 2001) (Subpart A codified at 36 C.F.R. §§ 212.1 to 212.21).6 Relevant here, the Forest Service must “identify the [MRS] needed for safe and efficient travel and for administration, utilization, and protection of National Forest System lands.” 36 C.F.R. § 212.5(b)(1).

The minimum system is the road system determined to be needed to meet resource and other management ob-jectives adopted in the relevant land and resource man-agement plan . . . , to meet applicable statutory and regu-latory requirements, to reflect long-term funding expec-tations, to ensure that the identified system minimizes adverse environmental impacts associated with road construction, reconstruction, decommissioning, and maintenance.

Id. The Forest Service must also designate roads for decom-missioning. Id. § 212.5(b)(2). Designation of the MRS and road decommissioning must be accomplished by completing a “science-based roads analysis at the appropriate scale,” and incorporating, to the degree practicable, the interests of af-fected citizens and state, local, and tribal governments. Id. § 212.5(b)(1). This process results in a “travel analysis report” for a given area, which sets forth a recommended MRS for

6. Subpart B of the Travel Management Rule, promulgated four years later, in 2005, is not at issue in the present case. See Travel Man-agement; Designated Routes and Areas for Motor Vehicle Use, 70 Fed. Reg. 68,264 (Nov. 9, 2005) (codified at 36 C.F.R. §§ 212.50–212.57).


a given area. Generally speaking, the analysis and recom-mendation provided in the travel analysis report will inform the agency’s analysis during the subsequent NEPA process for a particular site-specific project.

In connection with the Lost Creek Project, the Forest Ser-vice completed a travel analysis report (“the Report”), that identified 474 existing miles of roadway in the Project area. The Report makes a management recommendation for each road, which corresponds to desired conditions and activi-ties for the existing management areas under the 2003 Pay-ette Forest Plan. The Report’s recommended MRS reflects the roads that received recommendations in the Report for “maintain,” “maintain or improve,” or “improve.” Here, the Report recommends approximately 240 miles of roads for the MRS, 68 miles of roads for decommissioning, and 149 miles of roads for long-term closure or “LTC.”

In spite of the recommendation contained in the Report, the Project’s ROD adopts a MRS with 401 miles of roads. This is a reduction from the 474 miles of existing roads in the Project area, but an increase from the 240 miles of road recommended in the Report. We reject the Alliance’s con-tention that this rendered the Project’s MRS arbitrary and capricious.

In designating the MRS for the Project, the Forest Service satisfied the requirements of 36 C.F.R. § 212.5(b). First, the FEIS supports its decision by discussing the resource and management objectives adopted in the relevant land and resource management plan in relation to roads in a section devoted to “Transportation.” This section discusses the for-est-wide goals, objectives, and standards for roads under the existing Forest Plan. These include protecting resources, providing recreational experiences, and providing safety and welfare of users. Second, the FEIS addresses the “applicable regulatory requirements” in its discussion of the Travel Anal-ysis Process and 36 C.F.R. § 212.5. Here the Forest Service identifies the same key issue the Alliance complains of: the fact that the number of roads selected for the MRS and their maintenance level could affect sediment rates and long term watershed functionality. Third, contrary to the Alliance’s contention, this section also contains a robust discussion of maintenance costs for each alternative and accounts for “long-term funding expectations.” The discussion explains that funding derives from a variety of sources, and that future maintenance costs and environmental effects will be reduced through various activities, such as graveling soft spots and ri-parian areas. Finally, as discussed above, the environmental impacts associated with road construction, reconstruction, decommissioning and maintenance are discussed at length in the FEIS. Long-term effects, direct and indirect effects, and cumulative effects are similarly analyzed for all alternatives with regards to watershed conditions.

Though Alternative C, the Alliance’s preferred alterna-tive, provides the most benefits for watershed restoration, the FEIS concluded that Alternative C was financially inefficient and did not meet other management objectives under the

Forest Plan. The Forest Service concluded that Alternative C was less beneficial for tree size class, left portions of the area susceptible to insects and wildfire, and would restore fewer acres for certain ESA-listed species. The Alliance does not challenge any of these conclusions.

Because the Forest Service fully explained its decision in selecting Alternative B as the appropriate MRS for the Proj-ect and considered each of the factors listed under 36 C.F.R. § 212.5, we conclude that the Project’s MRS designation was not arbitrary or capricious.

D. Tiering

The Alliance contends that the Project FEIS violates NEPA by improperly incorporating—or “tiering to”—the WCS amendments. Ordinarily, an agency can avoid some of the burdens of the NEPA process by “tiering” to a prior docu-ment that has itself been the subject of NEPA review. “Tier-ing” is defined as “avoiding detailed discussion by referring to another document containing the required discussion,” Kern, 284 F.3d at 1073, and, under Council for Environmen-tal Quality (“CEQ”) regulations, it is expressly permitted:

Agencies are encouraged to tier their environmental im-pact statements to eliminate repetitive discussions of the same issues and to focus on the actual issues ripe for decision at each level of environmental review. When-ever a broad environmental impact statement has been prepared (such as a program or policy statement) and a subsequent statement or environmental assessment is then prepared on an action included within the entire program or policy (such as a site specific action) the subsequent statement or environmental assessment need only summarize the issues discussed in the broader statement and incorporate discussions from the broader statement by reference and shall concentrate on the is-sues specific to the subsequent action.

40 C.F.R. § 1502.20. CEQ regulations further state that “[t]iering is appropriate when the sequence of statements or analyses is . . . [f]rom a program, plan, or policy environmen-tal impact statement to a program, plan, or policy statement or analysis of lesser scope or to a site-specific statement or analysis.” 40 C.F.R. § 1508.28(a). The Ninth Circuit has further interpreted these regulations to only permit tiering to another environmental impact statement. League of Wil-derness Defs.-Blue Mountains Biodiversity Project v. U.S. Forest Serv., 549 F.3d 1211, 1219 (9th Cir. 2008) (collecting cases); see also Kern, 284 F.3d at 1073 (“However, tiering to a document that has not itself been subject to NEPA review is not permitted, for it circumvents the purpose of NEPA.”). This is because in order to comply with NEPA, the agency must “articulate, publicly and in detail, the reasons for and likely effects of those management decisions, and . . . al-low public comment on that articulation.” Kern, 284 F.3d at 1073.


Alternatively, where an agency merely incorporates mate-rial “by reference,” without impeding agency and public re-view of the action, the agency is not improperly tiering. See 40 C.F.R. § 1502.21 (“Agencies shall incorporate material into an environmental impact statement by reference when the effect will be to cut down on bulk without impeding agency and public review of the action.”); California ex rel. Imperial Cty. Air Pollution Control Dist. v. U.S. Dep’t of the Interior, 767 F.3d 781, 792–93 (9th Cir. 2014). Ultimately, when reviewing for NEPA compliance, we look to whether the agency performed the NEPA analysis on the subject ac-tion. See Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 809 (9th Cir. 1999).

The Alliance argues that the WCS amendments are policy decisions that have not undergone the full NEPA review, and are improperly relied upon in the Project FEIS to justify deviations from the policies set forth in the Payette Forest Plan. We note at the outset that because the WCS amend-ments themselves are an agency policy statement, not a NEPA document, tiering to this document would be cat-egorically improper under the CEQ regulations. League of Wilderness Defs.- Blue Mountains Biodiversity Project, 549 F.3d at 1219. Similarly, although the WCS DEIS is a NEPA document, adopting the scientific analysis in the WCS DEIS would be improper because that document did not undergo public comment and was therefore not subject to the full NEPA review. See Kern, 284 F.3d at 1073.

Nevertheless, we do not find that the Forest Service’s reli-ance on the WCS DEIS improper. The Alliance identifies two aspects of the Project FEIS that it contends constitute improper tiering. First, in its analysis of desired conditions, the Project EIS “incorporates the science and updated data from the draft [WCS DEIS],” which is “new and/or different science, or interpretation of science than the Forest Plan.” The FEIS also “utilizes desired conditions for MPC 5.1 . . . in lieu of those for MPC 5.2, when differences exist.” Second, the Project’s analysis of wildlife species and their habitats “was completed using the best available science used in the WCS DEIS.” This included adopting the “fundamental con-cept of the WCS DEIS,” that species have a greater likeli-hood of sustainability in habitats that are within the “historic range of variability.” The Project applies the habitat group-ings employed in Appendix E of the WCS in its analysis of effects of the Project on wildlife. However, notably, the Al-liance does not point to any part of the Project FEIS that adopts or incorporates NEPA analysis from the WCS DEIS.

In Kern, we held that the EIS for the Coos Bay Resource Management Plan was inadequate because it illegally tiered to an agency guideline document for managing the Port Or-ford cedar. 284 F.3d at 1073–74. The EIS determined that all management of the cedar would be within the ranges set in the guideline document. Id. at 1074. In rejecting this as improper tiering, the court noted that the EIS thereafter did not provide any analysis of those guideline ranges. Id. Because the guidelines themselves were not a document

subject to NEPA, the BLM had effectively evaded NEPA review. See id. at 1069, 1074. Similarly, in Muckleshoot In-dian Tribe, we concluded that the EIS for a land exchange on Huckleberry Mountain improperly tiered to the EIS for the applicable land and resources management plan. 177 F.3d at 810–11. As in Kern, we found that neither the exchange EIS nor the plan EIS fully analyzed the cumulative impacts of the increased logging on parcels that would be transferred under the exchange, meaning that “the cumulative impacts of land exchanges would escape environmental review.” Id. Finally, in Native Ecosystems Council & Alliance for the Wild Rock-ies v. United States Forest Service ex. Rel Davey, cited by the Alliance here, the District of Idaho found that the Forest Service’s reliance on a landscape “analysis map” of lynx habitat in an environmental assessment (EA) for a commer-cial thinning project in the Caribou-Targhee National Forest constituted improper tiering. 866 F. Supp. 2d 1209, 1227–28 (D. Idaho 2012). There, like in Kern and Muckleshoot Indian Tribe, the map had not been subject to any NEPA analysis whatsoever, and the EA similarly did not discuss what effects the removal of the landscape analysis units would have on the lynx, its habitat, and the habitat of the snowshoe hare. Id.

In contrast, in California ex rel. Imperial County Air Pollution Control District, we looked at an EIS regarding the transfer of water rights agreements and concluded that no improper tiering had occurred. 767 F.3d 781. There, the plaintiffs “fail[ed] to identify relevant material discussed solely in the Transfer [environmental impact report (“EIS”)] or significant information excluded from the Transfer EIS.” Id. at 793. Because the necessary analysis was in the EIS, we concluded that the agency had merely incorporated the environmental report by reference, which was not precluded by NEPA. Id. at 793–94.

Unlike Kern and Muckleshoot Indian Tribe, this case does not involve an EIS that lacks the required NEPA analysis. Rather, the portions of the Project FEIS identified by the Alliance show that Forest Service relied on data and science prepared for the WCS DEIS. This might be considered im-proper tiering, but for the fact that the Project FEIS goes on to analyze the desired conditions for MPC 5.1 and the wildlife habitat categories from the WCS amendments in the context of the present project, including analyzing the cumu-lative, direct and indirect effects on vegetative resources and wildlife. The Alliance has not identified any required analy-sis that was not performed in the Project FEIS. To the extent the Alliance challenges the adoption of WCS standards in lieu of the Payette Forest Plan’s standards, this might give rise to a separate NFMA claim, but it does not, in and of itself, constitute improper tiering under NEPA, as we have previously understood and applied that term. See 40 C.F.R. § 1502.20. We accordingly reject the Alliance’s contention that the Forest Service violated NEPA by incorporating the standards and science underlying the WCS amendments.


IV. THE ALLIANCE’S ESA CLAIM

The Alliance challenges the Forest Service’s failure to re-initiate consultation with the United States Fish and Wild-life Service for the endangered bull trout under Section 7 of the ESA. The parties now agree that in light of the Forest Service’s decision to reinitiate consultation for the bull trout over its entire range, including the Payette National For-est, that claim is moot. We agree and will grant the Forest Service’s motion to dismiss the ESA claim. The portion of the district court’s decision addressing the Alliance’s ESA claim is vacated pursuant to United States v. Munsingwear, 340 U.S. 36, 39 (1950). See NASD Dispute Resolution, Inc. v. Judicial Council of Cal., 488 F.3d 1065, 1068 (9th Cir. 2007) (“Under the ‘Munsingwear rule,’ vacatur is generally ‘automatic’ in the Ninth Circuit when a case becomes moot on appeal.” (quoting Publ. Util. Comm’n v. FERC, 100 F.3d 1451, 1461 (9th Cir. 1996)). Here, mootness was not caused by the Alliance in an attempt to evade an adverse decision. We see no reason not to vacate the lower court’s decision on this claim. See id. at 1069.

V. VACATUR

Having determined that the Forest Service violated the NFMA, we must determine the appropriate relief. Although not without exception, vacatur of an unlawful agency action normally accompanies a remand. Alsea Valley All. v. Dep’t of Commerce, 358 F.3d 1181, 1185 (9th Cir. 2004). This is because “[o]rdinarily when a regulation is not promulgated in compliance with the APA, the regulation is invalid.” Idaho Farm Bureau Fed’n v. Babbitt, 58 F.3d 1392, 1405 (9th Cir. 1995). When equity demands, however, the regulation can be left in place while the agency reconsiders or replaces the action, or to give the agency time to follow the neces-sary procedures. See Humane Soc. of U.S. v. Locke, 626 F.3d 1040, 1053 n.7 (9th Cir. 2010); Idaho Farm Bureau Fed’n, 58 F.3d at 1405. A federal court “is not required to set aside every unlawful agency action,” and the “decision to grant or deny injunctive or declaratory relief under APA is controlled by principles of equity.” Nat’l Wildlife Fed’n v. Espy, 45 F.3d 1337, 1343 (9th Cir. 1995) (citations omitted).

Here, absent vacatur, the Project will result in the manage-ment of certain land for restoration, instead of commodity production, and lead to the imposition of a new definition of “old forest habitat.” These changes will result in the loss of several binding standards under the existing forest plan. This is sufficient to justify vacatur. See Idaho Sporting Cong., Inc., 305 F.3d at 966 (“If the Forest Plan’s standard is in-valid, or is not being met, then the timber sales that depend upon it to comply with the Forest Act are not in accordance with law and must be set aside.” (citation omitted)). We fur-ther note that under the Project FEIS, commercial thinning is authorized on a large portion of the Project area. Adams County has not addressed any of these potential environmen-tal harms, such as the unexplained absence of “old forest habitat” on the Project area, and therefore has not overcome

the presumption of vacatur. See Alsea Valley All., 358 F.3d at 1185; see also Pollinator Stewardship Council v. U.S. E.P.A., 806 F.3d 520, 532 (9th Cir. 2015) (finding vaca-tur appropriate when leaving in place an agency action risks more environmental harm than vacating it).

VI. CONCLUSION

We affirm the district court’s ruling that defendants did not act arbitrarily and capriciously in approving the Minimum Road System. We also affirm the district court’s conclusion that the Forest Service did not violate NEPA by improperly tiering to the WCS amendments or the WCS DEIS. We re-verse the district court’s conclusions that the Forest Service did not violate the NFMA in approving the Project’s switch from MPC 5.2 to MPC 5.1 and the new definition of “old forest habitat.” Because the ESA claim is moot, we vacate the district court’s decision and judgment with regards to that claim only.

AFFIRMED IN PART, REVERSED and REMAND-ED IN PART. The parties shall bear their own costs on ap-peal. On remand the district court is instructed to vacate the Forest Service’s September 2014 final record of decision and remand to the Forest Service for further proceedings consis-tent with this Opinion.

Defendants-Appellees’ Motion to Dismiss is GRANT-ED. (Doc. 50.) The

Alliance’s ESA claim is DISMISSED as moot. The por-tion of the district court’s decision and judgment with regards to the Alliance’s ESA claim is VACATED.

October 30, 2018 CALIFORNIA DAILY OPINION SERVICE CALIFORNIA COuRtS OF APPEAL 10399

investigation and discipline in this case was timely. We ac-cordingly affirm.

FACTS AND PROCEDURAL BACKGROUND

I. FACTS

A. Underlying incident

Plaintiff Edgar Bacilio (Bacilio) is a police officer with the Los Angeles Police Department (LAPD). On March 30, 2011, Bacilio was on patrol with his partner, Nestor Escobar (Escobar). Early in their shift, the officers responded to a family dispute call, arrested the husband, and placed the child with the wife. Later in their shift, they drove to the wife’s apartment to conduct a welfare check on the child.

Bacilio was the officer in charge of accurately document-ing the officers’ activities during their shift. In the Daily Field Activities Report (or DFAR, for short), Bacilio reported that he and Escobar had spent 115 minutes at the wife’s apart-ment. However, the Incident Recall Sheet and Unit History Log, which also track officers’ activities during their shifts, reflected that the two officers had been at the apartment for 12 minutes and 86 minutes, respectively.

B. Report of misconduct

On August 4, 2011, the wife filed a report alleging that Es-cobar had spent 90 minutes in her apartment and, while there, had kissed her, touched her breasts and vaginal area over her clothes, and propositioned her for sex. The wife later picked Escobar out of a photo spread, indicating that she was 60 to 70 percent sure he was the one who sexually assaulted her.

C. Internal affairs investigation

The LAPD’s Internal Affairs Division immediately began to investigate the wife’s claim of misconduct as to Escobar, Bacilio, and a third officer. Because the alleged misconduct could constitute a crime as to both Escobar (namely, sexual battery) and Bacilio (namely, aiding and abetting sexual bat-tery), the investigation was both administrative and criminal.

D. Presentation to, and rejection by, the District Attorney’ s Office

On June 3, 2013, the lead internal affairs investigator presented the results of the LAPD’s Internal Affairs inves-tigation to the Los Angeles County District Attorney’s Of-fice. The lead investigator sought prosecution of Escobar for felony sexual battery under color of authority.

On August 6, 2013, a deputy district attorney interviewed the wife, using the lead internal affairs investigator as a translator.

Immediately after the interview, the deputy district attor-ney made statements to the lead internal affairs investigator regarding future prosecution. According to the investigator’s written notes from their post-interview discussion, the pros-ecutor said “she was not going to file against the officers” and

California Courts of Appeal


EDGAR BACILIO, Plaintiff and Appellant,v.CITY OF LOS ANGELES et al., Defendants and Respondents.

No. B279217In The Court of Appeal of the State of CaliforniaSecond Appellate DistrictDivision Two(Los Angeles County Super. Ct. No. BS156216)APPEAL from a judgment of the Superior Court of Los Angeles County. Mary H. Strobel, Judge. Affirmed.Filed October 25, 2018

COUNSEL

Rains Lucia Stern St. Phalle & Silver, Jacob A. Kalinski, Christopher D. Nissen, and Gidian R. Mellk for Plaintiff and Appellant.

Michael N. Feuer, City Attorney, Blithe S. Bock, Assistant City Attorney, and Shaun Dabby Jacobs, Deputy City Attorney, for Defendants and Respondents.

OPINION

The Public Safety Officers Procedural Bill of Rights Act (POBRA), Government Code section 3300 et seq.,1 requires public agencies investigating misconduct by a public safety officer to complete their investigation and notify the officer of any proposed discipline within one year of discovering the misconduct. (§ 3304, subd. (d)(1).) If the possible mis-conduct “is also the subject of a criminal investigation or criminal prosecution,” the one-year period is tolled while the “criminal investigation or criminal prosecution is pending.” (§ 3304, subd. (d)(2)(A).) This appeal presents the question: When is a criminal investigation no longer “pending”? In other words, when does this tolling period end for a crimi-nal investigation? We hold that a criminal investigation is no longer pending—and section 3304, subdivision (d)(2)(A)’s tolling period ends—when a final determination is made not to prosecute all of the public safety officers implicated in the misconduct at issue. Applying this definition, we con-clude that the tolling period did not end until the Los Angeles County District Attorney officially rejected prosecution of all three officers investigated in this case. Consequently, the

1. All further statutory references are to the Government Code unless otherwise indicated.


that “it was okay . . . to do the admin[istrative] interviews” of Bacilio and the third LAPD officer “since she is not filing charges against them.” In his later testimony about the post-interview discussion, the investigator stated that the prosecu-tor had not “officially rejected” the case for prosecution; that she had said “she most likely was not going to file . . . against the officers” but “was still actually working on the case”; and that it was okay to interview Bacilio and the third LAPD officer because they “were not” “criminally involved,” such that interviewing them “would not interfere with [the pros-ecutor’s] case.”

On October 3, 2013, the district attorney’s office sent In-ternal Affairs a Charge Evaluation Worksheet officially de-clining to file charges against Escobar, Bacilio, and the third LAPD officer. The Worksheet was signed by the prosecutor as well as a “reviewing deputy.” The Worksheet explained that there was insufficient evidence to prove either felony or misdemeanor sexual battery, and that the statute of limita-tions on any misdemeanor charge had expired.

E. Administrative discipline

On September 10, 2014, the LAPD served Bacilio with notice that Internal Affairs was seeking an official reprimand against him based on the underlying incident.2

A few months later, in November 2014, the LAPD brought 11 administrative charges against Escobar, Bacilio, and the third LAPD officer. The LAPD alleged two counts of mis-conduct against Bacilio: (1) “fail[ing] to maintain an accurate daily field activities report (DFAR)” during his March 30, 2011 shift, and (2) making “misleading statements” during his two interviews with Internal Affairs on September 27, 2013, and February 17, 2014.

The LAPD sustained the first charge against Bacilio but found the second charge “Not Resolved.”

Bacilio appealed the LAPD’s ruling to a hearing officer. Following an evidentiary hearing at which Bacilio and the lead internal affairs investigator both testified, the hearing officer issued a written ruling. The hearing officer found that the LAPD had initiated administrative disciplinary proceed-ings against Bacilio in a timely manner because POBRA’s one-year limitations period was tolled from the time of the wife’s initial report of potentially criminal misconduct “until [Bacilio’s] criminal case was officially rejected by the D.A. on October 3, 2013.” On the merits, the hearing officer sus-tained the first charge, but changed the “Not Resolved” find-ing on the second charge to “Unfounded.”

The LAPD’s then-Chief of Police, Charles Beck (Chief Beck), agreed with the hearing officer’s resolution of the

2. Bacilio was served with a so-called “Skelly notice.” Based on evidence that a Skelly notice is sufficient to satisfy POBRA for penal-ties up to (but not exceeding) an official reprimand, the hearing officer concluded that the Skelly notice functioned as the “Letter of Intent or Notice of Adverse Action” required by section 3304, subdivision (d)(1). Because the parties do not challenge this ruling on appeal, we also accept that Bacilio received POBRA-approved notice on September 10, 2014.

first charge, but changed the second charge back to “Not Resolved.”

II. PROCEDURAL BACKGROUND

Bacilio filed a petition for a writ of administrative man-damus against defendants the City of Los Angeles (the City) and Chief Beck3 seeking (1) declaratory and injunctive relief vacating all adverse disciplinary findings, and (2) a $25,000 penalty for the LAPD’s malicious violation of POBRA.

Following full briefing and a hearing, the trial court issued a 23-page minute order denying the petition in part and grant-ing it in part. The court ruled that the LAPD’s administrative proceedings against Bacilio were timely under POBRA. Spe-cifically, the court ruled that the “statutory tolling period” for criminal investigations did not end until “the DA . . . formally close[d] its criminal file” on October 3, 2013. The court noted “[t]here are good policy reasons” to continue tolling until “a formal notice from the DA” declining prosecution—chiefly, that “informal discussions could be misinterpreted.” On the merits, the court found that the “weight of the evidence” (1) supported Chief Beck’s finding as to the first charge for fail-ing to maintain an accurate DFAR, but (2) did not support his finding that the second charge for making misstatements during interviews was “Not Resolved.” At the request of the parties, the court simply amended the finding on the second charge to “Unfounded” rather than remanding for further proceedings.

After judgment was entered, Bacilio filed a timely notice of appeal.

DISCUSSION

Bacilio argues that the trial court erred in denying his pe-tition for a writ of administrative mandamus as to all dis-ciplinary charges because the LAPD did not notify him of the potential discipline within POBRA’s one-year limitations period. More specifically, Bacilio contends the tolling period under the exception for criminal investigations ended when the prosecutor orally told the internal affairs investigator that “she was not going to file against the officers” rather than when the district attorney’s office formally rejected prosecu-tion a few months later.

The issue Bacilio presents in this appeal entails two sub-sidiary questions: (1) What is the standard for determining when the tolling period for criminal investigations ends un-der section 3304, subdivision (d)(2)(A); and (2) did the trial court properly determine that the standard was not satisfied in this case until the formal rejection of prosecution? The first question is a question of statutory interpretation subject to our independent review. (Department of Corrections &

3. While this appeal was pending, Michel Moore succeeded Chief Beck as LAPD’s Chief of Police. Because Chief Beck was named as a defendant in this case in his official capacity, Chief Moore is now sub-stituted as a defendant in this appeal (see Weadon v. Shahen (1942) 50 Cal.App.2d 254, 259-260); but our opinion continues to refer to Chief Beck when discussing his actions while he was still Chief.


Rehabilitation v. State Personnel Bd. (2016) 247 Cal.App.4th 700, 707 (Department of Corrections).) In answering the sec-ond question, we review the court’s findings for substantial evidence because the trial court has already exercised its independent judgment upon the evidence in recognition of the public employee’s fundamental vested right in his em-ployment. (Jackson v. City of Los Angeles (2003) 111 Cal.App.4th 899, 902 (Jackson).) Our task here is to review the trial court’s ruling, not its reasoning. (People v. Chism (2014) 58 Cal.4th 1266, 1295, fn. 12.)

I. WHEN DOES TOLLING END FOR CRIMINAL INVESTIGATIONS

UNDER SECTION 3304, SUBDIVISION (D)(2)(A)?

POBRA is designed to “maintain[] stable employer-em-ployee relations between public safety employees and their employers” (Jackson, supra, 111 Cal.App.4th at p. 909), which is important because “‘[e]ffective law enforcement de-pends’” upon such stability (Richardson v. City and County of San Francisco Police Com. (2013) 214 Cal.App.4th 671, 691 (Richardson)). (See generally § 3301.) POBRA achieves this goal by codifying “a list of basic rights and protections which must be afforded all peace officers . . . by the pub-lic entities that employ them.” (Baggett v. Gates (1982) 32 Cal.3d 128, 135.)

Among the basic rights POBRA confers is the right to a speedy investigation. POBRA secures this right by requiring a public agency, within one year, to (1) complete its investi-gation of any “act, omission, or other allegation of miscon-duct” by a public safety officer, and (2) notify the affected of-ficer of the agency’s “proposed discipline.” (§ 3304, subd. (d)(1);4 Squire v. County of Los Angeles (2018) 22 Cal.App.5th 16, 23.) The “one-year limitation period” begins to tick once a “person authorized to initiate an investigation” “discovers, or through the use of reasonable diligence should have dis-covered” the act, omission, or other allegation of misconduct. (§ 3304, subd. (d)(1); Pedro v. City of Los Angeles (2014) 229 Cal.App.4th 87, 106.) This one-year limitations period “ensure[s] that an officer will not be faced with the uncertain-ty of a lingering investigation” (Mays v. City of Los Angeles (2008) 43 Cal.4th 313, 322, superseded on other grounds by § 3304, subd. (d)) and, on a more practical level, “promotes the . . . officer’s interest in receiving fair treatment by requir-ing the diligent prosecution of known claims so that police

4. In pertinent part, the provision provides: “[N]o punitive action, nor denial of promotion on grounds other than merit, shall be under-taken for any act, omission, or other allegation of misconduct if the investigation of the allegation is not completed within one year of the public agency’s discovery by a person authorized to initiate an inves-tigation of the allegation of an act, omission, or other misconduct. . . . In the event that the public agency determines that discipline may be taken, it shall complete its investigation and notify the public safety officer of its proposed discipline by a Letter of Intent or Notice of Ad-verse Action articulating the discipline that year, except as provided in paragraph (2). The public agency shall not be required to impose the discipline within that one-year period.” (§ 3304, subd. (d)(1).)

officers receive prompt notice of claims against them, can prepare a fair defense on the merits, and can marshal the facts while memories and evidence are fresh” (Jackson, supra, 111 Cal.App.4th at p. 909).

POBRA specifies a number of situations in which this one-year limitations period is inapplicable, is tolled, or is extended. (§ 3304, subd. (d)(2)(A)-(H).) At issue here is the following exception: “If the act, omission, or other allegation of misconduct is also the subject of a criminal investigation or criminal prosecution, the time during which the criminal investigation or criminal prosecution is pending shall toll the one-year time period.” (Id., subd. (d)(2)(A).) This excep-tion makes tolling mandatory for the “entire duration” of the pending criminal investigation or prosecution. (Daugherty v. City and County of San Francisco (2018) 24 Cal.App.5th 928, 958-959 (Daugherty); Department of Corrections, su-pra, 247 Cal.App.4th at p. 715; Lucio v. City of Los Ange-les (2008) 169 Cal.App.4th 793, 802 (Lucio).) Because the exception focuses on whether “the act, omission, or other allegation of misconduct” is “the subject” of investigation or prosecution, tolling continues even as to officers who are cleared of any misconduct as long as the act, omission, or other allegation is still being investigated or prosecuted as to some officer. (Parra v. City and County of San Francisco (2006) 144 Cal.App.4th 977, 994.) The reason for this toll-ing exception is straightforward: Criminal investigations are more nuanced, more complex, and more time consuming, and should not be placed on the same “fast track” as purely administrative investigations. (Daugherty, at pp. 958-959; Lucio, at p. 800.)

So at what point is a criminal investigation no longer “pending” within the meaning of section 3304, subdivision (d)(2)(A)?

As with any question turning on statutory interpretation, we start with the text of the statute. (Apple Inc. v. Superior Court (2013) 56 Cal.4th 128, 135.) Where, as here, the text of the statute does not speak to the question, we turn next to “‘other aids, such as the statute’s purpose, legislative history, and public policy.’” (Ardon v. City of Los Angeles (2016) 62 Cal.4th 1176, 1184, quoting Coalition of Concerned Com-munities, Inc. v. City of Los Angeles (2004) 34 Cal.4th 733, 737.)

These aids all point to one conclusion in this case: A crim-inal investigation is no longer pending when a final determi-nation not to prosecute and to close the criminal investigation is made. Interim decisions short of a final determination will not stop the tolling.

We reach this conclusion for three reasons.First, tying the conclusion of tolling to the final determina-

tion not to prosecute best harmonizes POBRA’s underlying purposes. The tolling exception for criminal investigations seeks to balance two competing interests: The public safety officer’s POBRA-based right to a speedy investigation and adjudication (Breslin v. City and County of San Francisco (2007) 146 Cal.App.4th 1064, 1075 (Breslin)), and the pub-


lic agency’s or prosecuting entity’s right to conduct a ful-some criminal investigation on an efficient, but not unduly cramped, timetable. Requiring that the determination not to prosecute be final, rather than interim, ensures that investi-gations are not prematurely placed back on POBRA’s fast track while at the same time ensuring that an officer’s right to speedy adjudication becomes paramount once a final de-termination is made.

Second, tying the conclusion of tolling to the final deter-mination provides the most workable standard, particularly in light of the alternatives. (Accord, City of Santa Monica v. Gonzalez (2008) 43 Cal.4th 905, 919 [“we may reason-ably infer that [our Legislature] intended an interpretation producing practical and workable results”].) Treating an in-terim decision not to prosecute as definite ignores the practi-cal realities of criminal investigations. Such investigations rarely involve a steady and continuous acquisition of infor-mation, and instead proceed by way of fits and starts as lines of inquiry stagnate, only to come alive again as new infor-mation is uncovered. (See Daugherty, supra, 24 Cal.App.5th at p. 963 [noting “the ebb and flow of activity in a criminal case”].) Decisions short of a final determination are necessar-ily in flux; they should not be given determinative effect. For similar reasons, we reject a standard that would peg the end of tolling to whether the criminal investigation was “active.” We agree with Richardson, supra, 214 Cal.App.4th at pages 697-698 that such a standard “‘would simply be unworkable” “because it leaves unanswered the central question of how much an investigator must do, and how frequently, to main-tain an “active” investigation.’” Conversely, a standard that insists upon a formal notification that a criminal investigation has terminated goes too far in the other direction because it may invite mischief and delay by empowering an agency that has made a final determination to manipulate POBRA’s timetable by holding off issuing formal notification of that determination.

Lastly, tying the conclusion of tolling to the final deter-mination whether to prosecute best harmonizes the cases that have thus far construed section 3304, subdivision (d)(2)(A)’s exception. Many cases have ruled that tolling ends when the prosecuting entity or the public agency itself has formally ended its criminal investigation. (Daugherty, su-pra, 24 Cal.App.5th at p. 962 [“formal end to the corruption investigation”]; Breslin, supra, 146 Cal.App.4th at pp. 1078-1079 [“when the criminal investigation formally ended”]; Richardson, supra, 214 Cal.App.4th at p. 697 [“‘when the criminal investigation formally ended’”].) Others have held that a log entry in the public agency’s records that “there was ‘lack of criminal prima facie to present’ to a prosecutor” ends the tolling. (See Lucio, supra, 169 Cal.App.4th at pp. 796-797 [applying City Charter provision with same language as section 3304, subdivision (d)(2)(A)].) In each of these cases, the formal end or log entry denoted a final determination that the criminal investigation was completed.

Bacilio offers two further arguments in response. First, he asserts that the text of section 3304, subdivision (d)(2)(A) nowhere says that an “informal letter” is not enough. This is true, but irrelevant because the text does not speak at all to the issue of when tolling ends. Second, he levels several attacks on a standard that hinges the end of tolling to a for-mal rejection—namely, that it might drag out investigations, lead to game playing, and be meaningless in cases where the public agency does not present its case to an outside prosecu-torial entity. Because our construction of section 3304, sub-division (d)(2)(A) makes formal rejection a sufficient but not a necessary condition to the end of tolling, Bacilio’s attacks on a standard we do not adopt are beside the point. What is more, his attacks do not call into question the propriety of the standard we do adopt, for the reasons we explain above.

II. DOES SUBSTANTIAL EVIDENCE SUPPORT THE FINDING THAT THE

DISTRICT ATTORNEY’S OFFICE DID NOT FINALLY DETERMINE NOT TO PROSECUTE UNTIL ITS

OCTOBER 3, 2013 DECLINATION TO PROSECUTE?

In assessing whether a prosecuting entity’s or public agen-cy’s determination is final, we look to the totality of the cir-cumstances along the entire timeline of the decision maker’s involvement. (Richardson, supra, 214 Cal.App.4th at pp. 693-694 [looking to what happened after interim decisions not to prosecute].) Although POBRA itself does not specify which party bears the burden of proving the applicability of tolling (id. at p. 698), the general rule is that the party who invokes a tolling doctrine bears the burden of proving its ap-plicability (Brown v. Bleiberg (1982) 32 Cal.3d 426, 439). We will apply that generally applicable rule.

Substantial evidence supports the finding that the City carried its burden of showing that the district attorney’s of-fice did not make its final determination regarding prosecu-tion until it issued its October 3, 2013 Worksheet declining to prosecute. To begin, the lead internal affairs investigator testified that the deputy district attorney’s comments to him on August 6, 2013 were tentative because she was “most likely . . . not going to file” charges and was “still actually working on the case.” Further, the very fact that the district attorney’s office prepared and transmitted a more fulsome and complete Worksheet regarding all three officers under investigation supports the finding that the earlier, August 6, 2013 oral advisement was an interim decision rather than a final determination. What is more, that the Worksheet was signed not only by the prosecutor but also by a reviewing deputy suggests that further review was necessary and that the prosecutor’s earlier oral advisement was not definitive. In these regards, the facts of this case are much like the facts of Richardson, supra, 214 Cal.App.4th 671, where the court determined that a criminal investigation was still pending (and thus still tolled under POBRA) until the prosecuting


entity wrote a formal memo declining charges, even though earlier memos to the file indicated that no investigation was ongoing. (Id. at pp. 693-694.)

Bacilio argues that the deputy district attorney’s August 6, 2013 comments heralded the end of the criminal investiga-tion. Specifically, he points to the internal affairs investiga-tor’s written notes recounting that the prosecutor said “she was not going to file against the officers” and that “it was okay . . . to do the admin[istrative] interview” as well as his initial testimony at the hearing that her comments consti-tuted “an official rejection.” Bacilio is essentially asking us to place greater weight on one part of the internal affairs in-vestigator’s testimony over another, and to do so in part by looking to who was asking the investigator the questions. But the hearing officer (and then the trial court) already did that, and each independently found the investigator’s comments regarding the tentative nature of the prosecutor’s comments to be more accurate. As a general principle, we cannot gain-say their determination as to which portions of a witness’s testimony to credit. (In re I.J. (2013) 56 Cal.4th 766, 773.) And we are particularly loathe to do so in this context, where doing so is tantamount to giving greater weight to what the investigator thought the prosecutor meant than to the pros-ecutor’s actual (though subsequent) words. (Accord, Rich-ardson, supra, 214 Cal.App.4th at p. 695 [“‘It defies reason to believe that a member of a separate department . . . is better able to ascertain the conclusion of an investigation within that separate department’”].)

DISPOSITION

The judgment is affirmed. The City and the LAPD Chief of Police are entitled to their costs on appeal.

CERTIFIED FOR PUBLICATION.

HOFFSTADT, J.We concur: LUI, P. J., ASHMANN-GERST, J.


THE PEOPLE, Plaintiff and Respondent,v.LAURO LOPEZ, Defendant and Appellant.

No. B282867In The Court of Appeal of the State of CaliforniaSecond Appellate DistrictDivision Four(Los Angeles County Super. Ct. No. BA440645)APPEAL from a judgment of the Superior Court of Los Angeles County, Kathleen Kennedy-Powell, Judge. Affirmed in part; reversed and remanded in part with instructions.Filed October 26, 2018

CERTIFIED FOR PARTIAL PUBLICATION*

* Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is certified for publication with the exceptions of parts I, II, and IV of the Discussion section.

COUNSELWaldemar D. Halka, under appointment by the Court of

Appeal, for Defendant and Appellant.Xavier Becerra, Attorney General, Gerald A. Engler,

Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Yun K. Lee and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

INTRODUCTIONWhile driving under the influence of alcohol, appellant

Lauro Lopez made a left turn in front of an oncoming mo-torcycle, hitting and killing the rider. A jury convicted appel-lant of second degree murder and felony hit and run driving resulting in death or serious injury.

Appellant challenges his conviction in several ways. First, he argues that the trial court erred by admitting evidence of the advisement he received after a prior conviction for driving under the influence. Second, appellant raises several claims of error related to the jury instructions. Third, he contends his conviction on both counts must be overturned due to his counsel’s concession at trial that appellant committed the hit and run, coupled with the absence of affirmative evidence that he knowingly waived his constitutional trial rights. Fi-nally, he asserts cumulative error and sentencing error.

We conclude that defense counsel’s statements during argument were tantamount to a guilty plea on the hit and


run offense. Moreover, the record is silent as to whether ap-pellant gave informed consent to waive his right to trial on this count. Under these circumstances and applying recent case law from the United States and the California Supreme Courts, we reverse the conviction on the hit and run charge. We otherwise affirm.

PROCEDURAL HISTORY

The Los Angeles County District Attorney charged ap-pellant in an information with one count of second degree murder (Pen. Code, § 187, subd. (a); count one)1 and one count of felony hit and run driving resulting in death or seri-ous injury to another person (Veh. Code, § 20001, subd. (b)(2); count two). Appellant pled not guilty to both counts and the matter proceeded to jury trial.

The jury found appellant guilty on both counts. The court sentenced appellant to 15 years to life on the murder charge and three years on the hit and run charge, to run consecu-tively. Appellant timely appealed.

FACTUAL BACKGROUND

The following evidence was adduced at trial.

I. PROSECUTION EVIDENCE

A. 2013 drunk driving convictionAppellant was previously arrested for driving under the

influence on January 7, 2013. He pled no contest to driving under the influence with a blood alcohol content of .08 per-cent or higher in violation of Vehicle Code section 23152, subdivision (b), and admitted as part of his plea that his blood alcohol level was actually .20 percent or higher. Before en-tering his plea, appellant signed a written advisement, which was also read to him by a Spanish interpreter. It included the following Watson2 advisement: “I understand that be-ing under the influence of alcohol or drugs or both impairs my ability to safely operate a motor vehicle. Therefore, it is extremely dangerous to human life to drive while under the influence of alcohol or drugs or both. If I continue to drive while under the influence of alcohol or drugs or both, and as a result of my driving someone is killed, I can be charged with murder.” In addition, during the plea hearing, the judge repeated the Watson advisement.

The terms of appellant’s plea required him to complete a nine-month alcohol education program and a Mothers Against Drunk Driving (MADD) victim impact program, and barred him from driving without a valid driver’s license or with any measurable amount of alcohol in his system. Ap-pellant was placed on probation for three years.

Pursuant to the terms of his plea, appellant completed a nine-month alcohol program starting in February 2013. The program, given in Spanish, included 23 group sessions, six alcoholic education sessions, 10 interviews, and 19 Alcohol-

1. All further statutory references herein are to the Penal Code unless otherwise indicated.

2. People v. Watson (1981) 30 Cal.3d 290 (Watson).

ics Anonymous meetings. Upon completion, appellant filled out an exit form stating that he would not drink and drive.

In November 2013, appellant also attended a victim im-pact panel, an educational program for driving under the in-fluence (DUI) offenders. He registered for and completed the course in English. As part of the program, the administrator testified that she discussed the Watson advisement with the participants and projected the text on a big screen. She would customarily tell the story of another class participant who at-tended the class twice and later caused an accident that killed two people.

B. 2015 accident

On October 13, 2015 at approximately 7:15 p.m., ap-pellant approached the intersection of Soto Street and 57th Street in Huntington Park. He was driving his white pickup truck and his 29-year-old son was in the passenger seat. Ap-pellant made a left turn onto 57th Street in front of an oncom-ing motorcycle. He struck the motorcycle, knocking its rider to the ground. Appellant then drove away from the scene.

A bystander called 911, reporting that “a guy came, took a left. And nailed a woman or man on a motorcycle.” He described the vehicle as a white truck and told the operator where the truck was heading. The 911 call was played for the jury at trial.

Detective Garey Staal of the Huntington Park Police De-partment (HPPD) testified that he and his partner saw the motorcycle driving on Soto Street before the accident. The motorcycle was travelling a “little faster than the normal traf-fic but . . . nothing that was concerning as far as speed.” They came upon the scene of the accident and saw the same mo-torcycle on the ground. Detective Staal ran toward the victim on the ground and began performing CPR, assisted by others at the scene. Paramedics arrived less than five minutes later. The victim was transported to the hospital and died shortly thereafter from his injuries.

Staal and his partner gathered a description of the sus-pect vehicle and its direction of travel from witnesses at the scene; they broadcast that information over their police radio. The detectives also noticed a license plate lying in the street, which appeared to be the front license plate from the suspect vehicle. Staal’s partner wrote down the license plate number and gave it to police dispatch; dispatch advised him that the vehicle with that plate number was registered to appellant.

A short time later, a police officer who had heard the col-lision and then heard about the suspect over the police radio spotted appellant’s truck parked in a nearby business parking lot. As the officer walked over to the truck, he noticed appel-lant and his son standing in a yard next to the vehicle. The officer approached and asked in Spanish if either of them was driving the pickup truck. The officer testified at trial that in response, appellant pointed to his son, who shook his head no. The officer then called for assistance.

HPPD officer Martin Magallanes arrived a few moments later. He noted that the front license plate on appellant’s truck


was missing and the rear plate matched the number from the plate at the scene. He spoke to appellant in Spanish and testi-fied that he could smell alcohol on appellant’s breath. Ap-pellant acknowledged to Magallanes that he had consumed three 24-ounce beers between 5:00 and 6:00 p.m. He stated he did not feel the effects of the alcohol, but Magallanes no-ticed appellant swaying. Appellant also admitted he had been driving. He told Magallanes that his truck did not have any mechanical problems and he knew he had collided with a motorcycle. He did not ask about the condition of the rider.

Magallanes administered a field sobriety test to appellant, which indicated appellant was impaired. Appellant was also given two breath tests, one at 8:10 and one at 8:12 p.m.; both showed his blood alcohol content was 0.14 percent. That re-sult was confirmed by a blood draw taken at 8:30 p.m.3 Ap-pellant was arrested.

Magallanes interviewed appellant in jail that evening around 10:00 p.m. Appellant agreed he had “too many beers” and knew driving after drinking was a crime. He said he had one beer at work, then went to the liquor store to get beer, drove home, and drank “two big Modelos” at home. He told Magallanes that he was not planning to leave his house that night, but he decided to drive his son to a friend’s house to see about a job. At the time of the accident, he saw the motor-cycle approaching but thought he would be able to make the left turn safely before the collision. He did not see the motor-cyclist after the crash. Appellant then left the scene because he was scared he would get arrested because he had been drinking. His son told him to remain at the scene. Appellant also stated he was not planning to report the collision that night because he was intoxicated.

HPPD detective Osvaldo Cervantes interviewed appellant on October 14, 2015. Excerpts from the video of that inter-view were played for the jury. Appellant reiterated that he drank three 24-ounce Modelo beers, finishing about an hour before the accident. When asked if he thought he was drunk, appellant responded, “Well, on the one hand, yes, but on the other hand I think - yes, I was a little. I’m not going to say no. But . . . my kid was going . . . and I thought it easier that I take the truck rather than him.” The detectives also asked why appellant drove if he knew he was drunk. He responded, “that was my mistake.” He said the admonition he received with his prior conviction was that “I wasn’t to drive again with alcohol” and knew he couldn’t drive for three years. He also knew he was still on probation from his prior conviction.

Appellant told the detectives that he was “going to make a left turn” and claimed he saw the other driver “coming at a high velocity on his motorcycle. But, there were no cars. He came hard.” Appellant thought he was going to be able to turn in front of the motorcycle, but they collided. His son

3. A prosecution expert opined that any driver would be impaired at the level of .08 percent or above. Given a hypothetical scenario matching the facts of the case, he also opined that the driver’s blood alcohol content at the time of the accident would be between 0.14 and 0.16 percent.

said “Wait Dad!” before the turn, but appellant went ahead because he thought he could beat the motorcycle. After he felt the crash, appellant reversed his truck to move away from the accident and then left the scene because he was scared. He claimed he did not see the condition of the motorcyclist and did not see him on the ground. His son wanted to get out and check on the victim, but appellant did not stop.

Appellant admitted to the detectives that he thought the victim was hurt and he “came out of it badly.” Before they ad-vised appellant that the victim had died, the detectives asked appellant if he wanted to know how serious the victim’s inju-ries were. Appellant responded, “If you want to tell me.” He later stated that he was sorry but that it was also the victim’s fault because he (the victim) was driving so fast.

II. DEFENSE EVIDENCE

The defense did not call any witnesses and appellant did not testify.

DISCUSSION

[ PARTS I AND II, See FOOTNOTE*, Ante ]

III. DEFENSE COUNSEL’S CONCESSION OF HIT AND RUN

During his opening statement and closing argument, de-fense counsel conceded appellant’s guilt as to the second count of felony hit and run, focusing instead on the murder count. Appellant argues that his counsel’s concession was tantamount to a guilty plea on that count. Further, because the record is silent as to whether appellant knowingly waived his right to trial on the hit and run, he contends the absence of a valid waiver requires reversal. He asserts that this error in-fected his murder conviction as well. We agree with appellant as to the hit and run conviction, and reverse his conviction on that count. But we find no error as to the murder conviction.

A. Factual background

Defense counsel’s opening statement included an un-equivocal concession on the hit and run count. He stated that appellant “caused the accident. No dispute. And then he drove away.” A few moments later, he conceded, “As to the hit and run, he’s guilty of it; I’ll say that again at the end. There are no games being played here. . . . But he’s not guilty of murder.” The remainder of the defense opening statement focused on the murder charge.

Similarly, in closing argument, defense counsel focused solely on the murder charge, stating that as to the hit and run charge, “I’ve never disputed it. He’s guilty of it; he should be punished for it.” In her closing, the prosecutor noted that she would not “touch on the second count, the hit and run; I think that’s very obvious that he is guilty of that count.”


B. Effect on hit and run conviction

1. Legal framework“When a criminal defendant enters a guilty plea, the tri-

al court is required to ensure that the plea is knowing and voluntary. [Citation.] As a prophylactic measure, the court must inform the defendant of three constitutional rights—the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront one’s accusers—and solicit a personal waiver of each.” (People v. Cross (2015) 61 Cal.4th 164, 170.) Accordingly, in the event of a guilty plea or other conduct tantamount to a plea, “the record must demonstrate that the defendant voluntarily and intelligently waived his constitutional trial rights.” (People v. Farwell (2018) 5 Cal.5th 295, 300 (Farwell).)

Two recent cases, McCoy v. Louisiana (2018) __U.S.__, 138 S.Ct. 1500 (McCoy) and Farwell, supra, 5 Cal.5th 295 inform our analysis here.4 In McCoy, defense counsel in-formed defendant of his plan to concede guilt on the commis-sion of three murders in an attempt to avoid a death sentence for defendant. (McCoy, supra, 138 S.Ct. at p. 1506.) The defendant insisted he did not commit the murders and ada-mantly objected to any admission of guilt. (Ibid.) During his opening statement and closing argument, over defendant’s objection, defense counsel told the jury the evidence was “unambiguous,” that defendant “committed three murders.” (Id. at p 1507.)

The Supreme Court concluded that “counsel may not admit her client’s guilt of a charged crime over the client’s intransigent objection to that admission.” (McCoy, supra, 138 S. Ct. at p. 1510.) As the McCoy court noted, “some decisions . . . are reserved for the client—notably, whether to plead guilty, waive the right to a jury trial, testify in one’s own behalf, and forgo an appeal.” (Id. at 1508.) Further, the trial court’s error in allowing defense counsel to proceed was “structural”; “when present, such an error is not subject to harmless-error review.” (Id. at p. 1511.)

The court also distinguished Florida v. Nixon (2004) 543 U.S. 175, 186 (Nixon), in which defense counsel several times explained to the defendant a proposed concession strat-egy, but the defendant was unresponsive. The Nixon court held that “when counsel confers with the defendant and the defendant remains silent, neither approving nor protesting counsel’s proposed concession strategy, ‘[no] blanket rule demand[s] the defendant’s explicit consent’ to implementa-tion of that strategy.” (McCoy, supra, 138 S.Ct. at p. 1505, quoting Nixon, supra, 543 U.S. at p. 192.)

The California Supreme Court addressed a related issue in Farwell, supra, 5 Cal.5th 295. There, the defendant was charged with gross vehicular manslaughter and misdemeanor driving with a suspended license. (Id. at p. 298.) During trial, the parties entered into a stipulation admitting all the ele-

4. Both opinions were published after the parties had completed briefing in this appeal. We granted appellant’s request to allow the par-ties to submit supplemental letter briefs addressing McCoy. We also requested and received supplemental briefing addressing Farwell.

ments of the misdemeanor charge; the court later instructed the jury that it must accept the stipulated facts as true. (Id. at pp. 298-299.) The court did not advise the defendant “of the constitutional rights implicated by a guilty plea or the stipula-tion. Nor did it solicit a personal waiver of those rights.” (Id. at p. 299.) The Supreme Court first found that a “stipulation that admits all of the elements of a charged crime necessary for a conviction is tantamount to a guilty plea.” (Ibid.) Far-well’s “stipulation conclusively established the stipulated facts as true and completely relieved the prosecution of its burden of proof on count 2. While the jury was still required to return a verdict on that count, its limited function did not amount to a jury trial in the constitutional sense.” (Id. at p. 300.) “Accordingly, the record must demonstrate that the defendant voluntarily and intelligently waived his constitu-tional trial rights.” (Ibid.)

The court next turned to the lack of express advisements and waivers in the record. It examined the test set forth in People v. Howard (1992) 1 Cal.4th 1132 (Howard), which held that a plea is valid notwithstanding the lack of express advisements and waivers “if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances.” (Id. at p. 1175; see also Farwell, supra, 5 Cal.5th at p. 301.) The Farwell court concluded that this “to-tality of the circumstances” test applied “in all circumstances where the court fails, either partially or completely, to advise and take waivers of the defendant’s trial rights before ac-cepting a guilty plea.” (Id. at p. 303.) Applying that test, the court found there was “no affirmative evidence that Farwell understood his stipulation would conclusively establish all of the elements of the misdemeanor crime and make the guilty verdict a foregone conclusion.” (Id. at pp. 307–308.)

2. AnalysisThe facts of this case place it somewhere between the cir-

cumstances of McCoy and Farwell. As in McCoy, defense counsel conceded during argument that appellant committed the hit and run. This concession was tantamount to a guilty plea, as it admitted “all of the elements of a charged crime necessary for a conviction” and “relieved the prosecution of its burden of proof” on that count. (Farwell, supra, 5 Cal.5th at pp. 299-300; see also McCoy, supra, 138 S.Ct. 1500, 1508.) As such, defense counsel’s complete concession of guilt on the hit and run count was permissible only if based on a knowing and informed waiver by appellant of his right to trial on that count. (See McCoy, supra, 138 S.Ct. 1500, 1508 [“Just as a defendant may steadfastly refuse to plead guilty in the face of overwhelming evidence against her, or reject the assistance of legal counsel despite the defendant’s own inexperience and lack of professional qualifications, so may she insist on maintaining her innocence. . . . These are not strategic choices about how best to achieve a client’s objec-tives; they are choices about what the client’s objectives in fact are.”].)


Unlike the facts of McCoy, there is no evidence in the record that appellant objected to defense counsel’s strategy. But there is also no evidence in the record that appellant was informed of counsel’s decision to concede guilt on the hit and run count or, crucially, what rights he would be giving up as a result. As such, to avoid error, the record must af-firmatively show that appellant’s waiver was voluntary and intelligent under the totality of the circumstances. (Farwell, supra, 5 Cal.5th at p. 300; Howard, supra, 1 Cal.4th at p. 1180.) Moreover, as the Farwell court noted, silent record cases “face their own practical hurdle. The failure to advise a defendant of any trial rights will make it much harder to dem-onstrate a plea was properly accepted.” (Farwell, supra, 5 Cal.5th at p. 306.) Further, “[t]he absence of express advise-ments is particularly troublesome” in the context of a stipula-tion or concession that is tantamount to a guilty plea. (Ibid.)

As in Farwell, we find that the record fails to affirmatively show that appellant understood his counsel’s concession “ef-fectively extinguished his trial rights” as to the hit and run charge. (Farwell, supra, 5 Cal.5th at p. 306.) Although ap-pellant was advised of his trial rights at the time of his prior guilty plea to the DUI charge in 2013, there is no indication in the record that appellant understood he was waiving those same rights by virtue of his counsel’s concession during ar-gument in this case. (See id. at pp. 306-307.)

We do not doubt, as respondent claims, that defense coun-sel likely made the concession as a strategic decision, given the largely undisputed evidence as to the hit and run charge and the seriousness of the murder charge. However, with the guidance of McCoy and Farwell, we recognize that such a previously acceptable tactical decision cannot override ap-pellant’s constitutional rights and the protections in place to ensure a knowing and voluntary waiver of those rights.There-fore, we reverse the conviction on the hit and run charge.5

C. Effect on murder conviction

Appellant also argues that his counsel’s concession of guilt as to the hit and run charge requires reversal of the mur-der conviction “because the concession could be used by the jury to find, as a matter of law, implied malice.” We disagree.

As an initial matter, as discussed herein, defense counsel’s concession would be considered tantamount to a guilty plea only where it admitted all of the elements of the charged crime. (Farwell, supra, 5 Cal.5th at pp. 299-300; see also McCoy, supra, 138 S.Ct. 1500, 1508.) Appellant fails to dem-onstrate that this was the case for the murder charge; instead, he argues that the concession could have relieved the pros-ecution of its burden to prove the element of implied malice. Rather than conceding, defense counsel expressly argued to the jury that defendant was not guilty of murder and did not possess the requisite mental state.

5. Appellant’s argument that the imposition of consecutive sen-tences on the two counts violated section 654 is therefore moot.

Further, we are not persuaded by appellant’s contention that the jury could have found implied malice required for the murder charge based on his post-accident conduct alone. As the jury was instructed, a hit and run in violation of Ve-hicle Code section 20001, subdivision (b)(2) requires proof of the following elements: (1) the defendant was involved in a vehicle accident while driving; (2) the accident caused the death of someone else; (3) the defendant “knew that he had been involved in an accident that injured another person or knew from the nature of the accident that it was probable that another person had been injured”; and (4) the defendant willfully failed to perform one or more enumerated duties, including immediately stopping at the scene of the accident, providing reasonable assistance to any injured person, pro-viding his name and address to the other driver, and notifying police or highway patrol of the accident “without unneces-sary delay.” (Veh. Code §§ 20001, 20003, 20004.) As such, the hit and run charge focused entirely on the fact of the acci-dent and appellant’s conduct afterward. Indeed, a concession as to the hit and run charge does not require an admission that appellant caused the accident. (See People v. Martinez (2017) 2 Cal.5th 1093, 1103 [“a defendant who flees the scene of an injury accident has committed a crime even if the accident was solely the result of the victim’s own negligence”].)

As a result, appellant’s argument depends on his theory that the jury could have based a finding of implied malice on his post-accident conduct alone. Appellant cites no author-ity in support of this proposition. His citation to People v. Cravens (2012) 53 Cal.4th 500 (Cravens) is inapposite. In Cravens, the court found substantial evidence to support a second-degree murder conviction for a defendant who deliv-ered a deadly sucker punch at the end of a group fight. (Id. at pp. 508-511.) In upholding the jury’s finding of implied malice, the court relied on the circumstances of the attack, as well as defendant’s conduct both before and after the fight, noting that his post-accident callousness “bolstered the find-ing of implied malice.” (Id. at p. 511.)

Similarly, here, the prosecution argued at length regarding appellant’s pre-accident knowledge of the dangers of drink-ing and driving, his decision to drive while impaired on the day of the accident, and his decision to turn in front of the motorcyclist, concluding that the evidence established that he acted with implied malice at the time of the accident. For example, she argued that the victim’s death occurred because appellant “made decisions that night, knowing that they would result in hurting or killing another person, and said, ‘I’ll take the risk.’” She also argued that appellant’s conduct in leaving the scene bolstered the showing of his disregard for human life. She did not suggest, however, that the jury could find implied malice based solely on appellant’s post-accident conduct. To the contrary, in her rebuttal argument, she stated that the test for implied malice was “what was the defendant’s state of mind before he committed that act?”

Moreover, appellant’s counsel argued several times that his post-accident conduct was irrelevant to the malice inqui-


ry. He told the jury that “the question isn’t what happened after the accident; it’s malice aforethought. . . . The question is what was going on in his head before the accident.”

We also reject appellant’s argument that “nothing in the jury instructions prohibited the jury from finding implied malice based solely on defendant’s post-accident conduct and mental state.” The jury was instructed with CALCRIM No. 520, providing that the prosecution must prove that “when the defendant acted, he had a state of mind called mal-ice aforethought,” and that implied malice required a finding that “at the time he acted, he knew his act was dangerous to human life.” Further, at appellant’s request and over the prosecutor’s objection, the court modified the instruction to include the following factors that the jury could consider to determine whether appellant acted with implied malice: “(1) A blood alcohol level above the legal limit of .08 percent; (2) Whether there is evidence of pre-drinking intent to drive; (3) Defendant’s knowledge of the hazards of driving while intoxicated or under the influence of alcohol; (4) Highly dangerous driving.” Notably, these factors focus on evidence prior to or at the time of the accident. We also note that the jury was instructed with CALCRIM No. 372, which provides that evidence of a defendant’s flight after the crime “may show that he was aware of his guilt,” but “cannot prove guilt by itself.” As such, the record does not support appellant’s assertion that the jury could have based its second degree murder verdict on his post-accident conduct alone.

[ PARTS IV, See FOOTNOTE*, Ante ]

DISPOSITIONThe judgment of conviction on count one is affirmed. The

conviction on count two is reversed and the matter is remand-ed for further proceedings consistent with this opinion.

COLLINS, J.We concur: MANELLA, P. J., MICON, J.*

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.


THE PEOPLE, Plaintiff and Respondent,v.OKOUAVA SAELEE, Defendant and Appellant.

No. C084235In The Court of Appeal of the State of CaliforniaThird Appellate District(Sacramento)(Super. Ct. No. 13F07014)APPEAL from a judgment of the Superior Court of Sacramento County, Curtis M. Fiorini, Judge. Reversed with directions.Filed October 26, 2018

COUNSEL

Elizabeth Campbell for Defendant and Appellant.Xavier Becerra, Attorney General, Gerald A. Engler,

Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein, Alice Su, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

In this case, we make clear that the prosecution is required to admit actual evidence to establish an unreasonable risk of danger to public safety in the second step of Health and Safety Code section 11361.8, subdivision (b),1 enacted as part of Proposition 64. We further hold that the standard of proof is proof by a preponderance of the evidence. Mere as-sertions of fact and argument by the prosecution, unsupport-ed by evidence, is insufficient to establish an unreasonable risk of danger to the public, i.e., an unreasonable risk that the petitioner will commit a “super-strike” violent felony of-fense. Thus, while we disagree with defendant’s contention that the clear and convincing evidence standard applies to the risk of dangerousness finding under section 11361.8, subdi-vision (b), we nevertheless conclude the trial court abused its discretion in rejecting defendant’s petition to recall and resentence his conviction as a misdemeanor because in de-termining that defendant presented an unreasonable risk of danger to the public, the trial court relied only on bald factual assertions and argument by the prosecution unsupported by actual evidence.

We reverse and remand for further proceedings.

1. Further undesignated statutory references are to the Health and Safety Code.


FACTUAL AND PROCEDURAL BACKGROUND

In October 2013, defendant was charged with manufactur-ing hash oil (§ 11379.6, subd. (a); count one), being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1); count two), and possessing marijuana for sale (§ 11359; count three). The complaint alleged that he had suffered a prior serious felony conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) based on a 1994 conviction for assault with a semi-automatic firearm (Pen. Code, § 245, subd. (b)).

In September 2014, defendant pleaded no contest to pos-sessing marijuana for sale and admitted the prior serious felony conviction allegation as well as a prior prison term allegation under Penal Code section 667.5, subdivision (b), which was added to the information by stipulation. The court sentenced defendant to a negotiated aggregate term of seven years.

In December 2016, defendant petitioned to redesignate his offense as a misdemeanor under section 11361.8.2 The petition alleged defendant had no disqualifying factors under subdivision (b) of section 11361.8. In February 2017, the prosecution filed written opposition to the petition, arguing that resentencing was inappropriate because defendant posed an unreasonable risk of danger to public safety. The pros-ecution did not challenge defendant’s assertion that he was statutorily eligible for resentencing.

Although the prosecution’s written opposition contained numerous factual assertions, it was not supported by any evi-dence. In the written opposition, the prosecution asserted that defendant had a lengthy criminal history, including several prior firearms-related offenses. According to the prosecution, in 1992, when defendant was 18, he was convicted of carry-ing a loaded firearm. (Former Pen. Code, § 12031.) While on probation for that offense, defendant was convicted of felony possession of a firearm in violation of a probation condi-tion restricting gun possession. (Former Pen. Code, § 12021, subd. (d).) The prosecution further represented that in 1994, while on probation in each of the prior cases, a jury “con-victed” defendant of “five counts of Penal Code [section] 245(b) . . . assault with the personal use of a firearm.”3 He was sentenced to 30 years four months in state prison.

2. Defendant’s petition is labeled a petition for redesignation, but because he is currently serving a sentence on the subject conviction, it is more properly characterized as a petition for recall and resentenc-ing. (See § 11361.8, subds. (a)-(d) [resentencing]; § 11361.8, subds. (e)-(g) [redesignation]; 2 Couzens et al., Sentencing Cal. Crimes (The Rutter Group 2018) § 27.7, p. 27-11 & § 27.12, pp. 27-43 to 27-44 (Couzens) [distinguishing between § 11361.8 provisions applicable to people currently serving a sentence and provisions applicable to persons who have completed their sentence].) We will thus refer to defendant’s petition as one for recall and resentencing.

3. Although the prosecution asserted the defendant was “convict-ed by jury” of “ assault with personal use of a firearm,” we note that Penal Code section 245, subdivision (b), did not require personal use. The version of that was in effect between 1993 and December 31, 1999, read: “(b) Any person who commits an assault upon the person of another with a semiautomatic firearm shall be punished by impris-onment in the state prison for three, six, or nine years.” One could be

The prosecution also asserted that defendant’s current marijuana offense involved weapons. Citing a sheriff’s report on the incident, the prosecution noted that a loaded .38-cali-ber handgun with its serial number removed was found in defendant’s waistband. The gun had nine live rounds of am-munition in it. A search of defendant’s residence revealed a rifle with 33 rounds of ammunition in defendant’s bedroom plus more than 100 pounds of marijuana throughout the prop-erty, and evidence of methamphetamine manufacturing.4

On the same day the People filed their opposition, the court summarily denied the petition. The court found that defendant would pose an unreasonable risk of danger to pub-lic safety and denied his petition solely on that ground.

DISCUSSION

Defendant contends the trial court abused its discretion in denying his petition to recall his felony conviction for pos-session of marijuana for sale (§ 11359) and resentence him to a misdemeanor because the prosecution failed to prove by clear and convincing evidence that he was an unreasonable risk to public safety. Defendant also points out that the pros-ecution offered no evidence in support of its dangerousness contention. We agree the court erred, not because it employed the wrong standard of proof, but for the reason that the pros-ecution introduced no evidence to satisfy its burden of proof.

I. PROPOSITION 64

On November 8, 2016, California voters approved Propo-sition 64, the Control, Regulate and Tax Adult Use of Mari-juana Act. (Ballot Pamp., Gen. Elec. (Nov. 8, 2016) text of Prop. 64, § 1, p. 178.) Among other things, Proposition 64 reduced the punishment for certain marijuana offenses, in-cluding possessing marijuana for sale under section 11359. The possession for sale of marijuana by a person 18 years of age or older is now punished as a misdemeanor unless the person has certain prior convictions or the offense involved the sale or attempted sale to a person under 18 years of age or the knowing use of a person 20 years of age or younger in cultivating, transporting, or selling marijuana. (§ 11359, subds. (b) & (c).)

Proposition 64 also provides a mechanism for recalling and resentencing prior felony convictions to a misdemeanor for persons currently serving a sentence. It added section 11361.8, which provides in pertinent part: “(a) A person cur-rently serving a sentence for a conviction, whether by trial or

convicted of a violation of Penal Code section 245, subdivision (b), as an aider and abettor. If there was a personal use allegation found true in connection with this conviction, the written opposition is not clear because the prosecutor only referenced Penal Code section 245, subdivision (b), and did not reference a code section for a personal use enhancement.

4. The factual basis for the plea stated only the generic facts re-lated to the plea: defendant “was in possession of marijuana for sale, having suffered a prior conviction on June 2nd, 1994, which falls un-der the Three Strikes Law. [¶] Also, he failed to remain free and clear from prison custody for five years.”


by open or negotiated plea, who would not have been guilty of an offense, or who would have been guilty of a lesser offense under the Control, Regulate and Tax Adult Use of Marijuana Act had that act been in effect at the time of the offense may petition for a recall or dismissal of sentence be-fore the trial court that entered the judgment of conviction in his or her case to request resentencing or dismissal in accor-dance with Sections 11357, 11358, 11359, 11360, 11362.1, 11362.2, 11362.3, and 11362.4 as those sections have been amended or added by that act.” (§ 11361.8, subd. (a).)

Subdivision (b) of section 11361.8 provides: “Upon re-ceiving a petition under subdivision (a), the court shall pre-sume the petitioner satisfies the criteria in subdivision (a) unless the party opposing the petition proves by clear and convincing evidence that the petitioner does not satisfy the criteria. If the petitioner satisfies the criteria in subdivision (a), the court shall grant the petition to recall the sentence or dismiss the sentence because it is legally invalid unless the court determines that granting the petition would pose an unreasonable risk of danger to public safety.” (§ 11361.8, subd. (b).)

An “ ‘unreasonable risk of danger to public safety’ has the same meaning as provided in subdivision (c) of Section 1170.18 of the Penal Code.” (§ 11361.8, subd. (b)(2).) That statute defines the term as “an unreasonable risk that the pe-titioner will commit a new violent felony within the meaning of [Penal Code section 667, subdivision (e)(2)(C)(iv)].” (Pen. Code, § 1170.18, subd. (c).) The cited subdivision of Penal Code section 667 identifies eight serious or violent felonies, “known colloquially as ‘super strikes.’ ”5 (People v. Valencia (2017) 3 Cal.5th 347, 351, fn. omitted.)

II. ANALYSIS

A. The Proper Standard of Proof on the Dangerousness Finding

Defendant contends the prosecution had the burden of proving the risk of dangerousness as defined by Penal Code sections 1170.18, subdivision (c), and 667, subdivision (e)(2)(C)(iv), by clear and convincing evidence. We disagree.

Determining the proper standard of proof on the issue of dangerousness requires us to interpret section 11361.8, enacted as part of Proposition 64. “ ‘In interpreting a voter

5. The “super strikes” are: (1) “ ‘a sexually violent offense’ ” as defined in Welfare and Institutions Code, section 6600, subdivision (b); (2) oral copulation or sodomy, or sexual penetration of a child under 14 years of age and more than 10 years younger than the defen-dant, as defined in Penal Code sections 286, 288a, and 289; (3) a lewd and lascivious act involving a child under 14 years of age, in viola-tion of Penal Code section 288; (4) any homicide offense, including attempted homicide, as defined in Penal Code sections 187 through 191.5; (5) solicitation to commit murder, as defined in Penal Code sec-tion 653f, subdivision (b); (6) assault with a machine gun on a peace officer or firefighter, as defined in Penal Code section 245, subdivision (d)(3); (7) possession of a weapon of mass destruction, as defined in Penal Code section 11418, subdivision (a)(1); and (8) any serious and/or violent felony offense punishable in California by life imprison-ment or death (Pen. Code, § 667, subd. (e)(2)(C)(iv)(I-VIII)).

initiative . . . , we apply the same principles that govern stat-utory construction.’ ” (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 900.) Under fundamental rules of statutory construction, we must ascertain the intent of the Legislature, or the electorate, from examining the statute as a whole in order to effectuate the purpose of the law. (People v. Salcido (2008) 166 Cal.App.4th 1303, 1310-1311.) We look first to the plain meaning of the words used, giving effect to the usual and ordinary import of those words. (Id. at p. 1311.) “ ‘If the statutory language is unambiguous, “we presume the Legislature [or electorate] meant what it said, and the plain meaning of the statute governs.” ’ ” (Ibid.) “ ‘We may not add to or alter those words in order to accomplish a purpose that does not appear on the face of the statute or from its legisla-tive history.’ ” (Ibid.; Adoption of Kelsey S. (1992) 1 Cal.4th 816, 826-827 [courts do not insert words into a statute be-cause “[d]oing so would violate the cardinal rule that courts may not add provisions to a statute”].)

Subdivision (b) of section 11361.8 contains two sentenc-es, setting forth a two-step procedure. The first sentence ad-dresses eligibility and states that upon receiving a petition for a recall of sentence under subdivision (a), the court shall presume the petitioner satisfies the criteria under that subdi-vision “unless the party opposing the petition proves by clear and convincing evidence that the petitioner does not satisfy the criteria.” (§ 11361.8, subd. (b).) The second sentence, which addresses suitability and pertains to the trial court’s risk of dangerousness determination, contains no similar standard. The second sentence states in its entirety: “If the petitioner satisfies the criteria in subdivision (a), the court shall grant the petition to recall the sentence or dismiss the sentence because it is legally invalid unless the court deter-mines that granting the petition would pose an unreasonable risk of danger to public safety.” (§ 11361.8, subd. (b), ital-ics added.) This two-step procedure is similar to the recall and resentencing provisions in the Three Strikes Reform Act of 2012 (Proposition 36), and the Safe Neighborhoods and Schools Act of 2014 (Proposition 47). (See People v. Estrada (2017) 3 Cal.5th 661, 667 [referring to the first step in the Prop. 36 recall and resentencing provision as an eligibility determination and the second step as a suitability determina-tion in which the trial court makes a finding as to the risk of danger to public safety posed by the petitioner]; People v. Hall (2016) 247 Cal.App.4th 1255, 1261 (Hall) [referring to the Prop. 47 procedure as a “ ‘two-step mechanism,’ ” the first step calling for an eligibility determination and the sec-ond a determination as to the risk of dangerousness].)6

6. The Proposition 47 recall and resentencing provision is set forth in Penal Code section 1170.18, subdivision (b). It provides in pertinent part: “If the petitioner satisfies the criteria in subdivision (a), the pe-titioner’s felony sentence shall be recalled . . . unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.”

The Proposition 36 recall and resentencing provision is set forth in Penal Code section 1170.126, subdivision (f). It provides in perti-nent part: “If the petitioner satisfies the criteria in subdivision (e), the


Under the plain language of Proposition 64’s section 11361.8, subdivision (b), the clear and convincing evidence standard applies to the first-step in Proposition 64’s two-part procedure, the prosecution’s burden of proof for establishing that defendant does not satisfy the criteria for resentencing set forth in subdivision (a) and is therefore ineligible for re-lief. Dangerousness is not part of the eligibility criteria; it is a consideration pertinent to the second step concerning suit-ability. Nowhere does the statute apply that same standard to the trial court’s risk of dangerousness determination in the second step. The statute’s plain language is simply not amenable to defendant’s interpretation that a trial court may find him unsuitable only if the prosecutor proves he presents the requisite risk of danger to the public by clear and con-vincing evidence. That interpretation requires that we write something into the statute not enacted by the voters. This we will not do. (People v. Hoffman (2015) 241 Cal.App.4th 1304, 1311 [“In construing a measure, we may not undertake to rewrite its unambiguous language”].)

Other courts have rejected similar claims in the context of Proposition 36 and Proposition 47. (People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1302-1306 (Kaulick); People v. Jefferson (2016) 1 Cal.App.5th 235, 240-242 (Jefferson).) 36].)7 The courts in Kaulick and Jef-ferson concluded, respectively, that the standard of proof to be applied in the second-step under the Proposition 36 and Proposition 47 recall and resentencing provisions is the de-fault standard of proof by a preponderance of the evidence. (Kaulick, at pp. 1305-1306 [Prop. 36]; Jefferson, at p. 241 [Prop. 47].) In doing so, both courts cited Evidence Code sec-tion 115, which provides: “[e]xcept as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence.” (Kaulick, at p. 1305; Jefferson, at p. 341.)

We conclude that the reasoning of Kaulick and Jefferson applies equally to section 11361.8, subdivision (b), enacted in Proposition 64. (See Couzens, § 27.11, pp. 27-29 to 27-32.) Because neither the plain language of section 11361.8, nor any other statute provides for a higher standard of proof on the dangerousness finding under section 11361.8, subdivi-sion (b), the proper standard of proof for the suitability step is preponderance of the evidence.

petitioner shall be resentenced . . . unless the court, in its discretion, determines that resentencing the petitioner would pose an unreason-able risk of danger to public safety.”

7. We recognize that neither the Proposition 36 nor Proposition 47 provisions contain the first sentence in section 11361.8, subdivision (b), stating that there is a presumption that the defendant satisfies the recall criteria “unless the party opposing the petition proves by clear and convincing evidence that the petitioner does not satisfy the crite-ria.” Given our holding that this language applies only to satisfaction of the criteria qualifying defendant for recall, this distinction between the Proposition 64 provisions and the Proposition 36 and 47 provisions is not pertinent to our analysis about the standard of proof as to the risk of danger to the public, i.e., defendant’s suitability.

B. Supporting Evidence

In responding to defendant’s assertion that the prosecution failed to introduce evidence supporting the dangerousness finding, the People suggest the prosecution is under no ob-ligation to do so. They assert that defendant did not cite any authority for such a requirement and in any event, the prose-cution provided specific court case numbers and police report numbers associated with the prior convictions discussed in the written opposition. We disagree that there is no statutory authority requiring the introduction of evidence to establish an unreasonable risk of danger to the public. Although the trial court was not required to find a risk of unreasonable dan-ger by clear and convincing evidence, the court was required to rely on evidence to make the dangerousness finding. This the court did not do.

In making the dangerousness finding, section 11361.8, subdivision (b)(1), expressly provides that “the court may consider, but shall not be limited to evidence provided for in subdivision (b) of Section 1170.18 of the Penal Code.” (Italics added.) Under Penal Code section 1170.18, the re-sentencing court may consider: (1) the petitioner’s “criminal conviction history, including the type of crimes committed, the extent of injury to victims, the length of prior prison com-mitments, and the remoteness of the crimes”; (2) his or her “disciplinary record and record of rehabilitation while incar-cerated”; and (3) “[a]ny other evidence” the court, within its discretion, deems relevant. (Pen. Code, § 1170.18, subd. (b)(1)-(3). italics added.) These provisions clearly signal that some type of evidence must be presented to the trial court.

Here, the People’s written opposition to the petition con-tained factual assertions about defendant’s criminal history, but included no evidence supporting those assertions. In-stead, the opposition included only statements of fact and argument made by the prosecutor, and such statements are not evidence. (People v. Redd (2010) 48 Cal.4th 691, 727 & fn. 16, 733, 743; People v. Hamilton (2009) 45 Cal.4th 863, 928-929 [statements of counsel not evidence]; accord, Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 224 [in context of civil law and motion prac-tice, declarations referencing facts are evidence; arguments of counsel not evidence].)

Nor did the prosecution ask the court to take judicial no-tice of any court records related to the court file numbers it referenced in its written opposition. (See Evid. Code, §§ 452, 452.5.) For example, in People v. Sledge (2017) 7 Cal.App.5th 1089, 1093 (Sledge), a case involving resentenc-ing under Proposition 47, the trial court took judicial notice, at the prosecution’s request, of the entire superior court file from a prior conviction and admitted several documents from it into evidence, including a supplemental probation report. Nothing similar was done here. Although the prosecution listed case numbers, there is no indication in the record that the trial court took judicial notice of those court files on its own motion. (See Evid. Code, § 455 [requiring the trial court to inform the parties when it has taken judicial notice sua


sponte of a matter “that is of substantial consequence to the determination of the action” and afford the parties a reason-able opportunity to be heard].)8

While Proposition 64 does not define was constitutes “evi-dence” for purposes of determining whether a defendant pos-es an unreasonable risk of danger to public safety (§ 11361.8, subd. (b)(1)), under Evidence Code section 140 the term “evidence” includes “testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact.” Nothing in Proposition 64 suggests the applicable rules of evidence are any different than those which apply to other types of sen-tencing proceedings. (Sledge, supra, 7 Cal.App.5th at p. 1095 [arriving at the same conclusion regarding Prop. 47]; see also Couzens, supra, § 27.11, p. 27-34.) Examples of evidence that have been used to establish a defendant’s criminal histo-ry or disciplinary record include the following: (1) Probation reports (see Sledge, at p. 1095 [eligibility hearing under Prop. 47 is a type of sentencing proceeding where use of reliable hearsay such as that found in probation reports is permit-ted]); (2) prior preliminary hearing and trial transcripts (Hall, supra, 247 Cal.App.4th at p. 1261; see Couzens, § 25.10, p. 25-65 [discussing the eligibility finding in Prop. 47]); (3) rap sheet printouts from the California Law Enforcement Tele-communication System (CLETS) (People v. Martinez (2000) 22 Cal.4th 106, 113); (4) prison records (see Jefferson, su-pra, 1 Cal.App.5th at pp. 243-244) and Penal Code section 969b packages (Martinez, at p. 116; Couzens, supra, § 25.10, p. 25-65); (5) appellate court opinions concerning the prior convictions (Jefferson, at pp. 242-243; Couzens, supra, § 25.10, p. 25-65); and (6) other documents from the record of conviction not listed ante, which may include, the abstract of judgment, the charging document, plea form, transcripts of the petitioner’s plea, and the factual basis given for the plea. (See Couzens, supra, § 25.10, p. 25-65.) Trial courts may also consider the stipulations of the parties regarding facts underlying prior convictions. (Ibid.) No such evidence or similar sources of evidence was relied upon by the trial court here.

Accordingly, as requested by defendant, we shall remand the matter to the trial court for further proceedings. On re-mand, the parties will be allowed to present evidence to sup-port their respective positions on the question of whether de-fendant poses an unreasonable risk of danger to the public. (See People v. Barragan (2004) 32 Cal.4th 236, 239 [retrial of a strike allegation after reversal for insufficient evidence is permissible].)

8. In denying the petition, the trial court used a local form order, checking off the box marked “other” under the paragraph for the de-nial of petitions. In the space provided next to the word “Other,” it wrote: “Petitioner would pose an unreasonable risk of danger to public safety.” No reference is made on the form to the court having con-sidered any court files, other records, or any evidence whatsoever in arriving at this conclusion. It is recommended that courts using such forms consider modifying them to reflect what evidence the trial court relied upon.

DISPOSITION

The order denying defendant’s petition for resentencing under Proposition 64 is reversed, and the matter is remanded for further proceedings consistent with this opinion.

MURRAY, J.We concur: BUTZ, Acting P. J., DUARTE, J.



NATIONAL LAWYERS GUILD, SAN FRANCISCO BAY AREA CHAPTER, Plaintiff and Respondent,v.CITY OF HAYWARD et al., Defendants and Appellants.

No. A149328In The Court of Appeal of the State of CaliforniaFirst Appellate DistrictDivision Three(Alameda County Super. Ct. No. RG15785743)Filed October 26, 2018

ORDER MODIFYING OPINION AND DENYING REHEARING; NO

CHANGE IN JUDGMENTTHE COURT:

It is ordered that the opinion filed herein on September 28, 2018, be modified as follows:

1. On page 1, in the first sentence of the opinion, the words “writ of administrative mandate” are changed to “writ of mandate” so the first sentence reads as follows:1

This is an appeal from the trial court’s decision to grant the petition for writ of mandate of the National Lawyers Guild, San Francisco Bay Area Chapter (Guild), and to issue a writ directing the City of Hayward and its Chief of Police Diane Urban (collectively, City) to refund the Guild for two payments made to cover certain of the City’s costs in complying with the Guild’s requests for production under the California Public Records Act (Gov. Code, § 6250 et seq.) (CPRA).

2. On page 15, the last full paragraph of the opinion imme-diately preceding the disposition, beginning “Accordingly, we conclude based on the language of the statute” and ending “computer programming in the form of the Windows Movie Maker software,” is modified to read as follows:

Accordingly, we conclude based on the language of the statute, the legislative history, and policy considerations that the costs allowable under section 6253.9, subdivi-sion (b)(2) include the City’s expenses incurred in this case to construct a copy of the police body camera video recordings for disclosure purposes, including the cost of special computer services and programming (e.g., the Windows Movie Maker software) used to extract ex-

1. Footnote 1 remains in place at the end of the first sentence of the opinion, unchanged.

empt material from these recordings in order to produce a copy thereof to the Guild. We thus remand to the trial court to conduct a further evidentiary hearing with re-spect to precisely which costs, among those billed to the Guild, the City is entitled to recover under this provision.

There is no change in the judgment.Respondent’s petition for rehearing is denied.

POLLAK, J., Acting P. J.

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