OFFICIAL PUBLICATION OF THE SAN JOSE POLICE … PUBLICATION OF THE SAN JOSE POLICE OFFICERS' ASSOCIATION Volume 46: No. 1 • January 2018 HAPPY NEW YEAR! From All At The POA HAPPY

OFFICIAL PUBLICATION OF THE SAN JOSE POLICE OFFICERS' ASSOCIATION Volume 46 : No. 1 • January 2018

HAPPYNEW YEAR!From All At The POA

HAPPYNEW YEAR!From All At The POA

COUPLES/FAMILIES:IMPROVEYOURCOMMUNICATIONANDBREAK

OLDPATTERNSSJPD MHN Benefits

MHN: 888.800.0059 to authorize sessions

Carson Bowman, L.M.F.T.Licensed Marriage & Family Therapist

Cell. 408.687.5593 (text/call)www.carsonbowman.com

116 E. CAMPBELL AVE., SUITE #1,CAMPBELL, CA 95008

VANGUARDOfficial Monthly Publication Of TheSan Jose Police Officers’ Association

02 January 2018 VANGUARD

Copyright: All rights are reserved and no part, text, or picturesmay be reproduced without written permission. No responsi-bility whatever is assumed by the VANGUARD or the San JosePolice Officers’ Association for unsolicited material. Membersor readers submitting letters to the editor are requested to ob-serve these simple rules:• Address letters to: The Editor,1151 North Fourth St., San Jose, CA 95112or Email to: [email protected]

• Unsigned letters and/or articles will not be used.• Unsolicited articles and letters may not exceed 500 words.• Writers are assured freedom of expression within necessarylimits of space and good taste.

• Please keep letters and/or articles legible.• The editor reserves the right to add editor’s notes to any let-ters submitted if necessary.

• Deadline: 15th of each month.The VANGUARD is the official publication of the San Jose Po-lice Officers’ Association. However, opinions expressed in theVANGUARD are not necessarily those of the San Jose PoliceOfficers’ Association, and/or the San Jose Police Department.Check out our web site: www.sjpoa.com

The Truth Is Its Own DefenseP.O.A. Tel: 408.298.1133 or x4012 Fax: 408.298.3151Editor/Assistant Admin. Art Director/Publisher:Advertising/Graphic Design Christopher EllimanNicole Decker [email protected]@sjpoa.comExecutive Director: Administrative Assistant/Joanne Segovia Member [email protected] Maryanne Babiarz

[email protected]

Meeting Dates For 2018:January 9, Tuesday 0730 hrs. February 6, Tuesday 0730 hrs.March 6, Tuesday 0730 hrs. April 3, Tuesday 0730 hrs.May 1, Tuesday 0730 hrs. June 5, Tuesday 0730 hrs.July 10, Tuesday 0730 hrs. August 7, Tuesday 0730 hrs.September 4, Tuesday 0730 hrs. October 2, Tuesday 0730 hrs.November 6, Tuesday 0730 hrs. December 4, Tuesday 0730 hrs.POA Christmas Open House: Thursday, December 20thSanta at the POA: Fri., Dec. 7th & Tues., Dec. 11thThis schedule is subject to change, please contact the POA office forconfirmation of dates and times.

VANGUARD January 2018 03

SAN JOSE POLICEOFFICERS’ASSOCIATIONBoardOfDirectors

Director

Rick [email protected]

Director

David [email protected]

Director

Edward [email protected]

Director

President

Paul [email protected]

C.F.O.

Franco [email protected]

VP

J. [email protected]

Director

Joaquin [email protected]

Director

Dave [email protected]

Director

Anthony [email protected]

Legal Counsel

Gregg [email protected]

Director

Sean [email protected]

Director

Greg [email protected]

Ted [email protected]

Director

Steve [email protected]

Director

Jose [email protected]

Director

C. [email protected]

President’s Message:The Truth About Proposition 47 06

Training Bulletin:2018: Negotiations, Study Sessions,Elections, And More 08

C.F.O.’s Report 12

Insurance News:Beneficiary Review 14

Training Bulletin:Officer Safety Is Not A “Thing” 16

Financial Securities:How To Be Financially Fit in 2018 20

Healthy Living:Yodi And Yogi 22

An Ounce Of Prevention 23

Wildfire Inside Of You 24

Real Estate Perspective:The End Of 2017 28

Reliable Informer 30


VANGUARDContents:

Legal DefenseFund ReportFranco Vado, LDF Administrator

Requests: 12Approved: 12Denied: 0Board Representative: 12Attorney Request: 0THIS IS A SYNOPSIS OF LDF TRUSTEE ACTIONS FOR

the month of October 2017. Due to an individual's rightof privacy, specific details of LDF cases cannot be revealedby your LDF Trustees without written authorization fromthe involved member.Your Legal Defense Plan provides you with legal serv-

ices for acts or omissions arising in the course and scopeof your employment as a San Jose Police Officer. Be ad-vised that incidents which arise while you are performingduties associated with off-duty employment are excludedfrom coverage under the Plan.



the early release of inmates convicted of these crimes.• Reform the parole system to stop the early release ofviolent felons, expand parolee oversight, and strengthenpenalties for parole violations.

• Reform theft laws to restore accountability for serialthieves and organized theft gangs.

• Expand DNA collection to include those convicted ofdrug, theft, domestic violence, or other serious crimesto help solve rape, murder and other violent crimes –and to exonerate those wrongly accused.

Please go to www.KeepCaliforniaSafe.org to learn moreabout this initiative and visit the facebook page of the Cali-fornia Public Safety Partnership to like and share the goodwork they are doing to close the revolving door created byProposition 47.

Editor’s Note: Please send any comments to Paul Kellyat: [email protected]

“The SJPOA will be sup-porting the Reducing Crimeand Keeping California Safe Actof 2018. This initiative willclose many loopholes createdby the passage of Proposition47 that allow our currentcriminal justice system tonegatively impact neighbor-hood safety.”

As 2017 closes, there is a new awaken-ing to the fact that recent criminal jus-tice reforms were sold to Californiansunder the guise of keeping us safer. Thesereforms duped the public and as one Su-preme Court Justice wrote in a dissent-ing opinion in People v. Valencia, “Thecourt today concludes that the draftersof Proposition 47 pulled a fast one on anuninformed public.” They sure did!

President’s MessagePaulKelly

THE ISSUE OF PEOPLE V. VALENCIA WAS FROM “THREEstrikers” who wanted to petition the court for early releaseunder the provisions of Proposition 47. The convicted in-mates argued that the language in the proposition shouldapply to them.The Supreme Court wisely rejected this argument and the

majority concluded that “…neither the initiative’s text norits supporting materials describe any intention to amend thecriteria for the resentencing of recidivist or violent felons…” The SJPOA will be supporting the Reducing Crime and

Keeping California Safe Act of 2018. This initiative will closemany loopholes created by the passage of Proposition 47that allow our current criminal justice system to negativelyimpact neighborhood safety. The initiative will:• Reclassify currently “non-violent” crimes like: rape ofan unconscious person, sex trafficking of a child, and14 other serious crimes as “violent”, which will prevent

WWW.SJPOA.SHUTTERFLY.COM

The Truth AboutProposition 47


I LOVE A COP*

Lois-Wilco-Owens, L.M.F.T.LICENSED MARRIAGE & FAMILY THERAPIST

Serving The San Jose PoliceDepartment since 1993.

Specializing in dealing with policeofficers and their families.

Tel: [email protected]

2461 Marsha Way, San Jose, CA 95125

FULL INSURANCE COVERAGETHRU MHN

*Please Note, I am not the author of the book with this title.

v


war drums again on pensions. In September 2017, Paul andI went to a pension symposium that was hosted by StanfordUniversity and Joe Nation. It was a very interesting presen-tation to say the least. Also coming up in the March 2018 shift change will be

the implementation of the yearlong shift change. BFO ad-ministration has been working on a program that will have1/3 of the patrol division switching at bid time. We will beworking with the chief’s office and BFO administration tomake it a smooth a transition. We will be getting the second portion of our raise in July

2018. The raise will be a 6% increase; 3.25% general wageincrease will be pensionable, and 2.75% will be for CrisisIntervention Training (CIT), which is not pensionable. Thedepartment will be establishing a list for all rank and file toreceive the CIT pay increase per the MOA. As you know,Chief Eddie Garcia has expressed to the POA that it is hisgoal to have every member of this department trained in CIT. As you can see, there’s another busy and productive year

coming up for your POA. Stay safe.

Editor’s Note: Please send any comments to JohnMoutzouridis at: [email protected]

“On Tuesday, January 16th,2018, the San Jose City Coun-cil will be conducting a studysession to see if they need toexpand the authority of theIndependent Police Auditor(IPA). I’m sure there have beena lot rumors flying around. Wecan confirm the IPA wants moreoversight, but in what areas isstill unknown. We will be ac-tively involved and keeping aclose eye on the process.”

Second Chair’s ViewJohn Moutzouridis

AS FOR NEGOTIATIONS, WE WILL BE FINISHING UPour Article 39 policy for our injured co-workers. Obviously,we have been meeting with the city over the last couple ofmonths, but we have also met with the injured to get theirpoint of view. We are trying to make Article 39 a better pro-gram for our officers, so they can get healthy and back onthe streets. We will be getting back to work on the ‘Body Worn Cam-

era’ policy (BWC). As you know, when we completed ourfirst policy a couple years back, both sides agreed to comeback and do some clean up on the language when the timewas right. The policy is set, but we will be revisiting somekey issues that have come up in past discussions.On Tuesday, January 16th, 2018, the San Jose City Coun-

cil will be conducting a study session to see if they need toexpand the authority of the Independent Police Auditor (IPA).I’m sure there have been a lot rumors flying around. We canconfirm the IPA wants more oversight, but in what areas isstill unknown. We will be actively involved and keeping aclose eye on the process. 2018 is an even year, which means election season is right

around the corner. Our local election cycle will bring amayor’s campaign, as well as campaigns for city council,supervisors, and sheriff. There will also be state and con-gressional races gearing up. In the months to come, we willbe meeting with candidates that will be seeking our endorse-ment. We will be vetting them thoroughly. We will keep youinformed every step of way.As we told you before, Chuck Reed has started to beat the

2018: Negotiations,Study Sessions, El-ections, And More

2017 was a busy year for the San JosePolice Officers’ Association, and 2018will be no different. There will be nego-tiations, study sessions, elections, andmaybe some ballot measures state-wide.

How do you stayconnected?

FacebookProtect San Jose

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youtubeSan Jose POA

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Shutterfly: www.sjpoa.shutterfly.com

linked inSan Jose Police Officers' Association

twitter@ProtectSanJose

pinterestSan Jose Police Officers' Association

instagramProtectingSanJosesFinest

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google+San Jose POA





the correct rate. federal law Cto must be paid out at the“regular rate of pay” which is a rate that counts most pre-mium pays. Gregg told the membership that we are work-ing with the City on this and the City agreed to sign a tollingagreement to be sure that you are being paid at the correctrate.

Editor’s Note: Please send any comments toFranco Vado at: [email protected]

Door PrizesVendor: Prize: Name:Golden Harvest $50 Cash Ken DavisCateringJohn Nguyen

Derendinger $50 Gift Card Tim StevensInsurance Rosie’sMarc Derendinger

Intero Realty All American Manual SermantoJeff Enzlen Plaque

Messing, Adam $25 Gift Card Simeon Merid& Jasmine PeetsGregg Adam

SFPOA $25 Gift Card Javier AcostaCredit Union AmazonWendy Shipley

SJPOA $50 Gift Card x3 Jason CookDry Creek Grill Todd Guadin

Calvin Phan

SJPOA $50 Gift Card x3 Keith NumerWillard/Hicks Chris Weber

Ramon Macias

DECEMBER 5, 2017

San Jose Police Officers’Association Meeting Notes

Membership MeetingPresident Paul Kelly started off the meet-ing by welcoming the two new Direc-tors elected to the Board, Cat Alvarezand Jose Martinez. He also thankedRob Imobersteg for his years of serviceon the board and wished him well onhis new endeavors.

C.F.O.’s ReportFrancoVado

President Kelly then sPoKe about the use offorce policy; we will be working with the Chief’s office tocome up with a policy we can both live with.

President Kelly and Vice President John Moutzouridis spokeabout our first annual blue Christmas toy drive. We havehad great participation and support. our board of directorswill be delivering the majority of the packages on Christmaseve day.

President Kelly and executive director Joanne segoviapresented Chaplain Jim becknall and Chaplain bryan allenwith a check for $25,000 from proceeds from this year’sgolf tournament. this is the most money that has ever beenraised by the golf tournament.

Joanne segovia talked briefly about the budget and thatwe are looking better than we have in a long time. there isstill a long way to go, but with more members, it is a goodstart. President Kelly asked for a vote from the membershipin attendance. there was a motion made by eddie Chanand seconded by sean Pritchard to accept the budget. thebudget was approved by a unanimous vote.

Legal Update: GreGG adaM talKed about the issues With flsa.

there are many cases where the City has not been paying



How it works: if you die while the primary Beneficiary isstill living, the primary Beneficiary (or Beneficiaries) will re-ceive 100% of the policy benefits, and the contingent Ben-eficiary will receive zero benefits. remember, thecontingent Beneficiary is a “back-up” beneficiary, in theevent your primary Beneficiary predeceases you. you arenot required to designate a contingent Beneficiary. it isalso acceptable to name more than one primary Benefici-ary by listing each name, with the corresponding amountof insurance. For example:

John Smith, Brother, born March 21, 1963- $50,000 andSally Smith, Sister, born August 1, 1959- $100,000. if Beneficiaries are receiving equal amounts, then you may

state “equal shares” after their names. avoid naming minor children as primary Beneficiaries

(or contingent Beneficiaries). this leads to all types of prob-lems, as the insurance company will not pay death benefitsto a minor. your survivors may be required to go to courtto sort it out, delaying access to much needed funds.

Additional SJPOA Benefit– Life Services Toolkit

sJpoa memBers have special online tools anD

BeneficiaryReview

Failure to pay attention to your liFe insurancebeneficiary designation creates problems for your survivors.since 1968, our insurance office has handled many poadeath claims, and seen some unfortunate cases of policybenefits paid to unintended recipients, e.g. old and longforgotten girlfriends, boyfriends, former spouses (even thewrong former spouse), and so on.

a simple tool can organize the process. prepare a registeror list for your survivors, which will serve as a quick refer-ence in future years:

• list insurance policies separately, 1, 2, 3, by row. • add a column, titled Beneficiary Designation and re-

cord the last update for each life insurance policy orother financial instrument.

• if you are not sure, then submit a new one (it won’t hurt).remember, these policies and accounts have separatelife insurance beneficiary forms. request and updatethem!

• also include columns for Face amount, insurer name,policy no., and policy Date.

…remember to check this list annually.

Sample Beneficiary Form When completing the sJpoa iBt BeneFiciary

change Form, you have the option to designate two sepa-rate types of beneficiary designations:

1). Primary Beneficiary name 2). Contingent Beneficiary name

The first of every year is a perfect timeto review your Life Insurance Benefici-ary Designation(s). This includes theSJPOA Insurance & Benefits Trust, CityHuman Resources Department, Retire-ment Services, and perhaps some pri-vate insurance policies.

Insurance NewsMarcF.Derendinger

“Failure to pay attention toyour life insurance beneficiarydesignation creates problemsfor your survivors. Since 1968,our insurance office has han-dled many POA death claims,and seen some unfortunatecases of policy benefits paid tounintended recipients, e.g. oldand long forgotten girlfriends,boyfriends, former spouses(even the wrong former spouse),and so on.”


services that can help you create a will, make advance fu-neral plans and put your finances in order. The Life ServicesToolkit is automatically available to participants in the SJPOAInsurance & Benefits Trust, just another benefit of SJPOAmembership.

To access these services, visit the Life Services Toolkitwebsite at www.standard.com/mytoolkit and enter theusername, “assurance.” Reminder: SJPOA members have access to a free insurance

check-up through the Derendinger Insurance Agency inwest San Jose. Family changes, a new mortgage, and youngchildren are all good reasons to review your coverage needs.We suggest a separate check-up when you reach your early50’s, in order to learn which SJPOA coverages follow youinto retirement.

Be in charge of your plan: Review your life insurancebeneficiaries every year!

Follow Us: https://twitter.com/DerendingerIns

Editor’s Note: Derendinger Insurance has served asSJPOA insurance broker since 1968, and offers free as-sistance to SJPOA members at 408.252.7300. Or viaemail at [email protected]


• Prior contactº Prior contact where suspect was armedº Prior contact where suspect resistedº Prior contact where suspect fled

• Location plus something elseº Multiple individualsº Night time with no back-up close

Handcuff During a Detention does not constitute arrest. Again, you need a reason because handcuffing during a

detention is not standard operating procedure. Must be briefand reasonably necessary. TELL the suspect s/he is not underarrest but merely detained. Some examples of articulable facts to justify handcuffs

during a detention:• Suspect was verbally abusive to officer;• Suspect refused to remove hands;• Suspected of violent crime;• Intoxicated and would not follow direction;• Officer alone, late at night;• Officer alone, outnumbered by suspects;

“When you detain a suspect,ARTICULATE why. If you patsearch a suspect, ARTICULATEwhy. If you handcuff a suspectduring a detention, ARTICU-LATE why. If you fail to do so,welcome to a motion to sup-press, where hopefully you willremember the facts that ledyou to take the steps you did.”

Reasonable SuspicionREMEMBER, REASONABLE SUSPICION IS LOWER THAN

probable cause – the information can be less reliable andmore than that needed for probable cause. Bottom line, rea-sonable suspicion will exist if you can articulate one or morecircumstances that based on your training and experienceand based on common sense that criminal activity is afoot.It has to be more than a hunch but it can be otherwise in-nocent behavior that can lead you to reasonable suspicion.

Officer SafetyTHE UNITED STATES SUPREME COURT HAS HELD THAT

officer-safety concerns are legitimate and weighty due toofficer’s vulnerability. Some circumstances that the Courthas upheld detentions: • Suspect may have committed a violent felony;• Matches description• Running and hiding;• Conduct – refusal to follow commands

º Jitteryº Nervousº Won’t show hands

Officer Safety Is Not A “Thing”

Officer safety is not a “thing.” Officersafety is everything for you as an of-ficer and is the justification for almostall of your actions in the field. It is nota legal justification by itself, to do any-thing in the field. If you want to bulletproof your stops and searches remem-ber to document and testify to ARTIC-ULABLE FACTS. If you write in yourreport that you stopped or pat searchedsomeone for “officer safety,” welcome toa motion to suppress.

TrainingBulletinThird DegreeCommunications:

Charles Gillingham


• Reasonable belief that suspect is armed;• Suspect keeps reaching inside clothing;• Appears ready to flee;• Tenses up when touching suspect;• Suspect transported to another location, ie, a show upWhen you detain a suspect, ARTICULATE why. If you patsearch a suspect, ARTICULATE why. If you handcuff a sus-pect during a detention, ARTICULATE why. If you fail to doso, welcome to a motion to suppress, where hopefully youwill remember the facts that led you to take the steps youdid. Be safe.

Editor’s Note: This article was presented by The Prin-cipals of Third Degree Communications, Paul Francoisand Enrique Garcia. Tel. 866.766.7575 Email. [email protected] or visit www.tdcorg.com

VisitProtectSanJose.comRegularly for the latest Public Safety News


Visit ProtectSanJose.comRegularly for the latestPublic Safety News



we want (even ourselves). Keep these simple budgeting tipsin mind to have a successful plan.• Create a spreadsheet: Spreadsheet is very helpful fortracking monthly spending habits. It can even be an in-sight as to what you are spending the most on monthto month.

• Don’t be afraid to ask for help: We recommend thatyou have a partner while trying to budget, whether it bea family member, friend, significant other or wealth man-ager. You should have someone who is going to haveyour needs in mind and that wants to see you succeed.

Workout 3:Build Up SavingsYOUR SAVINGS ACCOUNT IS YOUR SAVING GRACE

when an emergency comes underway. Although it is onlythe beginning of the year, you never know what is going tohappen. It is important that you continue to build youremergency funds. Need help finding where to start? Seebelow.• Know all your options: When starting an appropriatesavings account, you will be hit with a lot of optionsand each may sound just as good as the next. But thereare bad savings plans, some where your money is notliquid, or you can’t access it until a certain age. We rec-ommend going to someone who knows all the optionsand that can help guide you to the right decision.

• Monitor your savings: A good savings account growswith you. You always know how much money is in yoursavings account. Sitting down with a wealth managercan help you understand how much your money willgrow over certain points in your life.

Note: Here at Liquid Equity Partners we are committedto keeping you financially fit. Our team only has one goal,and that is to see you succeed in everything that you do.We are here to help you develop an account that will bethere to help you in the event of an emergency and afterthat. Have a question? Contact Duc Quach at [email protected] or 925.587.3204. Visit our website atwww.liquidep.com

How To Be Financially Fit In 2018

Financial SecuritiesJohn Montoya DucQuach

Workout 1:Leaning Out Your DebtSTARTING OUT THE YEAR WITH DEBT SHOULDN’T

put you down. Many individuals struggle with debt, but thekey is to know what are the best steps to consolidate yourdebt. Give these few tips a try.• Automatic debt payments: Automatic payments ensurethat you will never miss a payment. Also, it helps yoube accountable of your money. It is easier to choose notto go to the bank to make a payment than to cancelautomatic payments.

• Be realistic about your debt: Sometimes although weknow we have debt, we don’t know the exact amount.We have a general idea and we know we have debt be-cause they keep taking the payments, but having theknowledge about how much you need to pay off canallow you to handle your debt better.

Workout 2:Work Out Your BudgetSOMETIMES THE WORD BUDGET CAN SEEM A BIT

scary, we don’t want anyone telling us we can have what

New year is here and the need to be ina good financial standing is more im-portant than ever. Although achievingfinancial stability is on nearly everyone’snew year’s resolution lists, only a smallpercent of individuals acts upon theirlists. Because of that, we decided to giveyou guidelines on how to become finan-cially fit for 2018. We know how impor-tant your finances are to you, so we wantto make sure that your money is going tobe there when you need and when yourfamily needs it.



Healthy LivingSan Jose Chiropractic Center

In the film classic "The Empire StrikesBack," the iconic Jedi master Yoda in-scrutably refers to "the Force" duringtraining sessions with his disciple, LukeSkywalker. Yoda informs Luke that he"must feel the Force around you." Yodahimself is frequently seen assuming whatmay only be described as intergalacticyoga poses. Elsewhere in the film, Lukeoffers this Jedi-type benediction to thedeparting Lando Calrissian and Chew-bacca, the Wookiee: "May the Force bewith you." The Force, whether we con-ceive of it as a benevolent intelligenceor a life-sustaining and life-affir mingenergy field, is all pervasive and onlyto be ignored at our peril.

Yoda And Yogi “Regular chiropractic carehelps us get the most out ofour yoga practice as well asall other forms of exercise.Regular chiropractic carehelps make sure our spine isaligned and that all the spinalvertebras, spinal joints, andspinal muscles and ligamentsare working properly andeffectively.”

EVEN IF WE CONSIDER THE FORCE MERELY META-phorical, we can still take action to enhance our connectionto the life-sustaining forces in and around us. Taking care ofour bodies is an important part of accomplishing this goal.We do this by engaging in healthy lifestyle behaviors andchoices, of which eating a nutritious diet, performing 30 min-utes of vigorous exercise five days a week, and getting suf-ficient restful sleep at night are the three primary endeavors.In the realm of exercise, the key is not so much the spe-

cific type of physical activity, but the fact that you're doingexercise itself. The short- and long-term benefits derive fromthe consistency of your efforts, that is, your ongoing com-mitment to and accomplishment of the above mentioned30 minutes of vigorous exercise five days a week. Naturally,we'd like to obtain the maximum advantage from the timewe're spending exercising. Yoga is one exercise format thatprovides a substantial return in multiple areas, includingcardiovascular, strength, and endurance benefits. For ex-

ample, over time, practicing yoga can help lower your heartrate and blood pressure, lengthen and strengthen large mus-cle groups, and improve balance and concentration.Regular chiropractic care helps us get the most out of our

yoga practice as well as all other forms of exercise. Regularchiropractic care helps make sure our spine is aligned andthat all the spinal vertebras, spinal joints, and spinal musclesand ligaments are working properly and effectively. By de-tecting and correcting sources of nerve interference that in-terfere with function and mobility, regular chiropractic carehelps us stay well, perform at our physical optimum, andobtain the greatest benefit from our healthful lifestyle ac-tivities. In this way, regular chiropractic care helps improveour overall health and well-being and that of our familiesnow and in the years to come.

Resources:• Wieland LS, et al: Yoga treatment for chronic non-specific lowback pain. Cochrane Database Syst Rev 1:CD010671, January12, 2017; doi: 10.1002/14651858.CD010671.pub2

• Jahdi F, et al: Yoga during pregnancy: The effects on laborpain and delivery outcomes (A randomized controlled trial).Complement Ther Clin Pract 27:1-4, 2017

• Bridges L, Sharma M: The Efficacy of Yoga as a Form ofTreatment for Depression. J Evid Based Complementary Al-tern Med 1:2156587217715927, January 1, 2017; doi:10.1177/2156587217715927

and experience the sensation of being sick and tired of be-ing sick and tired. On that day, such a person will have theimmediate realization of the great value to be obtained intaking care of oneself, despite the short-term costs of timeand effort. These “aha moments” are the inspiration for manyto adopt and maintain a range of healthy lifestyles, with theresult of long-term health, happiness, and well-being.

Resources:• Kang DW, Lee J, Suh SH, et al: Effects of Exercise on Insulin,IGF-axis, Adipocytokines, and Inflammatory Markers in BreastCancer Survivors: A Systematic Review and Meta-Analysis.Cancer Epidemiol Biomarkers Prev 26(3):355-365, 2016

• Hayes BD, Brady L, Pollak M, et al: Exercise and ProstateCancer: Evidence and Proposed Mechanisms for Disease Modi-fication Cancer Epidemiol Biomarkers Prev 25(9):1281-1288,2016

• Micha R, Peñalvo JL, Cudhea F, et al: Association BetweenDietary Factors and Mortality from Heart Disease, Stroke, andType 2 Diabetes in the United States JAMA 317(9):912-924,2017 Reflex sympathetic dystrophy (CRPS) (ICD9 337.2):26visits over 16 weeks Arthritis (ICD9 715): 9 visits over 8 weeks


An OunceOf Prevention

“In the case of achievingwellness, most people areaware of the need for goodnutrition and regular exer-cise. But even with this aware-ness, many people persist inavoiding taking the time todo the things they need to doto retain and maintain ro-bust good health.”

Everyone knows the old adage that de-clares "an ounce of prevention is wortha pound of cure." This time-honored wis-dom certainly makes sense. We wouldn'twait until we were riding on the wheelrim before we repaired a leaking auto-mobile tire. We wouldn't wait until therewere obvious signs of termite damage toour home before calling in the pest con-trol experts. But, in contrast, many ofus fail to implement the same kinds ofstraightforward preventive measures tohelp ensure appropriate levels of physi-cal fitness and ongoing good health.

THE MAIN PROBLEM WITH PREVENTIVE MEASURES ISthat they consume time. The adage, however, implies thatmuch more time will be spent, as well as financial resourcesthat could be better directed toward other projects, in tryingto cure damage, illness, or disease that would likely havebeen prevented by consistently taking a few necessary steps.In the case of achieving wellness, most people are aware ofthe need for good nutrition and regular exercise. But evenwith this awareness, many people persist in avoiding tak-ing the time to do the things they need to do to retain andmaintain robust good health.

What is missing is the commitment to be the person whoaccomplishes such goals. Change comes from within, as isasserted by another well-known aphorism. In order to takeon meaningful change, despite the implication that there isgoing to be a certain expenditure of time and some incon-venience, the value of the activity needs to outweigh thecosts. This means a person needs to be willing to authenti-cally choose to take long-term actions in the areas of healthyeating and exercise. Sometimes it takes a wake-up call toget going, but it's much better, in the context of “an ounceof prevention,” to start to make things happen before a realproblem develops.

Many people will persist in their habits and resist the self-creation of more healthy lifestyles, as demonstrated by theongoing worldwide epidemics of obesity and type 2 diabetes.But many others will one day get out of bed in the morning

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months or even years, with the intention of helpingus obtain better overall health. When the time comeswhen we begin to realize how valuable good healthactually is, we will discover for ourselves the valueand importance of regular chiropractic care. We willthen want to sure that we're getting the most out ofour good nutritional practices and the time spent en-gaging in regular exercise, and we will find that reg-ular chiropractic care helps us do so. By detectingand correcting spinal misalignments and optimizingfunctioning of the nerve system, our body's mastersystem, regular chiropractic care helps us achieveour goals of long-term health and wellness.

Regular Chiropractic CareAnd Healthy LifestylesANOTHER WELL-WORN YET STILL MEAN-

ingful adage is "If it's going to be, it's up to me." Al-though friends may tell us what they think we shoulddo, and loved ones may attempt to instruct us inhopes of bettering our welfare, most of us have afairly ingrained resistance to following the recom-mendations of others if those recommendations did-n't match up with our own already developed plans.It may be that many friends and loved ones have

recommended regular chiropractic care to us over

WildfireInside Of You

Comparisons between the inner worldand the outer world have been frequentlydrawn by philosophers, nature writers,and visual artists. For example, "seeingthe universe in a grain of sand" is a well-known aphorism. The number of neu-rons in your brain has been comparedto the number of stars in the Milky Way.The golden ratio (1.618), derived fromthe Fibonacci sequence, is demonstratedin flower petals, pine cones, nautilusshells, and human DNA. In this samemanner, another comparison may bemade between wildfires and our inter-nal system of fires known as inflam-matory processes.

THESE INFLAMMATORY PROCESSES ARE UNLEASHEDby the immune system in response to a real or perceivedattack by foreign cells and foreign proteins. This responseincludes destroying cells that are recognized as "non-self,"such as microbes but including malignant cells and virusinfected cells. Additionally, the immune response involvesthe release of cell signaling molecules (cytokines) that fa-cilitate cell-to-cell communication. This signaling network

modulates the immune response, heightening or diminish-ing the course of inflammation as needed. Problematically,certain inflammatory processes may be extended unneces-sarily or inappropriately, as in anaphylactic shock. Suchout-of-control inflammation may be likened to destructiveforest wildfires.Inflammatory processes may also affect joints of the neck,

low back, hip, knee, and ankle. Inflammation of a joint istermed osteoarthritis, a painful disorder which also maycause redness, increased warmth, and swelling. Joints af-fected by osteoarthritis tend to develop limited mobility anduse of these structures may become quite difficult over timeowing to pain and decreased motion.

“Inflammatory processesmay also affect joints of theneck, low back, hip, knee, andankle. Inflammation of a jointis termed osteoarthritis, apainful disorder which alsomay cause redness, increasedwarmth, and swelling. Jointsaffected by osteoarthritis tendto develop limited mobility anduse of these structures may be-come quite difficult over timeowing to pain and decreasedmotion.”

Osteoarthritis is not necessarily abnormal and may occuras a result of daily physiological weight-bearing forces. But,as osteoarthritis may cause pain and debility, we could andshould employ preventive measures to counter these de-generative processes (processes involving breakdown of tis-sues). One of the most effective proactive and protectivemethods to prevent or delay the onset of osteoarthritis isregular vigorous exercise. Physical activities including walk-ing, running, biking, and strength training teach the bodyhow to handle mechanical loads. By training the muscu-loskeletal system and other connective tissues, physical act-ivity helps to build up "resistance," in a sense, to the degen-erative forces of osteoarthritis. In this way, regular vigorousphysical activity helps us to continue to be healthy and wellover the course of a lifetime.

Additionally, regular chiropractic care supports our long-range goals of vibrant good health. Regular chiropractic carehelps our nerve system to be free of interference and func-tion at peak levels of performance, and helps to optimizeour spinal mechanics. By providing these benefits, regularchiropractic care helps us get the most out of the time wespend exercising and achieve greater good health today andinto the future.

Resources:• Hügle T, Geurts J: What drives osteoarthritis?-synovial versussubchondral bone pathology. Rheumatology (Oxford) 56(9):1461-1471, 2017

• Lambova S: Exercise programmes for osteoarthritis with dif-ferent localization. Curr Rheumatol Rev 2017 Aug 10. doi:10.2174/1573397113666170810153808. [Epub ahead of print]

• Kirihara RA, et al: Intensity, duration and type of physicalactivity required to improve function in knee osteoarthritis.Acta Ortop Bras 25(1):25-29, 2017

Editor’s Note: This article was provided by San JoseChiropractic Center. They can be reached by phone at:408.371.0260, fax: 408.371.2612. San Jose ChiropracticCenter is located at: 3880 So. Bascom Ave., Suite 109,San Jose, CA. www.sjchiropractic.com


POST CertificateRequirementsBasic

• Successful completion of the PoliceAcademy.

• 1 year police service.

Intermediate(5% incentive pay)

• 4 years of law enforcement experiencewith an Associate Degree.

• 2 years of law enforcement experiencewith a Baccalaureate Degree.

Advanced(2.5% incentive pay)

• 9 years of law enforcement experiencewith an Associate Degree.

• 6 years of law enforcement experiencewith a Baccalaureate Degree.

• 4 years of law enforcement experiencewith a Master Degree.

* Please submit your paperwork to the Training Unit 60days in advance of your anniversary date. Officers shouldhave copies (not originals) of college degrees, transcriptsand/or any course certificates on file as part of their train-ing files. These documents need to be attached to POSTcertificate applications.




18.6 percent to $1,242,500, sales fell 5.7 percent. Homestypically sold there in nine days. In San Mateo County, wherethe median climbed 12.8 percent to $1,522,500, sales drop-ped 2.3 percent, with homes spending 11 days on market.On an annual perspective, sales are predictably thinning

out as we head toward the end of the year. This is typical asSellers are less willing to make changes or want to moveduring the Holidays. Another interesting fact – San Francisco had the state’s

highest price per-square-foot in October: $946. Next high-est was San Mateo County ($888), followed by Santa ClaraCounty ($703). The best per-square-foot bargains were to behad in a trio of Central Valley counties: Kern ($133, lowestin the state), Glenn ($134) and Kings ($137).One thing is for sure – it’s still a Seller’s Market in our part

of the Country!

Editor’s Note: Article brought to you by Karen Nelsen,GRI REALTOR® Intero Real Estate Services, 175 EastMain Avenue, Suite 130 Morgan Hill, CA 95037.Office: 408.778.7474 Cellular: 408.461.0424Email: [email protected] License: 00891921

“We don’t have any inventory!” It’s acommon disclaimer today, by Realtorsall over the Bay Area. A fact backedeven further by a recent study done byCAR (California Association of Real-tors) showing the number of availablelistings in the Bay Area is down fromlast year at this time. This is definitelyadding to the steady increase in the priceof homes and making counties outsidethe main pulse of the Bay Area, a goodsecond option to consider. According toCAR, the median sale price of a single-family home in the region was $892,720,up 11.1 percent from October 2016.

The End Of 2017

Real Estate PerspectiveKarenNelsen

WHAT’S AMAZING IS THAT THE NUMBER OF HOMESsold actually increased despite the declining number of list-ings. It didn’t increase by much – just 0.5 percent year-over-year. True, it wasn’t much of a gain but it just goes to showhow much competition there is for available housing in theBay Area. In some counties, the sales gain was even greater.In Alameda County, where the median price of a single-

family home rose 11.3 percent year-over-year to $862,450,sales surged 12.2 percent. In Contra Costa County, wherethe median rose 14.8 percent to $615,000, sales rose 6.1percent. In San Francisco, where the median climbed 13.3percent to $1,594,000, sales were up 2.7 percent.The increases in prices may seem low but with relevance

to the number of sales, they are considerable. The numberof days a listing spends on the market is decreasing also, duemostly to the incredible competition for Buyers wanting tostay in the Bay Area, close to work. In Alameda County, forexample, homes spent 13 median days on market, com-pared to 15 a year earlier.In some counties, there just isn’t any relief at all. For in-

stance, in Santa Clara County, where the median price rose

“What’s amazing is that thenumber of homes sold actu-ally increased despite the de-clining number of listings. Itdidn’t increase by much – just0.5 percent year-over-year.True, it wasn’t much of a gainbut it just goes to show howmuch competition there is foravailable housing in the BayArea. In some counties, thesales gain was even greater.”



A Peace Officer Who Located A SuspectedNarcotics Cutting Agent During A VehicleStop Was Justified In Removing A LooseDashboard Panel

When a peace officer conducts a vehiclestop and locates evidence consistent withthe presence of narcotics, the officer like-ly will suspect that narcotics may bepresent in locations inside the vehicle.Under what circumstances may the of-ficer look into hidden locations wherenarcotics may be secreted?

Reliable InformerLanceBayer

In this month’s issue of The Reliable Informer, I will cover two cases, one decided by the California SupremeCourt and one decided by California Court of Appeal. These cases look at the law relating to warrantless vehi-cle searches and the crime of misdemeanor auto theft.

RECENTLY, THE SIXTH DISTRICT OF THE COURT OFAppeal looked at that question in the case of People v. Za-bala (2017) Cal.App.5th .In the Zabala case, Deputy Grant Dorsey of the Santa

Clara County Sheriff’s Office was on duty. Deputy Dorseyresponded to the scene of a traffic stop after a suspect iden-tified as Saul Zabala was observed committing a traffic of-fense. The deputy who made the stop also discovered thatZabala had been driving on a suspended driver’s license.The deputy determined that the vehicle should be impoundedand she searched the interior of the vehicle pursuant to theimpound. During that search, the deputy located four bluebaggies filled with a white substance in a paper bag underthe driver’s seat.The deputy showed the baggies to Deputy Dorsey, who

was in the process of searching the passenger’s side of theinterior. Deputy Dorsey had been trained in recognizing howillegal drugs are packaged and transported. Based on histraining and experience, he knew that persons who possessillegal drugs or cutting agents will often have additional bags

hidden in their vehicles. Deputy Dorsey concluded that thesubstance appeared to be cocaine based on the appearanceof the substance, the packaging and where it was placedinside the vehicle.Deputy Dorsey used a field test kit to test the substance.

Although the test produced a negative result, Deputy Dorseyconcluded that the substance was a cutting agent to be mixedwith a controlled substance to increase its volume.After examining the baggies, Deputy Dorsey noticed that

the radio console in the vehicle looked loose and appearedto have been manipulated previously. He noted that theclearance between the actual dashboard and the plastictrim console looked enlarged, like it had been removedand replaced. Deputy Dorsey felt that what he observedwas indicative of the use of the area behind the console asa hidden compartment. Deputy Dorsey took out his pocket knife and removed the

console, which was not too difficult, since it already wassomewhat loose. Deputy Dorsey looked within and observedseveral bags of a white crystalline substance consistent withmethamphetamine lodged between the air conditioningducts.Zabala was arrested and was charged with possession for

sale of methamphetamine, transportation of methampheta-mine, and driving on a suspended license. He also wascharged with sentencing enhancements due to his four priornarcotics convictions. In the trial court, Zabala made a motion to suppress the

evidence. He argued that the search of the location behindthe console violated his Fourth Amendment rights againstunreasonable searches and seizures. The trial court deniedZabala’s motion and he pleaded no contest to the offenses.

commonly put items of value, nor is it a closed container,such as a suitcase, box, or backpack. Further, there is noevidence that Deputy Dorsey observed anything throughthe enlarged dashboard gap such as a weapon that wouldpresent a danger to the officers. Accordingly, Deputy Dorseyexceeded the scope of the Sheriff’s [Office] protocol by re-moving the console for investigatory purposes, and the in-trusion into the area behind the console cannot be upheldas an inventory search.”

The Court then looked at whether the search of the areabehind the dashboard console was justified based on prob-able cause. The Court noted that a vehicle lawfully in policecustody may be searched on the basis of probable cause tobelieve that it contains contraband, and there is no require-ment of exigent circumstances to justify such a warrantlesssearch. The Court noted that the standard is whether, basedupon the totality of the circumstances, there is a fair prob-ability that contraband or evidence of a crime will be foundin the area to be searched. According to the Court, “A prac-tical, nontechnical probability that incriminating evidencewill be found is all that is required.”

The Court stated, “Deputy Dorsey, who was trained in rec-ognizing how illegal drugs were packaged and transported,testified that the white powder under the driver’s seat waspackaged consistent with contraband, and the baggies wereindicia of criminal activity supporting a narcotics investi-gation. Based on his training and experience, he knew thatpeople use hidden compartments to conceal contraband invehicles. He noticed during the inventory search that thedashboard console had been tampered with, and he thoughtthat the area behind the console was being used as a hiddencompartment. At the preliminary hearing, Deputy Dorseytestified that he had found weapons and narcotics in hid-den vehicle compartments, and given the discovery of thebaggies under the seat, he believed contraband was hiddenbehind the dashboard. The totality of the circumstances hereprovided probable cause to search behind the dashboard

> continued on page 32

He was sentenced to serve five years in prison. Zabala appealed his conviction to the Court of Appeal.

He argued that the trial court should have granted his mo-tion to suppress the evidence. The Court of Appeal reviewedZabala’s case and upheld his conviction. The Court did notfind that the search was justified as a valid inventory searchbut found that the search was justified because it was basedon probable cause.

In its written decision, the Court first looked at the vehicleimpound search justification. The Court stated, “The UnitedStates Supreme Court has recognized that automobiles arefrequently impounded as part of a local police agency’scommunity caretaking function, and police agencies willroutinely secure and inventory a vehicle’s contents in thatprocess. The Supreme Court has deemed such warrantlessinventory searches reasonable under the Fourth Amendmentwhere the process is aimed at securing or protecting a carand its contents. Inventory searches are not subject to thewarrant requirement because they are conducted by thegovernment as part of a ‘community caretaking’ functiontotally divorced from the detection, investigation, or acqui-sition of evidence relating to violation of a criminal statute.An inventory using a standard inventory form pursuant tostandard police procedures, which included the contents ofan unlocked glove compartment, was deemed reasonable[by the United States Supreme Court]....” The Court alsopointed out that the Supreme Court has stated that standard-ized criteria or established routine must regulate the open-ing of containers found during inventory searches to assurethat an inventory search does not turn into a purposeful andgeneral means of discovering incriminating evidence.

The Court noted that Deputy Dorsey’s search by removalof the dashboard console exceeded the scope of the Sher-iff’s Office protocol, which allowed him to search placeswhere people commonly put items of value, including underthe seat, the glove compartment, the center console, andthe trunk, and it allowed for opening of closed containerswithin the vehicle. The Court stated, “A concealed area be-hind the dashboard console is not an area where people


“Deputy Dorsey had been trained in recognizing how il-legal drugs are packaged and transported. Based on histraining and experience, he knew that persons who possessillegal drugs or cutting agents will often have additionalbags hidden in their vehicles. Deputy Dorsey concludedthat the substance appeared to be cocaine based on theappearance of the substance, the packaging and where itwas placed inside the vehicle.”

dence of criminal activity would be found behind the dash-board console, not whether defendant was conclusively inpossession of illegal drugs. The substance was packaged ina manner consistent with illegal narcotics activity which, to-gether with the tampered dashboard, established probablecause to believe that contraband would be found behindthe console.”The Court’s ruling in the Zabala case provides law enforce-

ment officers with a clear and common sense example ofhow the automobile probable cause exception to the war-rant requirement may be applied based on observationsmade during an inventory search.

having been convicted of two serious or violent felonies andwith having served four prior prison terms. Page was sen-tenced to serve 10 years and eight months in state prison.The principal offense used by the trial court in sentencingwas the violation of section 10851(a), doubled for the priorserious felony.In 2014, California voters enacted Proposition 47, which

made significant changes to California crimes involving drugsand theft, including significant reductions in some criminalpenalties. After the enactment of Proposition 47, Page peti-tioned the trial court for resentencing pursuant to the pro-visions of the new law that provided for resentencing of per-sons who then were currently serving sentences. He assertedthat the conviction for a violation of Vehicle Code section10851(a) should be reduced to a misdemeanor.The trial court denied Page’s petition and he appealed the

trial court’s decision to the Court of Appeal. The Court ofAppeal ruled that Proposition 47 did not reduce felony pun-ishment to the misdemeanor level for a violation of section10851(a). The Court of Appeal also ruled that section 10851(a)did not come within the new petty theft statute, Penal Codesection 490.2, because the section does not prohibit theftbut instead punishes taking or driving a vehicle with or with-out the intent to steal it.Page requested that the California Supreme Court hear his

case. The Supreme Court agreed to hear the case and ruledthat Page should have been given an opportunity to assertthat the violation of section 10851(a) should be reduced toa misdemeanor.In its written decision, the Court first looked at the resen-

A Suspect Who Takes A Motor Vehicle ValuedAt $950 Or Less With Intent To Steal TheVehicle Is Guilty Of A Misdemeanor BasedOn The Voters’ Adoption Of Proposition 47

California Vehicle Code section 10851(a)makes it a crime for any person to driveor take a vehicle not his or her own, with-out the consent of the owner, and withintent either to permanently or tempor-arily deprive the owner of his or her titleto or possession of the vehicle, whetherwith or without intent to steal the vehi-cle. Violation of the section is either afelony or a misdemeanor. Under whatcircumstances must a suspect who takesor drives a vehicle valued at $950 or lessbe guilty only of a misdemeanor?


RECENTLY, THE CALIFORNIA SUPREME COURT LOOKEDat this question in the case of People v. Page (2017) Cal. 5th .In the Page case, Timothy Page was convicted of three fel-

onies prior to the enactment of Proposition 47. One of thefelonies was for taking or driving a vehicle, in violation ofVehicle Code section 10851(a). The other felonies were forevading an officer while driving with willful disregard forsafety, in violation of Vehicle Code section 2800.2 and forresisting an officer, in violation of Penal Code section 69.Page also was charged with sentencing enhancements for

Reliable Informer> continued from page 31

console for contraband in connection with defendant’s arrest.”The Court continued, “Defendant contends that the bag-

gies found under the driver’s seat could not supply probablecause to search behind the dashboard console because thecontent of the baggies was unknown and would not havesupported an arrest. But failure to immediately identify thesuspicious powder did not undermine the fact of its pres-ence relative to the probable cause inquiry – whether evi-

“The Court noted that posttheft driving of a vehicle wouldpermit a conviction for a felony despite the vehicle’s valuebeing $950 or less. According to the Court, ‘Posttheft driv-ing in violation of Vehicle Code section 10851 consists ofdriving a vehicle without the owner’s consent after the ve-hicle has been stolen with intent to temporarily or perma-nently deprive the owner of title or possession.’”


tencing provision. The Court stated, “Proposition 47’s re-sentencing provision, section 1170.18(a) provides, in per-tinent part: ‘A person who, on November 5, 2014, was serv-ing a sentence for a conviction...of a felony or felonies whowould have been guilty of a misdemeanor under the act thatadded this section (‘this act’) had this act been in effect atthe time of the offense may petition for a recall of sentencebefore the trial court that entered the judgment of convic-tion in his or her case to request resentencing in accordancewith Sections 11350, 11357, or 11377 or the Health andSafety Code, or section 459.5, 473, 476a, 490.2, 496, or666 of the Penal Code, as those sections have been amendedby this act.’” The Court noted that the new Penal Code sec-tion 490.2(a) provides, “Notwithstanding [Penal Code] Sec-tion 487 [grand theft] or any other provision of law defininggrand theft, obtaining any property by theft where the valueof the money, labor, real or personal property taken does notexceed $950 shall be considered petty theft and shall bepunished as a misdemeanor.” The Court also noted that aperson serving a sentence for “grand theft auto” pursuant toPenal Code section 487(d)(1) could seek resentencing if thevehicle taken was worth $950 or less. The issue, the Courtstated, was whether the same is true for a person convictedunder Vehicle Code section 10851.The Court then stated, “Vehicle Code section 10851 dif-fers in two important ways from Penal Code section 487(d)(1).For one thing, the Vehicle Code section does not expresslydesignate the offense as ‘grand theft.’ And for another, itsprohibitions sweep more broadly than ‘theft,’ as the term istraditionally understood. Vehicle Code section 10851 pun-ishes not only taking a vehicle, but also driving it withoutthe owner’s consent and ‘with intent either to permanentlyor temporarily deprive the owner thereof of his or her title toor possession of the vehicle, whether with or without intentto steal the vehicle.’ Theft, in contrast, requires a taking withintent to steal the property – that is, the intent to permanentlydeprive the owner of its possession.”The Court continued, “We recognized the distinction be-tween the theft and non-theft forms of the Vehicle Code sec-tion 10851 offense in [a previously decided case]. In thatcase, we considered whether dual convictions under Vehicle

Code section 10851 and Penal Code section 496(a) (receiv-ing stolen property) violated that statutory rule against con-victing a person for both stealing and receiving the sameproperty. We concluded the answer depended on the basisfor the Vehicle Code section 10851 conviction – whether itwas for stealing the automobile or for taking or driving it inanother prohibited manner: ‘Unlawfully taking a vehicle withthe intent to permanently deprive the owner of possessionis a form of theft, and the taking may be accomplished bydriving the vehicle away. For this reason, a defendant con-victed under section 10851(a) of unlawfully taking a vehiclewith the intent to permanently deprive the owner of pos-session has suffered a theft conviction and may not also beconvicted under section 496(a) of receiving the same vehi-cle as stolen property. On the other hand, unlawful drivingof a vehicle is not a form of theft when the driving occursor continues after the theft is complete.... Therefore, a con-viction under section 10851(a) for posttheft driving is not atheft conviction....’ The same is true when a defendant actedwith intent only to deprive the owner temporarily of posses-sion. Regardless of whether the defendant drove or took thevehicle, he did not commit auto theft if he lacked the intentto steal. But if the defendant was convicted under VehicleCode section 10851(a) of unlawfully taking a vehicle withthe intent to permanently deprive the owner of possession,he has, in fact, suffered a theft conviction.”The Court then stated, “By its terms, Proposition 47’s newpetty theft provision, section 490.2, covers the theft form ofthe Vehicle Code section 10851 offense. As noted, section490.2 (a) mandates misdemeanor punishment for a defen-dant who ‘obtained any property by theft’ where the prop-erty is worth no more than $950. An automobile is personalproperty. As a result, after the passage of Proposition 47, anoffender who obtains a car valued at less than $950 by theftmust be charged with petty theft and may not be charged asa felon under any other criminal provision.”The Court noted that Page was included in the category ofpersons serving a felony sentence who is eligible for resen-tencing pursuant to section 1170.18(a) if he would have been

> continued on page 35


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of a junk car will be the critical factor in establishing whetherthe theft of the car is a felony or a misdemeanor.

Editor’s Note: Lance Bayer is a private attorney spe-cializing in police training and personnel issues in theBay Area and can be reached by writing to: Lance Bayer,443 Lansdale Avenue, San Francisco, CA 94127, by cal-ling 415.584.1022, or by email at [email protected]

Reliable Informer> continued from page 33

guilty only of a misdemeanor if Proposition 47 had been ineffect. According to the Court, “A defendant convicted of afelony for stealing a vehicle worth $950 or less (before Prop-osition 47’s passage) would have been guilty only of a mis-demeanor had section 490.2 been in effect at the time. Thisis true regardless of whether the conviction was obtainedunder Penal Code section 487(d)(1), or Vehicle Code section10851(a).... A defendant convicted under section 10851(a)of unlawfully taking a vehicle with the intent to permanentlydeprive the owner of possession has been convicted of steal-ing the vehicle. It follows that Proposition 47 makes some,thou not all, section 10851 defendants eligible for resentenc-ing: a defendant convicted and serving a felony sentenceunder Vehicle Code section 10851(a) for vehicle theft – tak-ing a vehicle with the intent to permanently deprive theowner of possession – could (if the vehicle was worth $950or less) receive only misdemeanor punishment pursuant tosection 490.2 and is thus eligible for resentencing undersection 1170.18.”The Court also pointed out that the Voter’s Information

Guide for Proposition 47 informed the voters that under ex-isting law theft of certain types of property, such as cars,could be charged as a felony regardless of value, but underProposition 47, such crimes would no longer be charged asgrand theft “solely because of the type of property involved.”According to the Court, “...[W]e conclude that obtaining anautomobile worth $950 or less by theft constitutes petty theftunder section 490.2 and is punishable only as a misde-meanor, regardless of the statutory provision under whichthe theft was charged.”The Court noted that posttheft driving of a vehicle would

permit a conviction for a felony despite the vehicle’s valuebeing $950 or less. According to the Court, “Posttheft driv-ing in violation of Vehicle Code section 10851 consists ofdriving a vehicle without the owner’s consent after the ve-hicle has been stolen with intent to temporarily or perma-nently deprive the owner of title or possession. Where theevidence shows a ‘substantial break’ between the taking andthe driving, posttheft driving may give rise to a convictionunder Vehicle Code section 10851 distinct from any liabil-ity for vehicle theft.”The Court’s decision in the Page case is yet another illus-

tration of the challenges faced by law enforcement in thewake of Proposition 47. In many cases, establishing the value


In MemoriumOfficer Robert A.WHITE,Badge #2325Killed on January 27 1985, byelectrocution while investigat-ing an accident in which a mo-torist struck a high voltagetransformer.

Officer GordonSILVA,Badge #1512Killed on January 20, 1989, bygunfire in the same firefight withthe mentally ill pedestrian whohad just mortally wounded Offi-cer Simpson.

Officer Gene R.SIMPSON,Badge #1409Killed on January 20, 1989 bya mentally ill pedestrian whowrestled away the officer’shandgun and shot him.

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OFFICIAL PUBLICATION OF THE SAN JOSE POLICE … PUBLICATION OF THE SAN JOSE POLICE OFFICERS' ASSOCIATION Volume 46: No. 1 • January 2018 HAPPY NEW YEAR! From All At The POA HAPPY