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Robert Dustin Strong et al v. the Superior Court of Orange County

August 29, 2011

ROBERT DUSTIN STRONG ET AL., PETITIONERS,
v.
THE SUPERIOR COURT OF ORANGE COUNTY, RESPONDENT; THE PEOPLE, REAL PARTY IN INTEREST.



Original proceedings; petition for a writ of prohibition to challenge an order of the Superior Court of Orange County, Frank F. Fasel, Judge. (Super. Ct. No. 10CF3130)

The opinion of the court was delivered by: Aronson, J.

CERTIFIED FOR PUBLICATION

OPINION

Petition granted.

Robert Dustin Strong and David Michael Knick seek a writ of prohibition to overturn the trial court's denial of their motion to dismiss on ex post facto grounds (U.S. Const., art. I, § 10; Cal. Const., art. I, § 9) murder charges filed when their victim, former Orange County Sheriff Deputy Ira Essoe, died 29 years after they assaulted and paralyzed him.

The narrow issue for our consideration in this unusual case is whether the Legislature intended to preclude with the following language murder charges when the victim of an assault dies more than three years and a day later: "To make the killing either murder or manslaughter, it is requisite that the party die within three years and a day after the stroke received or the cause of death administered." (Former Pen. Code, § 194, as amended by Stats. 1969, ch. 993, § 1 (eff. Nov., 1969; subsequently amended eff. Jan. 1, 1997) [hereafter § 194 or § 194 (Nov. 1969)].)

We find nothing ambiguous in this language, which plainly establishes a time-based "immunity" (People v. Snipe (1972) 25 Cal.App.3d 742, 747 (Snipe) to particular charges, and is therefore indistinguishable in operation and effect from a statute of limitations. Changing the applicable limitations period after it has expired, as occurred here and in contrast to doing so "before the immunity of the earlier statute had attached" (ibid.), violates ex post facto principles. (Stogner v. California (2003) 539 U.S. 607, 632-633 (Stogner); see id. at pp. 617-618, 630 [finding historical "unanimity . . . that the kind of statute before us is ex post facto"]; see also, e.g., Falter v. United States (2d. Cir. 1928) 23 F.2d 420, 426 (Falter) (opn. by Learned Hand, J.) ["For the state to assure a man that he has become safe from its pursuit, and thereafter to withdraw its assurance, seems to most of us unfair and dishonest"].)

Here, after separate jury trials in 1981, Strong and Knick respectively received sentences of 17 years, four months, and 16 years, eight months, for the attempted murder and assault offenses they committed against Essoe in 1980. After Strong and Knick gained parole in the 1990's, the Legislature in 1997 eliminated the three-years-and-a-day limitation period in section 194.*fn1

Under Stogner, prosecuting Strong and Knick for murder in 2010 based on the new version of section 194, after the applicable limitations period expired in November 1983, violates the ex post facto clause. (Stogner, supra, 539 U.S. 607.) The same is true under the California Constitution. (See People v. Alford (2007) 42 Cal.4th 749 [identical state and federal ex post facto provisions interpreted similarly].) We therefore grant Strong and Knick's petition for a writ of prohibition to restrain the trial court from permitting further prosecution.

I FACTUAL AND PROCEDURAL BACKGROUND

The relevant facts are brief and tragic. Strong, Knick, and another accomplice, in the process of burglarizing a vehicle at the Orange Mall, shot Essoe on November 6, 1980, inflicting multiple gunshot wounds, including one that severed his spinal cord and immediately paralyzed him from the waist down.

Essoe died on February 4, 2010. The coroner determined Essoe's death was a homicide, caused by "delayed complications of remote gunshot wounds [to his] torso." Essoe's paralysis led to decubitus ulcers that progressed to a bone infection and then sepsis, a fatal blood condition.

The district attorney charged Strong and Knick with Essoe's murder on November 11, 2010. The police arrested Strong on December 1, 2010, and transported him to jail. The record does not disclose Knick's date of arrest or incarceration. After the trial court denied their motions to dismiss on ex post facto and other grounds, and found sufficient evidence at the preliminary hearing to bind them over for arraignment, Strong and Knick sought writ relief in this court. We ...


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