No. 18-9285

Dean A. Schwartzmiller v. California

Lower Court: California
Docketed: 2019-05-16
Status: Denied
Type: IFP
Relisted (2)IFP
Tags: civil-rights constitutional-rights due-process equal-protection fourteenth-amendment free-speech overbreadth penal-code sixth-amendment vagueness void-for-vagueness
Latest Conference: 2020-01-10 (distributed 2 times)
Question Presented (from Petition)

Is California Penal Code § 288 void for vagueness and over-breadth and contrary to the First, Sixth, and Fourteenth Amendment to the United States Constitution on the following basis:

(1) Section 288(a)as interpreted by theCourts of California contains no definitive actus reus, is void for vagueness and overbreadth, and violates the Sixth, and Fourteenth Amendments of the United States Constitution;

(2) The California Supreme Court's addition to Section 288(a) of "any touching" however slight of a minor or child even if the "touching" is an "outwardly innocuous, or inoffensive showing of expression or loving association such as being routinely "cuddled, disrobed, stroked, examined, or groomed" necessary for a healthy upbringing, is subjectively determined by police prosecutors, judges, or juries to violate Section 288(a) and is a violation of the First, and Fourteenth Amendments of the United States Constitution;

(3) California Penal Code § 288(a) as applied and construed at Petitioner's criminal trial, created a presumption of specific intent that "Actually.. .is not required", thus, eliminating the mens rea that supposedly flows from the "any touching" act as added to the statute in 1995 by California Supreme Court activism and fiat and is a violation of the Sixth and Fourteenth Amendments to the United States Constitution;

(4) California Penal Code § 288(a) denies equal protection of the laws by creating an arbitrary, capricious, and unreasonable classification of post-pubescent minors, when the pubescent minor is capable of being prosecuted for committing the same "any touching" acts by the State, but then denies evidence that the pubescent minor's aggression and/or consent caused the "any touching" acts to occur in violation of the Sixth and Fourteenth Amendments of the United States Constitution.

Can California's Legislature after a criminal conviction, simply change a defendant's prior crimes for which he is serving a sentence, from non-violent Section 288(a) to violent Section 288(b), without trial or proof of violence required for the purpose of imposing further, or to avoid the lessening of punishments already imposed with the stroke of a pen by adding non-violent Penal Code § 288(a) to the penalty enhancement statutes § 667.61(c)(7) (1998), and 667.5(c)(6) & (16) (2006), by bill of attainder eliminating the Sixth and Fourteenth Amendments' requirement of proof beyond a reasonable doubt, by violating Article 1, Section 10, Clause 3 of the United States Constitution?

Question Presented (AI Summary)

Is California Penal Code § 288 void for vagueness and overbreadth and contrary to the First, Sixth, and Fourteenth Amendments

Docket Entries

2020-01-13
Rehearing DENIED.
2019-12-11
DISTRIBUTED for Conference of 1/10/2020.
2019-11-01
Petition for Rehearing filed.
2019-10-07
Petition DENIED.
2019-08-12
Supplemental brief of petitioner Dean A. Schwartzmiller filed. (Distributed)
2019-07-05
DISTRIBUTED for Conference of 10/1/2019.
2019-04-29
Petition for a writ of certiorari and motion for leave to proceed in forma pauperis filed. (Response due June 17, 2019)

Attorneys

Dean A. Schwartzmiller
Dean A. Schwartzmiller — Petitioner