CALIFORNIA COURT OF APPEAL
SIXTH APPELLATE DISTRICT
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
v.
JOSEPH RUBEN HOKE, JR.,
Defendant and Appellant.
No. H013094
Superior Court No. 173033
(Santa Clara County)
Appeal from Superior Court of California,
County of Santa Clara, Hon. Socrates P. Manoukian, Judge
Presiding
APPELLANT'S OPENING BRIEF
The Sixth District Appellate Program, in association with
MARTIN KASSMAN
ATTORNEY AT LAW
State Bar No. 136326
[Contact information, no longer current, appeared here.]
(415) 564-6732
Attorneys for Defendant and Appellant JOSEPH RUBEN HOKE, JR.
TABLE OF CONTENTS
TABLE OF AUTHORITIES (omitted from Web version)
II. Evidence of the Firearm Should Have Been Excluded as the Product of an Illegal Arrest.
This appeal is from the Superior Court's order sentencing defendant and appellant Joseph Ruben Hoke, Jr. to probation (CT(1) 123), a final judgment disposing of all issues in this litigation. Mr. Hoke pled guilty (CT 100; RT(2) 45-46) to one count of violating Penal Code section 12021(a) (possession of firearm by specified person) after his motions to suppress evidence and to dismiss the action on the ground of multiple prosecution were denied (CT 89-96, 98; RT 33). Mr. Hoke's guilty plea does not affect his right to appellate review of the trial court's denial of these motions. Cal. Penal Code § 1538.5(m); People v. Turner, 171 Cal. App. 3d 116, 121, 125 n.7, 128 (1985).(3)
The trial court erred in denying Mr. Hoke's motion to dismiss this prosecution pursuant to Penal Code section 654 and Kellett v. Superior Court, 63 Cal. 2d 822 (1966). A single course of conduct played a significant part in both this offense and a separately prosecuted offense of violating Penal Code section 647(f) (public intoxication with inability to care for safety). A deputy district attorney testified that she was aware of both charges against Mr. Hoke several months before he first appeared in court on either charge. Under these circumstances, as in Kellett, Mr. Hoke's conviction and sentencing on the misdemeanor foreclosed a separate prosecution on the section 12021 charge.
The trial court also erred in denying Mr. Hoke's motion to suppress evidence of the firearm in question, which a police officer found in the trunk of Mr. Hoke's car. Mr. Hoke's consent to the warrantless search was a product of his unlawful arrest on the section 647(f) charge without a warrant and without probable cause. The officer had no reasonable basis for believing that Mr. Hoke posed a danger to himself or to others. The trial court was obliged to exclude evidence of the firearm. Without such evidence, Mr. Hoke could not have been convicted of the instant offense. Accordingly, Mr. Hoke asks this Court to order that his guilty plea be deemed withdrawn and that the information be dismissed.
STATEMENT OF FACTS
On September 19, 1993, an unidentified person called Milpitas police to report that someone was sitting in a parked car watching people in a park. RT 16:1-12; CT 40, 44. Officer Andy Smith was dispatched to the park and found Mr. Hoke, who lived a block or two away, standing on a sidewalk next to his car. RT 8:19-20, 29:18-30:1; CT 36, 39 (arrest location and Mr. Hoke's address).
Another officer, Jeff Geibig, also responded to the call. He approached one James Steven Gomez, who was in a car parked behind Mr. Hoke's, and subsequently arrested Mr. Gomez for possession of marijuana for sale. RT 6:23-7:3; CT 40-41. Officer Geibig reported that Mr. Gomez and Mr. Hoke were talking when the officers arrived. CT 40. Officer Smith testified that he did not see this. RT 25:6-26:7.
Officer Smith noticed an odor of alcohol coming from Mr. Hoke and "saw that his eyes were bloodshot and glassy." RT 8:25-9:3. According to the officer's testimony, he noticed an open container of alcohol in the car, although he did not mention it in his written report. RT 10:13-16, 24:14-24. The officer asked Mr. Hoke whether he had been drinking. Mr. Hoke replied that he had been "partying hard" the night before and had just drunk some malt liquor. RT 10:21-24. The officer perceived Mr. Hoke's speech as slurred, although the officer understood it. RT 10:11; CAR(4) 8:11-20. Mr. Hoke appeared to understand the officer's questions and responded appropriately. RT 27:16-28:2; CAR 8:21-22.
The officer did not ask Mr. Hoke to walk or to perform any other sobriety test. RT 26:17-27. He did not administer any test of Mr. Hoke's blood-alcohol level. RT 28:3-4. He was aware that Mr. Hoke lived one or two blocks away. RT 29:18-30:1. Nonetheless, according to the officer's testimony, he concluded that Mr. Hoke was unable to exercise care for his own safety and the safety of others. RT 29:23-26, 30:2-4. The officer testified that he was concerned that Mr. Hoke might get inside the car and drive away or might walk onto the street and be hit by a car, in which case the officer might be liable for negligence. RT 12:6-23. The officer informed Mr. Hoke that he was under arrest, restrained him with handcuffs, took him to the patrol car, searched him, and placed him in the back of the patrol car. RT 13:1-4.
The officer then asked Mr. Hoke for permission to search his car. Mr. Hoke told him that he could go ahead and search. RT 13:5-9. The officer walked to Mr. Hoke's car, searched the interior, removed the keys from the ignition and walked back to the patrol car to ask Mr. Hoke which key fit the trunk. The handcuffed Mr. Hoke told the officer which key it was. RT 13:12-13, 13:17-24, 15:2-3, 20:11-15, 20:28-21:16.
When the officer searched the trunk, he found an unloaded shotgun(5) buried underneath "a lot of junk," including "blankets, tools, all sorts of stuff." CAR 9:19-24. The officer took the gun for safekeeping and issued a property receipt, which he placed with the belongings that accompanied Mr. Hoke to jail. CAR 12:27-13:1, 13:16-20; CT 38.
One month later -- on October 19, 1993 -- Mr. Hoke came to the police station with the property receipt to claim the shotgun. An officer checked her computer, found that Mr. Hoke had previously been convicted of a felony, and refused to return the shotgun. CT 15:13-18, 53:21-54:2, 67. The arresting officer subsequently requested that the District Attorney prosecute Mr. Hoke for a section 12021 violation. CT 15:19-21, 54:3-6, 67.
In November, Deputy District Attorney Ramona Burdys received the request to prosecute Mr. Hoke under section 12021. She was aware that Mr. Hoke also was charged under section 647(f), and she "asked for a copy of the original report and inquired as to whether the Penal Code § 647(f) case had been issued." CT 72:13-21, 76. The police department's court liaison officer provided her with the requested information. CT 71:13-15. On December 14, 1993, Ms. Burdys authorized the filing of the felony case. She took no action to consolidate the prosecutions, apparently assuming that someone else in her office would dismiss the misdemeanor charge once Mr. Hoke was arrested. CT 72:22-73:3, 76. The felony complaint was filed on December 28, 1993. CT 2-3.
The 647(f) prosecution was not dismissed. Mr. Hoke appeared in court on the misdemeanor charge on March 16, 1994. He pled guilty and was sentenced to one day in jail. CT 15:26-16:2, 21-30, 55:6-8. Three months later, in the felony case, Mr. Hoke filed motions to dismiss the charge as part of a multiple prosecution, pursuant to section 654 and Kellett (CT 12-45), and to suppress evidence of the shotgun, pursuant to section 1538.5 (CT 46-51). The trial court denied these motions. CT 89-98; RT 1:12-26, 33:25. Mr. Hoke subsequently pled guilty, with the understanding that the trial court would execute a certificate of probable cause on the Kellett issue, and was sentenced to probation. RT 45:28-46:18, 50:23-24, 52:10-16. The trial court executed the probable cause certificate as promised (CT 127-28), and Mr. Hoke filed the instant appeal (CT 124-26).
The California Supreme Court, in furtherance of the legislative purposes of the prohibition of multiple prosecutions for the same act or omission (Cal. Penal Code § 654) and the expansive scope of permissible joinder (id. § 954), has held that related offenses ordinarily must be joined in a single prosecution. Kellett v. Superior Court, 63 Cal. 2d 822, 826 (1966).
If needless harassment and the waste of public funds are to be avoided, some acts that are divisible for the purpose of punishment must be regarded as being too interrelated to permit their being prosecuted successively. . . . When, as here, the prosecution is or should be aware of more than one offense in which the same act or course of conduct plays a significant part, all such offenses must be prosecuted in a single proceeding unless joinder is prohibited or severance permitted for good cause. Failure to unite all such offenses will result in a bar to subsequent prosecution of any offense omitted if the initial proceedings culminate in either acquittal or conviction and sentence.
Id. at 827.
The facts of Kellett resemble the facts of this case. The defendant in Kellett was arrested on a misdemeanor charge (in that case, Penal Code section 417, exhibiting a firearm in a threatening manner). About one month later, after authorities discovered that the defendant was a convicted felon, he was charged with a felony violation of section 12021 for his possession of a firearm at the time of the misdemeanor offense. The People did not move to consolidate the cases. Some months later, the defendant pled guilty to the misdemeanor charge. He then moved in the superior court to dismiss the felony information, which motion was denied. Id. at 824.
The Supreme Court granted a writ of prohibition ordering the superior court not to proceed with the felony trial. Id. at 824, 829. The Attorney General argued that the People could establish that the defendant possessed the firearm prior to the misdemeanor violation. Id. at 824. The court assumed that this was true and conceded that section 417 could be violated without violating section 12021 and vice-versa. Id. at 825 & n.2. The court held, however, that even if the defendant could have received a separate punishment for each offense consistent with section 654, he could not be subjected to separate prosecutions for two offenses in which the same course of conduct played a significant part. Id. at 825, 827.
The trial court in this case denied Mr. Hoke's Kellett motion primarily on the ground that "the elements of the two offenses are not identical and to me that's a substantial issue." RT 1:12-16.(6) The court opined that People v. Wasley, 11 Cal. App. 3d 121 (1970), and People v. Flint, 51 Cal. App. 3d 333 (1975), both of which applied Kellett to bar a second prosecution, were distinguishable from this case
in that the focus of the second prosecution, the possession of a firearm in the trunk of his vehicle, is completely different from the focus of the first prosecution, being drunk in public. Thus, the Kellett rule does not apply because the act of being drunk in public does not play, in the words of Kellett, a "significant part" in the act of being an ex-felon in constructive possession of a firearm kept in a locked trunk.
CT 95.
This is not a legitimate basis for distinguishing either Wasley or Flint. In Wasley, a firearm was found in the defendant's car when he was arrested for armed robbery. 11 Cal. App. 3d at 122. He had not possessed the firearm during the robbery; his companions had committed the holdup while he waited in the car. Id. at 124 (Friedman, J., dissenting). After he was tried and acquitted of armed robbery, he was charged with violating section 12021, tried and convicted. Id. at 123 (majority opinion). The Court of Appeal held that Kellett barred the section 12021 prosecution. The apparent reason was that, although the two offenses were distinct(7) and were committed at different times, the same course of conduct played a significant part in both offenses. 11 Cal. App. 3d at 123; see In re Grossi, 248 Cal. App. 2d 315, 321 (1967). Mr. Hoke has an even stronger case for the application of Kellett, because there is no allegation that Mr. Hoke possessed the firearm at any time other than during the commission of the first-prosecuted offense.
In Flint, the defendant was arrested for drunk driving, a misdemeanor. The vehicle turned out to be stolen, and he was subsequently charged with two felonies: auto theft and joyriding. 51 Cal. App. 3d at 335. The defendant pled guilty to the misdemeanor charge, then moved to dismiss the felony prosecution pursuant to section 654 and Kellett. The trial court granted the motion, and the Court of Appeal affirmed. Id. at 335, 339. The fact that the offenses were distinct did not justify separate prosecutions:
We may readily grant that the car was stolen several minutes before defendant's arrest, but -- the formal testimony of the victim aside -- the same incident which furnished the evidence that defendant was driving in an intoxicated condition, also supplied proof that what he was driving was an automobile he had stolen. Further, it was obviously the impounded car which, when matched against the victim's crime report, triggered the theft prosecution.
Id. at 338 (citation omitted).
Likewise, in the instant case, the same incident that furnished the purported evidence that Mr. Hoke was intoxicated and unable to care for his own and others' safety also supplied proof that there was a firearm in his vehicle.(8) The firearm that was confiscated from his car at the time of his arrest, when combined with a check of his criminal record, triggered the instant prosecution.
In at least one respect, Mr. Hoke has a stronger case for the application of Kellett than did the defendant in Flint: In that case, the deputy district attorney who filed the felony case was not aware of the misdemeanor case, and the cases were filed in different municipal courts. 51 Cal. App. 3d at 335. Here, the deputy district attorney who authorized the felony case was fully informed about the misdemeanor case, having ordered and received the original police report, and the complaints were filed in the same municipal court, both signed by the same police officer. CT 2-3, 31, 71:13-15, 72:16-24, 95 n.5.
The opinion in Flint demonstrates that the trial court in the instant case erred when it placed decisive weight on the fact that the elements of section 647(f) and section 12021 offenses "are not identical."
Neither the purpose of the rule -- prevention of needless harassment and waste of public funds; nor the criterion for its applicability -- whether the same act or course of conduct plays "a significant part" with respect to each crime -- suggests that its applicability in a particular case depends on abstract definitions of the elements of the respective crimes or on the precise moment when, as a matter of law, one crime was completed.
51 Cal. App. 3d at 336.
Thus, although it is relevant to the Kellett analysis that Mr. Hoke's possession of his car played a significant part in both offenses, it is not relevant that the abstract definitions of the two offenses have no elements in common. A single course of conduct -- Mr. Hoke's presence, with his car, on the street next to the park on September 19, 1993 -- played a significant part in both the misdemeanor and felony charges.(9)
In its written opinion, the trial court briefly mentioned several other "reasons to reject application of the Kellett rule." The court noted that "the officer who filed the first case was not yet aware of the additional facts needed to file the second case." CT 95. This observation is irrelevant; both that officer and Deputy District Attorney Burdys knew of both cases, and the connection between them, several months before Mr. Hoke appeared in court on the misdemeanor charge. CT 71:9-15, 72:16-24, 76.
The trial court next asserted that, because this case, like In re Dennis B., 18 Cal. 3d 687 (1976), involved a "very minor" first-prosecuted offense and a felony second-prosecuted offense, (1) Mr. Hoke had "faced a minimal amount of harassment and duplicative expense," (2) any "anxiety" Mr. Hoke might feel likely resulted "solely from the latter charge, not from the multiplicity of prosecutions,"(10) and (3) the state's interest in maintaining "the summary nature of infractions and minor misdemeanors" would be impaired by requiring the prosecution to ascertain the possibility of further criminal proceedings. CT 95-96.
Dennis B. does not stand for the proposition that "minor misdemeanors" are disregarded for purposes of Kellett analysis. In Dennis B., unlike the instant case, there was "no evidence that a particular prosecutor actually knew of both offenses in time to prevent a multiplicity of proceedings." 18 Cal. 3d at 693. That being the case, the Supreme Court had to determine "whether the prosecution should have known of the two offenses, a question distinct from that of actual knowledge." Id. at 694. The court went on to say that "[o]ne . . . factor" in determining whether the prosecution should have known was
the disparity in gravity between the two charged offenses. When both offenses are serious crimes, the potential for harassment and waste is sufficiently strong that section 654 imposes on prosecutors an administrative duty to insure that the charges are joined. Although occasional failure to coordinate prosecutorial efforts may result in a defendant guilty of a felony escaping proper punishment, such a risk "is inherent in the preclusion [by] section 654 of multiple punishment." [Citation to Kellett, 63 Cal. 2d at 828.] However, when as in the present case, the original charge is merely a motor vehicle infraction, the balance substantially shifts. The potential harassment and expense faced by a defendant so charged is minimal: an infraction is not punishable by confinement (Pen. Code, § 19c [now § 19.6]), and generally no stigma is attached thereto.
Id. at 694-95. The court held that the defendant could, notwithstanding his conviction of making an unsafe lane change, be subjected to the juvenile equivalent of a prosecution for vehicular manslaughter. Id. at 690, 696.
The obvious differences between the instant case and Dennis B. are (1) that Mr. Hoke's first prosecution was not for a traffic infraction but for a misdemeanor punishable (and punished in this case) by confinement and (2) that the People in this case were aware of the multiplicity of prosecutions. Assuming arguendo that the court in Dennis B. established a rule that traffic infractions never "count" for Kellett purposes, there was no suggestion that such a rule might apply to misdemeanors. The notion that prosecutors of minor offenses should not be required to check for other offenses, lest the "summary nature" of such prosecutions be disturbed, could be relevant only where the issue is whether the People "should have known" of both offenses, as in Dennis B.. There is no such issue in this case.
Finally, the trial court's written opinion asserted that Mr. Hoke, like the defendant in Stackhouse v. Municipal Court, 63 Cal. App. 3d 243 (1976), "created his own problems of harassment by failing to move to consolidate" the cases. The trial court conceded that this was "an extremely minor factor in this case." CT 96. Indeed, the trial court had previously remarked that the fact that Mr. Hoke was not represented by counsel in the misdemeanor case "takes away the argument that somebody should have moved to consolidate the two cases." RT (7/22)(11) 5:18-26. Stackhouse, like Dennis B., is distinguishable because (1) there was no evidence that anyone in the prosecutor's office was aware of both prosecutions (63 Cal. App. 3d at 246 n.2, 247) and (2) the first-prosecuted offense was not punishable by incarceration (id. at 247).(12)
For the foregoing reasons, the trial court erred in denying Mr. Hoke's motion to dismiss this prosecution pursuant to section 654 and Kellett.
II. Evidence of the Firearm Should Have Been Excluded as the Product of an Illegal Arrest.
The officer who arrested Mr. Hoke and searched his car did not have a warrant for either the arrest or the search. RT 1:28-2:3; CT 98. Both a warrantless arrest and a warrantless search presumptively violate the Fourth Amendment, and the prosecution bears the burden of justifying them. People v. Cruz, 61 Cal. 2d 861, 865 (1964); People v. Natale, 77 Cal. App. 3d 568, 573 (1978); People v. Mitchell, 251 Cal. App. 2d 641, 643 (1967).
According to the officer's testimony, Mr. Hoke consented to the search of his car after he had been arrested, handcuffed and placed in the patrol car. RT 13:1-9. If the arrest was unlawful, the consent was ineffective:
A search and seizure made pursuant to consent secured immediately following an illegal entry or arrest . . . is inextricably bound up with the illegal conduct and cannot be segregated therefrom.
People v. Haven, 59 Cal. 2d 713, 719 (1963); see People v. Brown, 210 Cal. App. 3d 849, 856-57 (1989) (this Court holds consent to search vitiated by initial illegal entry).
The fruits of such a search must be excluded from evidence. See People v. Superior Court, 71 Cal. 2d 265, 271 (1969); Mitchell, 251 Cal. App. 2d at 643-44; cf. Wong Sun v. United States, 371 U.S. 471, 485 (1963); People v. Gregg, 43 Cal. App. 3d 137, 140, 143 (1974) (error to admit evidence found in consensual search of defendant's apartment four days after warrantless search of trunk of defendant's car). Accordingly, Mr. Hoke's suppression motion should have been granted unless the People satisfied their burden of justifying the warrantless arrest. This issue is primarily one of law and is subject to independent review on appeal. People v. Williams, 45 Cal. 3d 1268, 1301 (1988), cert. denied, 488 U.S. 1050 (1989).
A warrantless arrest is constitutional only if, at the moment the arrest was made, the officers had probable cause to make it; that is, at that moment, the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent person in believing that the arrestee had committed or was committing an offense. Beck v. Ohio, 379 U.S. 89, 91 (1964); People v. Triggs, 8 Cal. 3d 884, 894-95 (1973).
The circumstances within Officer Smith's knowledge at the time of the arrest would not have warranted a prudent person in believing that Mr. Hoke was in violation of section 647(f). The officer's testimony was sufficient to establish that Mr. Hoke was in a public place and had consumed intoxicating liquor, but the facts he described would not justify a belief that Mr. Hoke was unable to exercise care for his own safety or the safety of others.(13) Mr. Hoke communicated in an understandable fashion and responded appropriately to the officer's questions. CAR 8:11-22; RT 27:16-28:2. He was not disorderly. CAR 8:7-8; RT 23:13. The officer could not say that Mr. Hoke had any difficulty in standing. RT 26:28-27:2.
The trial court, in denying the motion to suppress, reasoned that the officer "thought the man could get in a car and drive away or could walk away and be injured notwithstanding his approximate residence to the location in question." RT 34:14-16.(14) The officer, however, had not seen Mr. Hoke drive the car, had not heard from anyone that Mr. Hoke was driving the car, and did not touch the vehicle to see whether the engine was warm. RT 21:20-22, 28:12-16. The officer was aware that Mr. Hoke lived only a block or two away. RT 29:18-30:1. The physical manifestations of Mr. Hoke's alleged intoxication were minimal, and he had his wits about him. Under these circumstances, the possibility of Mr. Hoke's being injured or injuring someone else was remote.
For the foregoing reasons, the People did not satisfy their burden of justifying the warrantless arrest of Mr. Hoke, and the trial court erred in denying the motion to suppress evidence of the firearm found in the ensuing search. Because possession of a firearm is a necessary element of a section 12021 violation, this prosecution could not proceed if that evidence were excluded.
The trial court erred in denying Mr. Hoke's motion to dismiss
this case pursuant to the prohibition on multiple prosecution. It
also erred in denying the motion to suppress evidence of the
firearm -- evidence indispensable to the People's
establishment of a section 12021 offense. Accordingly, this Court
should order that Mr. Hoke's guilty plea be deemed withdrawn and
that the information be dismissed.
Dated: November 30, 1994.
The Sixth District Appellate Program, in association with
MARTIN KASSMAN
ATTORNEY AT LAW
By [signed Martin Kassman]
Attorneys for Defendant and Appellant JOSEPH RUBEN HOKE, JR.
1. "CT" refers to the Clerk's Transcript on Appeal From the Judgment of the Superior Court of the State of California, in and for the County of Santa Clara.
2. "RT" refers to the Reporter's Transcript on Appeal that covers proceedings held on July 29, August 2 and September 9, 1994.
3. In accordance with Penal Code section 1237.5, Mr. Hoke filed a written statement setting forth grounds going to the legality of the proceedings, and the trial court executed and filed a certificate of probable cause for this appeal. CT 127-28. In accordance with California Rules of Court Rule 31(d), Mr. Hoke's notice of appeal specified that the appeal is based, in part, on the denial of Mr. Hoke's section 1538.5 motion. CT 124-25.
4. "CAR" refers to the Clerk's Augmentation to the Record on Appeal, which contains a transcript of the preliminary examination on June 2, 1994.
5. The officer's testimony on direct examination at the preliminary examination was transcribed as "I found a loaded shotgun . . . ." CAR 6:5. His testimony on cross-examination made clear that the shotgun was not loaded. CAR 9:6-10, 12:24-26; CT 38.
6. The trial judge added that "on the remaining issues [defense counsel's] points are well taken." RT 1:17-18.
7. "The Wasley court . . . properly disregarded the fact that the section 12021 charge could have been proved with evidence entirely divorced from the facts surrounding the robbery." Flint, 51 Cal. App. 3d at 338.
8. According to the arresting officer, the fact that Mr. Hoke had access to his vehicle played a significant part in the decision to arrest him. RT 12:8-11, 30:5-13; CT 81:17-18.
9. The fact that mere possession of a car is not a crime does not mean that it cannot be part of a "course of conduct" for Kellett purposes. As the Flint court noted: "Nor is the applicability of section 654 to be determined by distinguishing between the criminal and noncriminal aspects of particular facts." 51 Cal. App. 3d at 336 n.4.
10. The trial court's speculations about the source and amount of harassment and anxiety felt by Mr. Hoke were not germane. "In construing 'harassment' in terms of the ordeal faced by defendants, as well as the motivation of the prosecution, we by no means sanction a case-by-case measurement of anxiety. Such an undertaking is neither feasible nor called for by section 654." Dennis B., 18 Cal. 3d at 695 n.5.
11. "RT (7/22)" refers to the Reporter's Transcript on Appeal that covers proceedings held on July 22, 1994.
12. The Court of Appeal's cryptic suggestion in Stackhouse that a defendant's failure to move to consolidate cases relieves the prosecution of its duty to do so, 63 Cal. App. 3d at 247, is inconsistent with the Supreme Court's decision in Kellett. More than two months elapsed in Kellett between the initiation of the felony case and the defendant's guilty plea in the misdemeanor case. 63 Cal. 2d at 824. Presumably, the defendant could have moved during that time to consolidate the cases. The Supreme Court threw out the felony case, never suggesting that the duty to consolidate the prosecutions rested with anyone but the People.
13. Neither the misdemeanor complaint (CT 31) nor the officer in his report or testimony alleged that Mr. Hoke interfered with the free use of any public way, which section 647(f) sets forth as an alternative to inability to exercise care.
14. Although it did not say so, the trial court presumably concluded that, by an objective standard, the facts were sufficient to warrant a prudent person in believing that Mr. Hoke could not exercise care for his own or others' safety. That the officer actually "thought" so, if he did, does not resolve the constitutional inquiry.