America is different than Europe and the rest of the world in many ways. When it comes to alcohol, one big difference is the legal age an individual can purchase and consume alcohol. In California, a person must be 21 to purchase and consume an alcoholic beverage. Moreover, being a minor and possessing an alcohol beverage in public could lead to a criminal charge.
California Business and Professions Code section 25662 prohibits minors, under the age of 21, from possessing an alcoholic beverage in any public place. The short term for this offense is "MIP," minor in possession. A MIP is a misdemeanor, meaning that it carries potential ramifications on a person's criminal record. One cannot go to jail, but there is the possibility of significant community service hours.
Not as well-known is the penalty related to a person's driver's license. Pursuant to California Vehicle Code section 13202.5, a person convicted of MIP will face a one-year license suspension, or a one-year delay in obtaining a driver's license. Each subsequent offense carries an additional year of suspension or delay. Thus, a person convicted will not only face a fine, community service, criminal record, and a license suspension, he or she will also be burdened with trying to find transportation to and from obligations.
Like with every criminal charge, there are available defenses that could result in a dismissal. An illegal search or seizure, i.e. no probable cause, will be favorable to a defendant. Also, there are written exceptions to MIP. A person working as a waiter or server cannot be convicted if he or she is performing duties related to their employment.
Perhaps the most magnanimous decision by the legislation was to add immunity to a minor who calls 911 for purposes of aiding a minor who needs medical attention due to alcohol consumption. It is a wise amendment because it saves lives; the law encourages individuals to seek help, instead of trying to avoid criminal prosecution.
There are some common sense requirements for the immunity to be applicable. The caller must be the first caller to 911. So if there is a party, not every single minor will receive the benefits of the law, if each one calls separately. The caller must also stay on the scene and cooperate with law enforcement or medical emergency personnel.
A minor in possession charge is a misdemeanor with serious consequences. If you, or someone you know, is charged with MIP, contact an experienced criminal defense attorney for assistance.
Showing posts with label Criminal Defense. Show all posts
Showing posts with label Criminal Defense. Show all posts
Monday, June 13, 2016
Friday, May 13, 2016
Lessons from the Popular Podcast "Serial"
My wife and I finished the first season of the podcast "Serial." The popularity of the podcast does not surprise me. Not only was the presentation well done, but the integrity of the investigation was sound. For those who may not know what I am referring to, "Serial" is an expose into the 1999 murder of Hae Min Lee, a charming, brilliant high school student.
A jury in Baltimore convicted Adnan Syed, the former boyfriend, for the crime. "Serial" relied upon conversations with Adnan Syed to assist in its own investigation. Adnan was good-looking, friendly, and endearing to his peers so the conviction came as quite a shock to many people in the community. His conviction is currently being challenged via a petition for writ of habeas corpus.
The case, tragic in a myriad of ways, is a good example of what post-conviction relief looks like. First, let us discuss the evidence against Adnan. Then, we will discuss some potentially exculpatory evidence that is being used in his habeas case. Lastly, some final thoughts will be given.
The prosecution's case against Adnan was built upon the testimony of Adnan's friend Jay (not real name). Jay gave testimony that Adnan had planned Hai Min Lee's murder, told Jay about it, and then asked Jay to assist in the burying of the body after the murder. This testimony in conjunction with cell phone tower evidence (used much more today than at the time of the trial) was the crux of the prosecution's case. Jay's inconsistencies were many, but the cell phone tower evidence corroborated his story that he was in Leakin Park (a park near Baltimore) with Adnan on the night that Hae Min Lee went missing. Hae Min Lee's body was found in Leakin Park a few months later.
Despite Adnan hiring one of the most renowned criminal defense attorneys in Baltimore, Cristina Gutierrez, he lost at trial. One of the main arguments used Adnan's habeas petition was that Cristina Gutierrez provided ineffective assistance of counsel. Specifically, Adnan claimed that Cristina Gutierrez failed to contact an alibi witness who wrote a letter to Ms. Gutierrez stating that she had seen Adnan Syed in the library at the time the prosecution believed Hae Min Lee was murdered (he is also claiming that Cristina Gutierrez failed to seek a plea deal with the prosecution).
A judge has to decide whether Ms. Gutierrez's failures resulted in fundamental unfairness for Adnan, and whether a new trial is warranted.
Most habeas petitions include an argument of ineffective assistance of counsel (IAC). Given the Supreme Court's recent expansion of the law with respect to plea bargaining, it is a good argument to make. Attorneys are not perfect, and the law should not expect them to be. As such, relief should be given to those defendants who were not given a fair trial because their attorneys were inadequate.
Adnan Syed's case also involves DNA evidence. An innocent project clinic is moving to test evidence collected -- where Hae Min Lee's body was found -- that has never been tested before. It is the hope of Adnan that the DNA evidence will exculpate him for the murder of Hae Min Lee.
Like IAC, using DNA evidence to prove factual innocence is common in post-conviction relief. California has even taken steps to lower the standard at which evidence can be tested. Other states have implemented better DNA evidence protocol with respect to police investigations, i.e. they must keep the evidence a certain period of time, ensure its authenticity, etc.
No matter what, seeking post-conviction relief via a writ of habeas corpus is an uphill battle. Most, and I emphasize most, cases are dismissed with prejudice. The burden shifts immediately after a defendant is convicted, meaning that the People do not have to prove a case beyond a reasonable doubt. It is up to the petitioner to prove his innocence. It is very difficult to do; just ask Adnan Syed.
A jury in Baltimore convicted Adnan Syed, the former boyfriend, for the crime. "Serial" relied upon conversations with Adnan Syed to assist in its own investigation. Adnan was good-looking, friendly, and endearing to his peers so the conviction came as quite a shock to many people in the community. His conviction is currently being challenged via a petition for writ of habeas corpus.
The case, tragic in a myriad of ways, is a good example of what post-conviction relief looks like. First, let us discuss the evidence against Adnan. Then, we will discuss some potentially exculpatory evidence that is being used in his habeas case. Lastly, some final thoughts will be given.
The prosecution's case against Adnan was built upon the testimony of Adnan's friend Jay (not real name). Jay gave testimony that Adnan had planned Hai Min Lee's murder, told Jay about it, and then asked Jay to assist in the burying of the body after the murder. This testimony in conjunction with cell phone tower evidence (used much more today than at the time of the trial) was the crux of the prosecution's case. Jay's inconsistencies were many, but the cell phone tower evidence corroborated his story that he was in Leakin Park (a park near Baltimore) with Adnan on the night that Hae Min Lee went missing. Hae Min Lee's body was found in Leakin Park a few months later.
Despite Adnan hiring one of the most renowned criminal defense attorneys in Baltimore, Cristina Gutierrez, he lost at trial. One of the main arguments used Adnan's habeas petition was that Cristina Gutierrez provided ineffective assistance of counsel. Specifically, Adnan claimed that Cristina Gutierrez failed to contact an alibi witness who wrote a letter to Ms. Gutierrez stating that she had seen Adnan Syed in the library at the time the prosecution believed Hae Min Lee was murdered (he is also claiming that Cristina Gutierrez failed to seek a plea deal with the prosecution).
A judge has to decide whether Ms. Gutierrez's failures resulted in fundamental unfairness for Adnan, and whether a new trial is warranted.
Most habeas petitions include an argument of ineffective assistance of counsel (IAC). Given the Supreme Court's recent expansion of the law with respect to plea bargaining, it is a good argument to make. Attorneys are not perfect, and the law should not expect them to be. As such, relief should be given to those defendants who were not given a fair trial because their attorneys were inadequate.
Adnan Syed's case also involves DNA evidence. An innocent project clinic is moving to test evidence collected -- where Hae Min Lee's body was found -- that has never been tested before. It is the hope of Adnan that the DNA evidence will exculpate him for the murder of Hae Min Lee.
Like IAC, using DNA evidence to prove factual innocence is common in post-conviction relief. California has even taken steps to lower the standard at which evidence can be tested. Other states have implemented better DNA evidence protocol with respect to police investigations, i.e. they must keep the evidence a certain period of time, ensure its authenticity, etc.
No matter what, seeking post-conviction relief via a writ of habeas corpus is an uphill battle. Most, and I emphasize most, cases are dismissed with prejudice. The burden shifts immediately after a defendant is convicted, meaning that the People do not have to prove a case beyond a reasonable doubt. It is up to the petitioner to prove his innocence. It is very difficult to do; just ask Adnan Syed.
Saturday, March 12, 2016
The Power of Impeachment in TV's People v. O.J. Simpson
Twenty years have passed since the O.J. Simpson trial led to an acquittal. The sensationalism of the trial made the case one of the most watched in the 20th century. A beloved sports hero, actor, and celebrity was the "star" of the court proceedings. Everyone had an opinion as to whether O.J. was guilty or innocent.
Almost the same notoriety went to his team of attorneys, appropriately called the "Dream Team." Together, they faced incredible evidentiary odds to secure a "not guilty" for their client. The leadership of Johnny Cochran, exquisite trial attorney, was inspiring for the criminal defense bar. Remember: everyone, no exceptions, deserves due process and an effective defense at trial.
The miniseries on FX, The People v. O.J. Simpson, makes for good television. While it does not accurately portray the case in its entirety, it does hit home what the defense wanted to accomplish. At one point in the series, Courtney B. Vance, who plays Mr. Cochran, perfectly explains the objective for trial. The defense must tell the better story. "Whoever can tell the better story will win the case."
In real life, attorneys must do the same. The narrative and theme is important. It helps the jury weigh the evidence and come to a decision.
During the time of O.J. Simpson's trial, Los Angeles was still trying to recover from the Rodney King riots. Only a couple of years had passed when LAPD officers had beaten a black man on video and then were subsequently cleared of wrongdoing. Racial tensions were high. The Los Angeles Police Department were still dealing with institutional racism.
Knowing this, the Dream Team concocted a winning theme. Question the validity of all evidence gathered by the LAPD, and hit home the unmistakable fact: O.J. Simpson is a Black-American who was facing accusations from predominantly white police officers, some of whom were suspected of holding racial prejudices.
It goes without saying that not all police officers who worked on the O.J. Simpson case were racists, or had prejudice in their hearts. However, one detective on the case, Mark Fuhrman, was said to have used the N-word on many occasions. There were rumors that he collected Nazi paraphernalia.
At trial, these facts were put to use. When Detective Fuhrman testified, F. Lee Bailey, one of Mr. Simpson's defense attorneys, "impeached" him. Impeachment is a tool used by attorneys to undermine the credibility of the testimony being given. It helps the jury decide whether they should trust what the person is testifying to. There are many ways of impeaching a witness. One way is to point out the inconsistencies in the testimony.
Detective Fuhrman flat-out denied that he had ever used the N-word. Without much effort, the defense was able to provide evidence that he had indeed used the word before. This immediately caused the jury to question his reliability. Not only on the question of whether he had ever used racially-charged language, but whether he had lied about the evidence collected at the scene of the crime. The blood, the gloves, and other physical evidence used by the prosecution were undermined.
The impeachment of Detective Fuhrman fit the Dream Team's theme. Could the LAPD be trusted, given their racial history? Would a racist cop try to frame a black celebrity? What if the prosecution's evidence was tainted? All these questions led to reasonable doubt. And reasonable doubt is all a defense needs when a defendant goes to trial.
Almost the same notoriety went to his team of attorneys, appropriately called the "Dream Team." Together, they faced incredible evidentiary odds to secure a "not guilty" for their client. The leadership of Johnny Cochran, exquisite trial attorney, was inspiring for the criminal defense bar. Remember: everyone, no exceptions, deserves due process and an effective defense at trial.
The miniseries on FX, The People v. O.J. Simpson, makes for good television. While it does not accurately portray the case in its entirety, it does hit home what the defense wanted to accomplish. At one point in the series, Courtney B. Vance, who plays Mr. Cochran, perfectly explains the objective for trial. The defense must tell the better story. "Whoever can tell the better story will win the case."
In real life, attorneys must do the same. The narrative and theme is important. It helps the jury weigh the evidence and come to a decision.
During the time of O.J. Simpson's trial, Los Angeles was still trying to recover from the Rodney King riots. Only a couple of years had passed when LAPD officers had beaten a black man on video and then were subsequently cleared of wrongdoing. Racial tensions were high. The Los Angeles Police Department were still dealing with institutional racism.
Knowing this, the Dream Team concocted a winning theme. Question the validity of all evidence gathered by the LAPD, and hit home the unmistakable fact: O.J. Simpson is a Black-American who was facing accusations from predominantly white police officers, some of whom were suspected of holding racial prejudices.
It goes without saying that not all police officers who worked on the O.J. Simpson case were racists, or had prejudice in their hearts. However, one detective on the case, Mark Fuhrman, was said to have used the N-word on many occasions. There were rumors that he collected Nazi paraphernalia.
At trial, these facts were put to use. When Detective Fuhrman testified, F. Lee Bailey, one of Mr. Simpson's defense attorneys, "impeached" him. Impeachment is a tool used by attorneys to undermine the credibility of the testimony being given. It helps the jury decide whether they should trust what the person is testifying to. There are many ways of impeaching a witness. One way is to point out the inconsistencies in the testimony.
Detective Fuhrman flat-out denied that he had ever used the N-word. Without much effort, the defense was able to provide evidence that he had indeed used the word before. This immediately caused the jury to question his reliability. Not only on the question of whether he had ever used racially-charged language, but whether he had lied about the evidence collected at the scene of the crime. The blood, the gloves, and other physical evidence used by the prosecution were undermined.
The impeachment of Detective Fuhrman fit the Dream Team's theme. Could the LAPD be trusted, given their racial history? Would a racist cop try to frame a black celebrity? What if the prosecution's evidence was tainted? All these questions led to reasonable doubt. And reasonable doubt is all a defense needs when a defendant goes to trial.
Monday, February 8, 2016
Preliminary Hearings in Felony Cases
A lot of our blog posts touch upon the subject of criminal procedure. The reason: defendants should be aware of what is going on in their case. Too often, defendants are ignorant of what they must accomplish to be cleared of the charges against them. Knowing the different burdens of proof, obstacles, and objectives will only assist the attorney in his or her representation.
With that preface, let us discuss preliminary hearings, commonly referred to as "prelims." A felony case begins with a complaint being filed. A complaint lists out allegations, or criminal charges, against the defendant. Once the defendant is arraigned, where the court explains the charges against the defendant and asks the defendant to enter a plea of guilty or not guilty, a preliminary hearing is set within ten days, unless time is waived (a time waiver allows hearings to be scheduled further out).
A prelim is a probable cause hearing. A judge, or magistrate, hears evidence and then determines whether there is sufficient probable cause to find that the defendant must "be held to answer." Held to answer is a legal term, which means that there is enough evidence for the defendant to stand trial for the charges itemized in the complaint.
The court may dismiss some charges (even all, at times), however, if he or she believes that there is insufficient probable cause. Probable cause is a lower burden to meet than proof beyond a reasonable doubt. Probable cause is met when there are facts that would lead a man of ordinary care and prudence to believe and hold a strong suspicion that the defendant is guilty of a crime.
It is not enough if the prosecutor can only prove some of the "elements" of the crime. All elements of the charged crime must meet the threshold of probable cause, or the charges must be dismissed.
At the defendant's preliminary hearing, an attorney may be present. Most constitutional rights that would apply at trial are also applicable at preliminary hearing. A defendant may cross examine prosecution witnesses. Evidence may also be presented by the defendant to negate an element of the charged crime. There is also a right to discovery, where the prosecution must disclose all exculpatory (helpful) evidence.
Strategically, an attorney may feel that a preliminary hearing is futile, but insist that one take place anyway. Why? He or she will get an opportunity to hear a preview of the prosecution's case against the defendant. It helps prepare the defense attorney for trial. Another reason: an attorney may want to impeach a witness at trial, when there is a likelihood that the witness will testify differently at preliminary hearing. Other times, an attorney may advise that the defendant waive his right to a preliminary hearing --like when there is plenty of evidence to find probable cause.
Defendants should always consult with a criminal defense attorney prior to the preliminary hearing. As stated above, there is a possibility that the case will be dismissed at preliminary hearing. But, more likely than not, if a defendant is not prepared or ready, he or she will "lose" at the preliminary hearing. Thus, a diligent defendant will seek out representation before he or she goes forward to prelim.
With that preface, let us discuss preliminary hearings, commonly referred to as "prelims." A felony case begins with a complaint being filed. A complaint lists out allegations, or criminal charges, against the defendant. Once the defendant is arraigned, where the court explains the charges against the defendant and asks the defendant to enter a plea of guilty or not guilty, a preliminary hearing is set within ten days, unless time is waived (a time waiver allows hearings to be scheduled further out).
A prelim is a probable cause hearing. A judge, or magistrate, hears evidence and then determines whether there is sufficient probable cause to find that the defendant must "be held to answer." Held to answer is a legal term, which means that there is enough evidence for the defendant to stand trial for the charges itemized in the complaint.
The court may dismiss some charges (even all, at times), however, if he or she believes that there is insufficient probable cause. Probable cause is a lower burden to meet than proof beyond a reasonable doubt. Probable cause is met when there are facts that would lead a man of ordinary care and prudence to believe and hold a strong suspicion that the defendant is guilty of a crime.
It is not enough if the prosecutor can only prove some of the "elements" of the crime. All elements of the charged crime must meet the threshold of probable cause, or the charges must be dismissed.
At the defendant's preliminary hearing, an attorney may be present. Most constitutional rights that would apply at trial are also applicable at preliminary hearing. A defendant may cross examine prosecution witnesses. Evidence may also be presented by the defendant to negate an element of the charged crime. There is also a right to discovery, where the prosecution must disclose all exculpatory (helpful) evidence.
Strategically, an attorney may feel that a preliminary hearing is futile, but insist that one take place anyway. Why? He or she will get an opportunity to hear a preview of the prosecution's case against the defendant. It helps prepare the defense attorney for trial. Another reason: an attorney may want to impeach a witness at trial, when there is a likelihood that the witness will testify differently at preliminary hearing. Other times, an attorney may advise that the defendant waive his right to a preliminary hearing --like when there is plenty of evidence to find probable cause.
Defendants should always consult with a criminal defense attorney prior to the preliminary hearing. As stated above, there is a possibility that the case will be dismissed at preliminary hearing. But, more likely than not, if a defendant is not prepared or ready, he or she will "lose" at the preliminary hearing. Thus, a diligent defendant will seek out representation before he or she goes forward to prelim.
Saturday, December 5, 2015
What is Discovery in a Criminal Case?
A defendant in a criminal case will naturally be afraid of what could happen to him or her. Misdemeanor and felony charges carry the potential for jail and prison time. In addition, defendants face the possibility of future scrutiny in their employment prospects and personal reputation.
The first two questions usually asked by a defendant are: "What did I do? What evidence does the prosecution have?" The process by which a defense attorney obtains the evidence is called "discovery." Discovery is the opportunity for the defendant to find out what kind of case the prosecution will present against the defendant.
During the pre-trial stage of a case, discovery is undertaken by both the defense attorney and prosecuting attorney. Both sides are required to discuss their case. There are not supposed to be surprises at trial. Legal dramas on television and movies are not representative of a majority of real cases.
Discovery is done informally, at first. Sometimes the Judge presiding over the case will have to be involved to handle disputes. Common disputes arise when a defense attorney has reason to believe that the prosecution has not handed over particular evidence. The prosecution must turn over certain evidence, such as:
Certain legal principles are supposed to protect a defendant as well. For example, "Brady" violations occur when a prosecutor intentionally withholds exculpatory evidence. Recently, the United States Chief Judge of the 9th Circuit Court of Appeals, Alex Kozinski, criticized California state judges for allowing prosecutorial misconduct. He said that there is an "epidemic of Brady violations..."
Regardless of misconduct or not, it is important for defendants to be aware of their rights. Discovery is important to a case. Sometimes it will lead to a defense verdict. Other times it can help facilitate a favorable plea deal. If you have been charged with a crime, it is important to consult with an attorney. Evidence and its impact on your case can be discussed.
The first two questions usually asked by a defendant are: "What did I do? What evidence does the prosecution have?" The process by which a defense attorney obtains the evidence is called "discovery." Discovery is the opportunity for the defendant to find out what kind of case the prosecution will present against the defendant.
During the pre-trial stage of a case, discovery is undertaken by both the defense attorney and prosecuting attorney. Both sides are required to discuss their case. There are not supposed to be surprises at trial. Legal dramas on television and movies are not representative of a majority of real cases.
Discovery is done informally, at first. Sometimes the Judge presiding over the case will have to be involved to handle disputes. Common disputes arise when a defense attorney has reason to believe that the prosecution has not handed over particular evidence. The prosecution must turn over certain evidence, such as:
- witness names and the content of their testimony
- "real evidence," or physical evidence
- evidence that is favorable to the defendant, i.e. "exculpatory"
- felony history of any witnesses for purposes of impeachment
- any "relevant" recorded or written statements
Certain legal principles are supposed to protect a defendant as well. For example, "Brady" violations occur when a prosecutor intentionally withholds exculpatory evidence. Recently, the United States Chief Judge of the 9th Circuit Court of Appeals, Alex Kozinski, criticized California state judges for allowing prosecutorial misconduct. He said that there is an "epidemic of Brady violations..."
Regardless of misconduct or not, it is important for defendants to be aware of their rights. Discovery is important to a case. Sometimes it will lead to a defense verdict. Other times it can help facilitate a favorable plea deal. If you have been charged with a crime, it is important to consult with an attorney. Evidence and its impact on your case can be discussed.
Saturday, November 7, 2015
Factual Innocence Motion & Sealing an Arrest Record
Los Angeles County Sheriff Deputies beat and framed Gabriel Carrillo while he was in custody in 2011. During a routine visit with an inmate, an oral argument took place between visitor Carrillo and the sheriff deputies. Things escalated when the deputies took Carrillo into custody and assaulted him. The deputies claimed that Carrillo had tried to fight them. When photographs showed injuries to Carrillo's hands -- indicating that he was beaten while handcuffed, battery charges against Carrillo were dropped.
Now, 4 years later, Mr. Carrillo was able to get a "factual innocence" motion granted. This goes far beyond an "expungement." Mr. Carrillo will now have his arrest record sealed and destroyed. A Los Angeles Superior Court has ruled that there was no reasonable cause to believe that he committed the offense for which he was arrested.
Individuals who have been convicted of a crime in Los Angeles County will routinely call attorneys about cleaning up their records. It makes sense. In a competitive job market, it is good to have a limited criminal background. Most, if not all, are unaware of the differences between expungements and what Mr. Carrillo had received.
To explain clearly, it is important to start from the beginning. If there is probable cause for an arrest, and a person is arrested, he or she will have an arrest record, meaning that a criminal background check will show that an arrest took place.
A criminal charge is usually then initiated. It is separate from an arrest. Once a criminal charge has been filed, a person's background will note the charge and the result of that charge. It could be a dismissal -- should someone be successful in a motion to suppress, for example, or it could be a conviction. No matter what, however, there will be information available during a background check.
An expungement, as explained in other blog posts, dismisses the conviction. It also gives the formerly convicted person certain rights. It prevents discrimination. An expungement does not get rid of an arrest or charge on a person's criminal history. It simply withdraws the guilty plea and dismisses the case.
A "factual innocence motion" does get rid of a person's criminal history. Pursuant to California Penal Code section 851.8, should a person win a Petition to Seal and Destroy an arrest record, the California Department of Justice will seal the arrest. It will not show up on a criminal background check. After three years, it gets destroyed.
The burden is extremely high for a Petition to Seal and Destroy. Factual innocence must be proven, which is a tough standard. A person must show that there was no "reasonable cause" to believe that a crime was committed. Again, it is difficult.
Nevertheless, it is a good option for individuals like Mr. Carrillo. If you, the reader, family member, or friend are unsure on how to proceed in cleaning up a criminal background, it is best to contact a criminal defense attorney. He or she will likely be able to answer questions that are specific to each person.
Now, 4 years later, Mr. Carrillo was able to get a "factual innocence" motion granted. This goes far beyond an "expungement." Mr. Carrillo will now have his arrest record sealed and destroyed. A Los Angeles Superior Court has ruled that there was no reasonable cause to believe that he committed the offense for which he was arrested.
Individuals who have been convicted of a crime in Los Angeles County will routinely call attorneys about cleaning up their records. It makes sense. In a competitive job market, it is good to have a limited criminal background. Most, if not all, are unaware of the differences between expungements and what Mr. Carrillo had received.
To explain clearly, it is important to start from the beginning. If there is probable cause for an arrest, and a person is arrested, he or she will have an arrest record, meaning that a criminal background check will show that an arrest took place.
A criminal charge is usually then initiated. It is separate from an arrest. Once a criminal charge has been filed, a person's background will note the charge and the result of that charge. It could be a dismissal -- should someone be successful in a motion to suppress, for example, or it could be a conviction. No matter what, however, there will be information available during a background check.
An expungement, as explained in other blog posts, dismisses the conviction. It also gives the formerly convicted person certain rights. It prevents discrimination. An expungement does not get rid of an arrest or charge on a person's criminal history. It simply withdraws the guilty plea and dismisses the case.
A "factual innocence motion" does get rid of a person's criminal history. Pursuant to California Penal Code section 851.8, should a person win a Petition to Seal and Destroy an arrest record, the California Department of Justice will seal the arrest. It will not show up on a criminal background check. After three years, it gets destroyed.
The burden is extremely high for a Petition to Seal and Destroy. Factual innocence must be proven, which is a tough standard. A person must show that there was no "reasonable cause" to believe that a crime was committed. Again, it is difficult.
Nevertheless, it is a good option for individuals like Mr. Carrillo. If you, the reader, family member, or friend are unsure on how to proceed in cleaning up a criminal background, it is best to contact a criminal defense attorney. He or she will likely be able to answer questions that are specific to each person.
Friday, September 4, 2015
DUI Checkpoints Are Legal
The other day an individual challenged his DUI in court without the representation of an attorney. In open court, in front of the other defendants and attorneys, he started to yell at the presiding judge. "They violated my constitutional rights!" The judge was annoyed but let the man finish. "A DUI checkpoint is unconstitutional! There was no probable cause to stop me!" After he was done, the judge responded: "This is an arraignment. All you need to do is enter a plea of guilty, no contest, or not guilty."
Besides the procedural mistake (one does not argue the merits of a case at an arraignment), the pro per defendant was wrong on the law. DUI checkpoints are not unconstitutional. To the contrary, both the United States and California Constitutions' allow DUI checkpoints.
The rationale behind "mobile" or "roadblock" DUI checkpoints lies in public safety. Due to the state's strong interest in preventing injury from DUI accidents, minor inconveniences are allowed. This does not mean that law enforcement can use checkpoints as an excuse to perform general or broad investigations. Police officers must follow strict guidelines when conducting a DUI checkpoint.
California has enacted legislation with respect to checkpoints. California Vehicle Code section 2814.2, subsection (a) states: "[a] driver of a motor vehicle shall stop and submit to a sobriety checkpoint inspection conducted by a law enforcement agency when signs and displays are posted requiring that stop."
Nevertheless, a California Supreme Court case in 1987 (Ingersoll v. Palmer), enumerated the guidelines that must be followed by officers executing a DUI checkpoint. They are as follows:
a) Supervising officers must make all operational decisions;
b) Criteria for stops must be neutral;
c) Checkpoint must be reasonably located;
d) Adequate safety measures must be taken;
e) Good judgment must be used when determining the checkpoint's time and duration;
f) There must be sufficient notice to drivers that the checkpoint is for official purposes;
g) Drivers must only be stopped for a minimal amount of time; and
h) Checkpoints should be publicly advertised in advance of execution.
If these guidelines are not followed, it is possible that a DUI charge, arising from a checkpoint, could be challenged. There are never guarantees, however.
A checkpoint also does not mean officers' can perform an extensive investigation without probable cause. A brief stop can lead to an investigation when there is evidence, sufficient probable cause, of intoxication --for example, when a person has alcohol on his breath, blurred eyes, or slurred speech.
In summary, on holiday weekends, like Labor Day Weekend, make sure that you avoid situations where you will have to drink and drive. Use a designated driver or taxi service if you drink. It is not only against the law, it is extremely dangerous. With that, have a good weekend!
Besides the procedural mistake (one does not argue the merits of a case at an arraignment), the pro per defendant was wrong on the law. DUI checkpoints are not unconstitutional. To the contrary, both the United States and California Constitutions' allow DUI checkpoints.
The rationale behind "mobile" or "roadblock" DUI checkpoints lies in public safety. Due to the state's strong interest in preventing injury from DUI accidents, minor inconveniences are allowed. This does not mean that law enforcement can use checkpoints as an excuse to perform general or broad investigations. Police officers must follow strict guidelines when conducting a DUI checkpoint.
California has enacted legislation with respect to checkpoints. California Vehicle Code section 2814.2, subsection (a) states: "[a] driver of a motor vehicle shall stop and submit to a sobriety checkpoint inspection conducted by a law enforcement agency when signs and displays are posted requiring that stop."
Nevertheless, a California Supreme Court case in 1987 (Ingersoll v. Palmer), enumerated the guidelines that must be followed by officers executing a DUI checkpoint. They are as follows:
a) Supervising officers must make all operational decisions;
b) Criteria for stops must be neutral;
c) Checkpoint must be reasonably located;
d) Adequate safety measures must be taken;
e) Good judgment must be used when determining the checkpoint's time and duration;
f) There must be sufficient notice to drivers that the checkpoint is for official purposes;
g) Drivers must only be stopped for a minimal amount of time; and
h) Checkpoints should be publicly advertised in advance of execution.
If these guidelines are not followed, it is possible that a DUI charge, arising from a checkpoint, could be challenged. There are never guarantees, however.
A checkpoint also does not mean officers' can perform an extensive investigation without probable cause. A brief stop can lead to an investigation when there is evidence, sufficient probable cause, of intoxication --for example, when a person has alcohol on his breath, blurred eyes, or slurred speech.
In summary, on holiday weekends, like Labor Day Weekend, make sure that you avoid situations where you will have to drink and drive. Use a designated driver or taxi service if you drink. It is not only against the law, it is extremely dangerous. With that, have a good weekend!
Saturday, August 8, 2015
Bench Warrants
A number of times prospective clients have called and asked questions about bench warrants. "Can an attorney go to court for me, without me being there?" "Will or can I be arrested?" "What did I do, which makes a warrant necessary?" These example questions, all legitimate, will be answered in this blog post.
"Warrants" have been around longer than the United States. The general definition of a warrant is a document issued by a legal or government official authorizing the police or some other body to make an arrest, search premises, or carry out some other action relating to the administration of justice. The Fourth Amendment of the Constitution requires that probable cause be present prior to the issuance of an unreasonable search and seizure warrant.
Warrants may not involve a search or seizure, however. Judicial officers can issue bench warrants for different reasons. Some of the most common reasons why a bench warrant is issued: (1) a defendant misses a mandatory court appearance; (2) a defendant faces a possible revocation of probation; and (3) a defendant fails to pay court ordered fines.
Bench warrants do not require suspicion of a crime having been committed. Typically, bench warrants involve open cases. Judicial officers issue a bench warrant and it authorizes law enforcement to arrest and detain an individual so that the open matter can be disposed of.
To clear a bench warrant, the defendant must appear before the court. In the rarest of cases, judicial officers allow an appearance without the defendant being present. Most of the time, defendants will need to be present. It depends on the particular case, and facts of that case. Some courts have different protocol, i.e. time limitations to appear (before 8:30 am at some courts). It may be necessary to consult with an attorney to answer questions specific to a particular set of facts.
Felonies, misdemeanors, and even traffic matters can result in the issuance of a bench warrant. In some cases, a driver's license hold is placed on the defendant too. Ignoring a bench warrant is extremely unwise and potentially dangerous to an effective defense. Far too many times, judges have scolded defendants for attempting to skirt the law.
If you, a loved one, or friend has a bench warrant, it is best to get a taken care of right away. Seek the consultation of a criminal defense attorney; most offer free consultations.
"Warrants" have been around longer than the United States. The general definition of a warrant is a document issued by a legal or government official authorizing the police or some other body to make an arrest, search premises, or carry out some other action relating to the administration of justice. The Fourth Amendment of the Constitution requires that probable cause be present prior to the issuance of an unreasonable search and seizure warrant.
Warrants may not involve a search or seizure, however. Judicial officers can issue bench warrants for different reasons. Some of the most common reasons why a bench warrant is issued: (1) a defendant misses a mandatory court appearance; (2) a defendant faces a possible revocation of probation; and (3) a defendant fails to pay court ordered fines.
Bench warrants do not require suspicion of a crime having been committed. Typically, bench warrants involve open cases. Judicial officers issue a bench warrant and it authorizes law enforcement to arrest and detain an individual so that the open matter can be disposed of.
To clear a bench warrant, the defendant must appear before the court. In the rarest of cases, judicial officers allow an appearance without the defendant being present. Most of the time, defendants will need to be present. It depends on the particular case, and facts of that case. Some courts have different protocol, i.e. time limitations to appear (before 8:30 am at some courts). It may be necessary to consult with an attorney to answer questions specific to a particular set of facts.
Felonies, misdemeanors, and even traffic matters can result in the issuance of a bench warrant. In some cases, a driver's license hold is placed on the defendant too. Ignoring a bench warrant is extremely unwise and potentially dangerous to an effective defense. Far too many times, judges have scolded defendants for attempting to skirt the law.
If you, a loved one, or friend has a bench warrant, it is best to get a taken care of right away. Seek the consultation of a criminal defense attorney; most offer free consultations.
Saturday, July 11, 2015
Law Enforcement Cannot Search Cell Phones Without Warrants
It is common knowledge that the law moves slow, much slower than technology. When it comes to technological advances, the law can barely keep up. One should be able to see why. Drafters of legislation, usually not keen on computer science and engineering, have a difficult time anticipating how new devices could impact the law.
For example, cell phones in the 1980's were bricks. Users could expect dropped calls and much attention. The ability to make calls without a landline was groundbreaking. But, cell phones did not serve any other function besides making calls. Many could not predict that cell phones would become min-computers. Smartphones are radically different from first generation cell phones; lawyers, judges, and legislators may have been the last to realize it.
Smartphones have impacted the law, and the Fourth Amendment. Messages, applications, and search history can assist law enforcement. Drug deals can be carried out by text message. Illegal transfer of stolen money can be done by mobile banking. Indeed, a murderer could develop ways to kill someone by searching on his or her cell phone. The vast majority of cell phone use is not criminal in nature. As such, it is important that privacy is protected.
In June of 2014, the United States Supreme Court unanimously held that searching a cell phone incident to arrest requires a search warrant. Riley v. California was a strong rebuke of the government's position that law enforcement should be able to access digital data before it could be potentially destroyed.
Chief Justice John Roberts wrote, in part, that: "[t]he fact that technology now allows an individual to carry [the privacies of life] in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple— get a warrant."
In practice, law enforcement has been slow to apply Riley. One would be surprised how often police officers still search cell phones after a DUI, domestic violence, or misdemeanor arrest without a warrant. In these cases, there can be redress if inculpatory evidence is obtained.
Should law enforcement search a cell phone after an arrest without a warrant, a defense attorney may be able to prevail in suppressing the evidence. A 1538 motion to suppress should definitely be considered as an option by a defense attorney if there are possible Riley violations.
Smartphones are more than just phones, they are at the center of many people's lives. Although the Fourth Amendment didn't touch upon the legality of searching cell phones (the founding fathers were smart but not fortune tellers), we now know that it is the law of the land that cell phones cannot be searched without a warrant.
For example, cell phones in the 1980's were bricks. Users could expect dropped calls and much attention. The ability to make calls without a landline was groundbreaking. But, cell phones did not serve any other function besides making calls. Many could not predict that cell phones would become min-computers. Smartphones are radically different from first generation cell phones; lawyers, judges, and legislators may have been the last to realize it.
Smartphones have impacted the law, and the Fourth Amendment. Messages, applications, and search history can assist law enforcement. Drug deals can be carried out by text message. Illegal transfer of stolen money can be done by mobile banking. Indeed, a murderer could develop ways to kill someone by searching on his or her cell phone. The vast majority of cell phone use is not criminal in nature. As such, it is important that privacy is protected.
In June of 2014, the United States Supreme Court unanimously held that searching a cell phone incident to arrest requires a search warrant. Riley v. California was a strong rebuke of the government's position that law enforcement should be able to access digital data before it could be potentially destroyed.
Chief Justice John Roberts wrote, in part, that: "[t]he fact that technology now allows an individual to carry [the privacies of life] in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple— get a warrant."
In practice, law enforcement has been slow to apply Riley. One would be surprised how often police officers still search cell phones after a DUI, domestic violence, or misdemeanor arrest without a warrant. In these cases, there can be redress if inculpatory evidence is obtained.
Should law enforcement search a cell phone after an arrest without a warrant, a defense attorney may be able to prevail in suppressing the evidence. A 1538 motion to suppress should definitely be considered as an option by a defense attorney if there are possible Riley violations.
Smartphones are more than just phones, they are at the center of many people's lives. Although the Fourth Amendment didn't touch upon the legality of searching cell phones (the founding fathers were smart but not fortune tellers), we now know that it is the law of the land that cell phones cannot be searched without a warrant.
Thursday, June 4, 2015
Defending Against a Criminal Threats PC 422 Charge
Anyone familiar with the criminal justice system knows that it is not perfect. Any institution cannot be perfect when the institution is comprised of imperfect human beings. Nonetheless, there are commonplace problems that should be addressed. Until then, a defendant should be aware of how to successfully navigate a criminal threats charge when the facts are scant to support a conviction.
California Penal Code section 422 defines "criminal threats" as willfully threatening to kill or severely harm a victim. It is a "wobbler" crime, meaning that it can be charged as a misdemeanor or felony. However, prosecutors will routinely charge it as a felony to gain an advantage in the plea bargaining stage of the case.
Like with any other crime, the prosecution has to prove each element of the alleged violation beyond a reasonable doubt. The elements of Pen. Code section 422 show that it may be difficult to prove each element beyond a reasonable doubt when there exist facts favorable for the defendant. Let me explain, by first stating each element of the crime.
For example, a threat made in jest between two friends would not be a chargeable offense. A conditional threat, as well, could not lead to a conviction: "I will hurt you if you continue to date that person..."
Similarly, a threat must cause a sustained fear in the person threatened. Say a defendant is mentally ill. While experiencing a psychotic episode, the defendant makes a criminal threat against a law enforcement official. Prior to the threat, the law enforcement officer knew or should have known that the defendant was a mentally ill person. Further, the defendant, outnumbered by six other officers, had no way of carrying out the threat. The hypothetical above would likely end with an acquittal.
A criminal charge is not a criminal conviction. A prosecutor may charge a defendant with a criminal threats charge, but there may be facts that support a dismissal or acquittal.
California Penal Code section 422 defines "criminal threats" as willfully threatening to kill or severely harm a victim. It is a "wobbler" crime, meaning that it can be charged as a misdemeanor or felony. However, prosecutors will routinely charge it as a felony to gain an advantage in the plea bargaining stage of the case.
Like with any other crime, the prosecution has to prove each element of the alleged violation beyond a reasonable doubt. The elements of Pen. Code section 422 show that it may be difficult to prove each element beyond a reasonable doubt when there exist facts favorable for the defendant. Let me explain, by first stating each element of the crime.
- Defendant willfully threatened to unlawfully kill or cause great bodily injury (GBI) to another person or person's immediate family (from here on out we will exclude the section regarding a person's family)
- Defendant made the threat orally, in writing, or by electronic communication device
- Defendant intended that his or her statement be understood by the person as a threat
- The threat was so clear, immediate, unconditional, and specific, that it communicated to the person being threatened a serious intention and the immediate prospect that the threat would be carried out
- The threat actually caused the person to be in sustained fear for his or her own safety and
- The threatened person's fear was reasonable under the circumstances.
For example, a threat made in jest between two friends would not be a chargeable offense. A conditional threat, as well, could not lead to a conviction: "I will hurt you if you continue to date that person..."
Similarly, a threat must cause a sustained fear in the person threatened. Say a defendant is mentally ill. While experiencing a psychotic episode, the defendant makes a criminal threat against a law enforcement official. Prior to the threat, the law enforcement officer knew or should have known that the defendant was a mentally ill person. Further, the defendant, outnumbered by six other officers, had no way of carrying out the threat. The hypothetical above would likely end with an acquittal.
A criminal charge is not a criminal conviction. A prosecutor may charge a defendant with a criminal threats charge, but there may be facts that support a dismissal or acquittal.
Friday, May 8, 2015
Traffic Changes in LA County Present New Obstacles for Defendants
Traffic citations are issued to almost every driver in Los Angeles. Broken tail light, speeding, driving without a license are all common mistakes. No one is spared from the traffic courts, including attorneys, judges, and sometimes law enforcement personnel. Thus, everyone should be angry about recent changes being implemented throughout Los Angeles County.
Penalty assessments use to be the only outrageous part of getting a ticket. For those unfamiliar with penalty assessments, let me explain. The California Legislature has voted multiple times to add additional assessments to every single citation in California, on top of the base fine. These assessments are now a reliable way to increase revenue for the state. What use to be a $100 fine, adds up to around $500 after state assessments. Recently, the LA Times and other media outlets have criticized the burdensome law, which affects low-income families the most.
Now the courts have taken egregious steps to make traffic citations even more onerous. To my knowledge, these changes have not yet been made available to the public. Let me go through some of the major changes:
DEFENDANTS CAN NO LONGER PURCHASE AN ABSTRACT AFTER A FAILURE TO APPEAR
A failure to appear is a separate charge that can be added to a ticket, if a defendant misses his or her court date. When a defendant misses a court date, the court will issue a warrant, and place a hold on the defendant's driver's license. A hold will then lead to a suspension of the driver's license.
Upon notice of the suspension, defendants use to be able to go to the court clerk and purchase an abstract. An abstract removed the hold, and the defendant could then get his or her license reissued. No more.
Now, holds will not be removed until disposition of the case. Attorneys can and should request a speedy trial in light of these changes.
DEFENDANTS CAN NO LONGER NEGOTIATE DIFFERENT VIOLATIONS WITH THE OFFICERS AT TRIAL
Some defendants cannot take advantage of traffic school (completion of traffic school, available once every 18 months, keeps a negligent operator point off of the defendant's driving record with the DMV).
A strategy that used to be utilized by attorneys, when traffic school was not available, was negotiation with the citing officers. When evidence was disputable, or when officers' were in a good mood, the court would accept an amended violation and plea agreement. This means that the officer would change the vehicle code violation to a non-moving violation (carries no point), and the defendant would change his plea to guilty. The moving violation would then be dismissed. This is no longer an option.
Given that negotiations are off the table, attorneys will have no other choice but to put on a trial. This means that discovery requests may be made more often.
DEFENDANTS CAN BE FOUND GUILTY BY THE COURT IF THEY ARE NOT PRESENT AT TRIAL
Defendants miss their trial dates too. Before the new changes effective April 1, 2015, the court would have simply issued a warrant and placed a hold on the defendant's driver license. Unfortunately, this is not the case now.
Bench officers may now hold a trial in absentia. In absentia is a Latin phrase meaning "in the absence" of the defendant. If there is sufficient evidence of guilt, the court can find the defendant guilty without the defendant having been given an opportunity to present a defense. Pretty crazy, right?
These new policies are frowned upon by the defense bar. One can expect appeals to the higher courts. Until then, a person cited for a traffic matter should be careful. It is a new world.
Penalty assessments use to be the only outrageous part of getting a ticket. For those unfamiliar with penalty assessments, let me explain. The California Legislature has voted multiple times to add additional assessments to every single citation in California, on top of the base fine. These assessments are now a reliable way to increase revenue for the state. What use to be a $100 fine, adds up to around $500 after state assessments. Recently, the LA Times and other media outlets have criticized the burdensome law, which affects low-income families the most.
Now the courts have taken egregious steps to make traffic citations even more onerous. To my knowledge, these changes have not yet been made available to the public. Let me go through some of the major changes:
DEFENDANTS CAN NO LONGER PURCHASE AN ABSTRACT AFTER A FAILURE TO APPEAR
A failure to appear is a separate charge that can be added to a ticket, if a defendant misses his or her court date. When a defendant misses a court date, the court will issue a warrant, and place a hold on the defendant's driver's license. A hold will then lead to a suspension of the driver's license.
Upon notice of the suspension, defendants use to be able to go to the court clerk and purchase an abstract. An abstract removed the hold, and the defendant could then get his or her license reissued. No more.
Now, holds will not be removed until disposition of the case. Attorneys can and should request a speedy trial in light of these changes.
DEFENDANTS CAN NO LONGER NEGOTIATE DIFFERENT VIOLATIONS WITH THE OFFICERS AT TRIAL
Some defendants cannot take advantage of traffic school (completion of traffic school, available once every 18 months, keeps a negligent operator point off of the defendant's driving record with the DMV).
A strategy that used to be utilized by attorneys, when traffic school was not available, was negotiation with the citing officers. When evidence was disputable, or when officers' were in a good mood, the court would accept an amended violation and plea agreement. This means that the officer would change the vehicle code violation to a non-moving violation (carries no point), and the defendant would change his plea to guilty. The moving violation would then be dismissed. This is no longer an option.
Given that negotiations are off the table, attorneys will have no other choice but to put on a trial. This means that discovery requests may be made more often.
DEFENDANTS CAN BE FOUND GUILTY BY THE COURT IF THEY ARE NOT PRESENT AT TRIAL
Defendants miss their trial dates too. Before the new changes effective April 1, 2015, the court would have simply issued a warrant and placed a hold on the defendant's driver license. Unfortunately, this is not the case now.
Bench officers may now hold a trial in absentia. In absentia is a Latin phrase meaning "in the absence" of the defendant. If there is sufficient evidence of guilt, the court can find the defendant guilty without the defendant having been given an opportunity to present a defense. Pretty crazy, right?
These new policies are frowned upon by the defense bar. One can expect appeals to the higher courts. Until then, a person cited for a traffic matter should be careful. It is a new world.
Thursday, April 2, 2015
The Effects of AB 16: Changes to Domestic Violence Charge PC 273.5
Last year, the California legislature amended Penal Code section 273.5, corporal injury on a spouse. The new changes expanded the definition of whom can be classified as a victim. Now included under the statute: former fiances and fiancees, current and former dating partners, mother or father of the defendant's child.
The changes have widened the scope of who can be accused of committing an act of domestic violence. The authors of the bill projected that it could increase convictions under the law by 10%. It is too early to tell, however, if there have been more criminal filings as a result of the change. Nevertheless, a domestic violence charge remains a serious crime.
Treating domestic violence differently than other violent crimes has been entrenched in California law since 1945. There is data, and tragic anecdotal stories, showing that victims of domestic violence can experience mental trauma for years, if not indefinitely unto death. Thus, there is a strong public interest in treating domestic violence crimes differently.
All people accused of committing a PC 273.5 act of domestic violence are not guilty. There have been cases of false accusations or self-defense.
To be convicted under the law, the People have to prove beyond a reasonable doubt that the defendant:
(1) willfully inflicted a physical injury on an intimate partner; and
(2) as a result, the act caused the victim to experience a traumatic condition.
We already discussed how the term "intimate partner" was expanded by AB 16. A "traumatic condition" is a visible injury. If both elements can be proven, an accused can face serious penalties.
PC 273.5 is a "wobbler," offense, meaning that it can be charged as a misdemeanor or felony. If a defendant is convicted of the misdemeanor, he or she faces a maximum of one-year (1) in jail, and a fine of $6,000. If a defendant is convicted of the felony, he or she faces a maximum four-year (4) prison sentence.
There also could be consequences related to a state license or a person's immigration status. One cannot forget that it also carries a social stigma. People accused of committing an act of domestic violence should consult with a criminal defense attorney. Changes in the law, possible defenses, and analysis of a particular case can be discussed.
The changes have widened the scope of who can be accused of committing an act of domestic violence. The authors of the bill projected that it could increase convictions under the law by 10%. It is too early to tell, however, if there have been more criminal filings as a result of the change. Nevertheless, a domestic violence charge remains a serious crime.
Treating domestic violence differently than other violent crimes has been entrenched in California law since 1945. There is data, and tragic anecdotal stories, showing that victims of domestic violence can experience mental trauma for years, if not indefinitely unto death. Thus, there is a strong public interest in treating domestic violence crimes differently.
All people accused of committing a PC 273.5 act of domestic violence are not guilty. There have been cases of false accusations or self-defense.
To be convicted under the law, the People have to prove beyond a reasonable doubt that the defendant:
(1) willfully inflicted a physical injury on an intimate partner; and
(2) as a result, the act caused the victim to experience a traumatic condition.
We already discussed how the term "intimate partner" was expanded by AB 16. A "traumatic condition" is a visible injury. If both elements can be proven, an accused can face serious penalties.
PC 273.5 is a "wobbler," offense, meaning that it can be charged as a misdemeanor or felony. If a defendant is convicted of the misdemeanor, he or she faces a maximum of one-year (1) in jail, and a fine of $6,000. If a defendant is convicted of the felony, he or she faces a maximum four-year (4) prison sentence.
There also could be consequences related to a state license or a person's immigration status. One cannot forget that it also carries a social stigma. People accused of committing an act of domestic violence should consult with a criminal defense attorney. Changes in the law, possible defenses, and analysis of a particular case can be discussed.
Sunday, February 8, 2015
Fighting a Drunk in Public Charge
Hollywood and other Los Angeles cities are home to numerous dance clubs and bars. With drinking establishments, there is always the risk of becoming intoxicated, and making bad decisions. Some choices could lead to legal trouble.
Most people are aware that it is unlawful, dangerous, and unwise to drive after a night out drinking. Some are unaware that it is a crime to be "drunk in public." Similar to a driving under the influence allegation, a drunk in public criminal charge could lead to a criminal record, jail time, and adverse employment consequences.
California Penal Code section 647 prohibits disorderly conduct. One aspect of disorderly conduct is being "drunk in public." Subsection (f) of Pen. Code section 647, prohibits being intoxicated in public to such an extent that you cannot care for the safety of yourself or others, or so drunk that you obstruct a street, sidewalk, or public way. Let's break down the elements:
(1) Intoxicated in a public place; and
(2) Cannot care for the safety of oneself or others, OR obstructing a street, sidewalk, or public way.
An arrest can occur if a drunk person is exhibiting behavior sufficient to meet element 2. One example: Danny the Drunk leaves the bar at 2:00 am, after having consumed ten shots of tequila. Danny the Drunk drank too much, and starts to have trouble walking. He can't go further than five feet, before he falls onto the street. Danny the Drunk is not hurt, but he blocks a group of nuns from walking by. Policeman Peter sees the whole thing and arrests Danny the Drunk for being "drunk in public."
Now, like every other criminal charge, there are ways to challenge a drunk in public allegation. A defendant could challenge the probable cause of the arrest. Like in my blog post about 1538 motions, a case can be dismissed if the arresting officer arrested the defendant without sufficient probable cause. Danny may be not be drunk at all; he could suffer from a medical condition that caused him to fall onto the street.
The prosecutor also has to prove both elements beyond a reasonable doubt. A defendant could challenge the "public" aspect of the crime. If a person was arrested while in a hotel, or store, both private businesses, he or she could argue that he or she was not in a public place.
Another way to challenge a drunk in public charge is if the defendant ingested an intoxicating drug involuntarily. For example, say Alan wants to play a prank on his friend Stu. Alan buys Stu a drink, but drops a Rufilin into the drink. Unbeknownst to Stu, while taking a drink, he is also taking an intoxicating drug. If Stu later cannot care for himself, in a public place, and was arrested, he would be able to successfully beat the "drunk in public" charge.
A lot of cases involve a person who was drunk, but not so drunk that he or she could not care for himself or herself. If you or someone you know is charged with a drunk in public criminal charge, it is wise to retain a criminal defense attorney. The potential penalties are too great.
Most people are aware that it is unlawful, dangerous, and unwise to drive after a night out drinking. Some are unaware that it is a crime to be "drunk in public." Similar to a driving under the influence allegation, a drunk in public criminal charge could lead to a criminal record, jail time, and adverse employment consequences.
California Penal Code section 647 prohibits disorderly conduct. One aspect of disorderly conduct is being "drunk in public." Subsection (f) of Pen. Code section 647, prohibits being intoxicated in public to such an extent that you cannot care for the safety of yourself or others, or so drunk that you obstruct a street, sidewalk, or public way. Let's break down the elements:
(1) Intoxicated in a public place; and
(2) Cannot care for the safety of oneself or others, OR obstructing a street, sidewalk, or public way.
An arrest can occur if a drunk person is exhibiting behavior sufficient to meet element 2. One example: Danny the Drunk leaves the bar at 2:00 am, after having consumed ten shots of tequila. Danny the Drunk drank too much, and starts to have trouble walking. He can't go further than five feet, before he falls onto the street. Danny the Drunk is not hurt, but he blocks a group of nuns from walking by. Policeman Peter sees the whole thing and arrests Danny the Drunk for being "drunk in public."
Now, like every other criminal charge, there are ways to challenge a drunk in public allegation. A defendant could challenge the probable cause of the arrest. Like in my blog post about 1538 motions, a case can be dismissed if the arresting officer arrested the defendant without sufficient probable cause. Danny may be not be drunk at all; he could suffer from a medical condition that caused him to fall onto the street.
The prosecutor also has to prove both elements beyond a reasonable doubt. A defendant could challenge the "public" aspect of the crime. If a person was arrested while in a hotel, or store, both private businesses, he or she could argue that he or she was not in a public place.
Another way to challenge a drunk in public charge is if the defendant ingested an intoxicating drug involuntarily. For example, say Alan wants to play a prank on his friend Stu. Alan buys Stu a drink, but drops a Rufilin into the drink. Unbeknownst to Stu, while taking a drink, he is also taking an intoxicating drug. If Stu later cannot care for himself, in a public place, and was arrested, he would be able to successfully beat the "drunk in public" charge.
A lot of cases involve a person who was drunk, but not so drunk that he or she could not care for himself or herself. If you or someone you know is charged with a drunk in public criminal charge, it is wise to retain a criminal defense attorney. The potential penalties are too great.
Sunday, January 11, 2015
Seeking Post-Conviction Relief
A mother leaves her seat in the courtroom
and approaches the podium. The judge sits back and waits for her statement. As
she is about to begin, tears drop from her eyes. “My son is innocent,” she
says. “Please show him mercy.”
When a defendant is convicted and then
sentenced, after a sentencing hearing, where family members may give
statements, it is not the end of the case. Our judicial system provides a right
to an appeal. The statutory right to an appeal also includes a right to
appointed counsel, if the defendant cannot afford to retain one.
An appeal is limited to the “record.” The
record is everything that happened before and after the trial – preliminary,
trial, and sentencing hearings. Everything that is said by the prosecution,
defense attorney, defendant, and witnesses are recorded. Materials submitted
for evidence is also preserved for the record. Indeed, an individual unrelated
to the case should be able to see “everything” that happened with a particular
criminal case after it has concluded.
A defendant is referred to as the
“appellant,” when he or she appeals. The first document submitted is the
appellant’s opening brief. The opening brief is the opportunity for the
appellant to make his or her arguments about why the conviction should be
overturned.
Since arguments are limited to the record,
the appellant cannot submit additional evidence nor have new witnesses testify.
Put simply, the appellant can only raise legal issues related to the
proceedings. Typically, appellants will argue that certain evidence should have
been excluded during the trial. Or appellants may argue that there was a
constitutional violation committed during the criminal proceedings – the trial
judge made an erroneous ruling.
The opening brief will contain case law,
statute, and argument. After it has been submitted, the state will have an
opportunity to submit an opposition brief. The opposition brief will contain
counter arguments about why the trial was fair, and why the conviction should
stand. The appellant will get the last word, however. The appellant may file a
reply brief.
If the appeal is denied, the appellant may
petition for the California Supreme Court to review the court of appeal
decision. Most often, the California Supreme Court will deny review unless the
legal issues involve split decisions between the appellate courts, or the legal
issue is novel and has not been heard before (which is rare).
An appellant, and his family, need not
despair should the appellant lose his or her appeal. There exists
post-conviction relief outside of an appeal. For centuries, a petition for writ
of habeas corpus has existed. Writ of habeas corpus translates roughly to “why
are you holding the body?”
A petition for writ of habeas corpus is a
petition that allows a defendant to challenge his or her incarceration. Since
it is not a direct appeal, new evidence is allowed. More often than not, new
evidence will be submitted at the habeas level, like: DNA evidence, new witness
statements or recants, and other exculpatory information. Habeas cases have
been covered by the media. When an individual is exonerated because of DNA
testing, for example, the proceedings are usually habeas related. A petition
gives a chance to the defendant to right any wrongs that may have been done.
The same mother who cried now sits down in
a more comfortable setting. Although her son is confined in a prison hundreds
of miles away, she has some hope, even if small. An attorney approaches her and
extends his hand. “How can we help you today?”
Our office welcomes your inquiries about
post-conviction relief. Please remember that this blog contains no guarantees,
assurances, or legal advice. If you have any questions, it is best to contact
an attorney by phone. After a conviction , the burden shifts to the convicted.
Friday, December 5, 2014
'Constructive Possession' in Drug Possession Crimes
Both federal and state governments are changing the way drug crimes are prosecuted. Sentencing guidelines that require strict prison terms are being discarded for more court discretion. States are also implementing drug courts, or diversion programs, that allow defendants to enter into drug treatment programs in lieu of jail. There seems to be an understanding that drug offenders need treatment rather than punishment.
Even with positive changes in California, with respect to drug crimes, because of Proposition 47, which mandated that certain crimes be prosecuted as misdemeanors instead of felonies, there are still situations in which an accused may be wrongfully charged. For example, an individual may not even know that illicit drugs were near or by him/her at the time of his/her arrest.
Health and Safety Code sections 11350, et al prohibits the possession of certain controlled substances. "Possession" is not limited to drugs on a person, like in his pockets, wallet, or belongings. Possession can also be "constructive" or "joint."
"Constructive" possession has been defined in a number of cases on appeal in California. People v. Showers (1968) 68 Cal.2d 639 defined constructive possession as follows:
"The accused has constructive possession when he maintains control or a right to control the contraband. Possession may be imputed when the contraband is found in a location which is immediately and exclusively accessible to the accused and subject to his dominion and control."
"The accused is also deemed to have the same possession as any person actually possessing the narcotic pursuant to his direction or permission where he retains the right to exercise dominion or control over the property. People v. Mardian (1975) 47 Cal.App.3d 1. However, merely being near a drug, or being in association with someone in possession of a drug, in of itself, was insufficient to establish possession under the law. Exercise or control of an area still requires proof beyond a reasonable doubt.
Let's give a hypothetical, when"constructive" possession may be in dispute. Roommate A is living with Roommate B to save money. Roommate A does not abuse drugs. Roommate A is a student with a steady job. Roommate B smokes methamphetamine, but does so privately. Roommate A is unaware of Roommate B's personal habits. The police, on a tip from an informant, execute a search warrant in Roommate A and Roommate B's shared room. Roommate B is on vacation. Roommate A is studying. The police find methamphetamine in Roommate B's drawer, which is near Roommate A's bed. The police arrest Roommate A.
In the hypothetical above, Roommate A may be able to get the case dismissed because he was not in possession of the methamphetamine, including "constructive possession." In spite of the fact that he was near the drawer, and could possibly open the drawer, under California law, Roommate A probably did not exercise dominion or control over the property in the drawer. He didn't have the requisite intent, nor did he exercise control of Roommate B's drawer.
Substance abuse is most often caused by disease and studies have shown that mental health services, not prison, is the best way to combat drug crimes. Nevertheless, there are good reasons to retain a criminal defense attorney if you, or someone you care about, has been charged with a drug crime. Experienced attorneys can see if alternatives to jail are available. Further, if there are facts of the case that suggest an accused may prevail at a preliminary hearing or P.C. 1538 hearing, a criminal defense attorney could aggressively advocate on your behalf. Our office welcomes your calls and questions.
Even with positive changes in California, with respect to drug crimes, because of Proposition 47, which mandated that certain crimes be prosecuted as misdemeanors instead of felonies, there are still situations in which an accused may be wrongfully charged. For example, an individual may not even know that illicit drugs were near or by him/her at the time of his/her arrest.
Health and Safety Code sections 11350, et al prohibits the possession of certain controlled substances. "Possession" is not limited to drugs on a person, like in his pockets, wallet, or belongings. Possession can also be "constructive" or "joint."
"Constructive" possession has been defined in a number of cases on appeal in California. People v. Showers (1968) 68 Cal.2d 639 defined constructive possession as follows:
"The accused has constructive possession when he maintains control or a right to control the contraband. Possession may be imputed when the contraband is found in a location which is immediately and exclusively accessible to the accused and subject to his dominion and control."
"The accused is also deemed to have the same possession as any person actually possessing the narcotic pursuant to his direction or permission where he retains the right to exercise dominion or control over the property. People v. Mardian (1975) 47 Cal.App.3d 1. However, merely being near a drug, or being in association with someone in possession of a drug, in of itself, was insufficient to establish possession under the law. Exercise or control of an area still requires proof beyond a reasonable doubt.
Let's give a hypothetical, when"constructive" possession may be in dispute. Roommate A is living with Roommate B to save money. Roommate A does not abuse drugs. Roommate A is a student with a steady job. Roommate B smokes methamphetamine, but does so privately. Roommate A is unaware of Roommate B's personal habits. The police, on a tip from an informant, execute a search warrant in Roommate A and Roommate B's shared room. Roommate B is on vacation. Roommate A is studying. The police find methamphetamine in Roommate B's drawer, which is near Roommate A's bed. The police arrest Roommate A.
In the hypothetical above, Roommate A may be able to get the case dismissed because he was not in possession of the methamphetamine, including "constructive possession." In spite of the fact that he was near the drawer, and could possibly open the drawer, under California law, Roommate A probably did not exercise dominion or control over the property in the drawer. He didn't have the requisite intent, nor did he exercise control of Roommate B's drawer.
Substance abuse is most often caused by disease and studies have shown that mental health services, not prison, is the best way to combat drug crimes. Nevertheless, there are good reasons to retain a criminal defense attorney if you, or someone you care about, has been charged with a drug crime. Experienced attorneys can see if alternatives to jail are available. Further, if there are facts of the case that suggest an accused may prevail at a preliminary hearing or P.C. 1538 hearing, a criminal defense attorney could aggressively advocate on your behalf. Our office welcomes your calls and questions.
Thursday, November 6, 2014
Utilizing a Penal Code section 1538, Motion to Suppress, in a DUI Case
Not all criminal cases go to trial. In fact, more often than not, a criminal case will be disposed of prior to a trial. Plea deals are common because they can be beneficial for both the defendant and the People.
But, there are also circumstances when a case can be dismissed prior to a trial. One common motion that can be brought during the pre-trial stages of a case is a Motion to Suppress. Penal Code section 1538 provides the right of an accused to challenge evidence that may have been obtained illegally. Typically if the evidence is suppressed -- like the blood results of a DUI stop -- the case must be dismissed because the evidence is dispositive to the case.
One example of when a Motion to Suppress could be successful is when an officer stops an accused for a traffic stop that was unlawful. An officer cannot stop an individual without sufficient probable cause, a legal standard provided by the Fourth Amendment. Thus, if an officer reports that he stopped an accused for violating the Vehicle Code, but there was no Vehicle Code violation, the accused may be able to prevail at a P.C. 1538 hearing.
A criminal defense attorney has the responsibility to perform an adequate investigation. Evidence obtained by an attorney could lead to a decision to file a Motion to Suppress. An investigation can include, but is not limited to: requesting discovery from the prosecution, subpoenaing documents, and looking at possible video surveillance. It is now common for officers to have dashboard cameras, and also cameras on their persons. A video could show that a traffic stop was unlawful.
Some of my clients have asked what a motion consists of. A motion is a request for the court to do something. The party "moves" the court to make an order. A motion is started (usually) by an opening brief. The attorney files a memorandum with points and authorities (cases in support of the motion). Then, the prosecution (again, usually) files an opposition brief, highlighting their position against the motion. This allows the court to familiarize itself with the law and facts of the particular case. After the briefing with physical documents, there is an evidentiary hearing where witnesses testify. The arresting officer most likely will testify as to the facts of the stop or arrest.
A Motion to Suppress is a constitutional protection. It safeguards citizens from police abuses. There are other type of situations, as well, when a P.C. section 1538 may be appropriate. Law enforcement cannot exercise a warrant based on false information. Police cannot execute a warrant outside the constraints of the warrant. Facts should be scrutinized in every criminal case.
In conclusion, a defendant may not need to persuade a jury. There are pre-trial motions that can be potentially made, which could lead to a complete dismissal. It is important to contact an attorney should you be charged with a crime. We welcome your calls and questions.
But, there are also circumstances when a case can be dismissed prior to a trial. One common motion that can be brought during the pre-trial stages of a case is a Motion to Suppress. Penal Code section 1538 provides the right of an accused to challenge evidence that may have been obtained illegally. Typically if the evidence is suppressed -- like the blood results of a DUI stop -- the case must be dismissed because the evidence is dispositive to the case.
One example of when a Motion to Suppress could be successful is when an officer stops an accused for a traffic stop that was unlawful. An officer cannot stop an individual without sufficient probable cause, a legal standard provided by the Fourth Amendment. Thus, if an officer reports that he stopped an accused for violating the Vehicle Code, but there was no Vehicle Code violation, the accused may be able to prevail at a P.C. 1538 hearing.
A criminal defense attorney has the responsibility to perform an adequate investigation. Evidence obtained by an attorney could lead to a decision to file a Motion to Suppress. An investigation can include, but is not limited to: requesting discovery from the prosecution, subpoenaing documents, and looking at possible video surveillance. It is now common for officers to have dashboard cameras, and also cameras on their persons. A video could show that a traffic stop was unlawful.
Some of my clients have asked what a motion consists of. A motion is a request for the court to do something. The party "moves" the court to make an order. A motion is started (usually) by an opening brief. The attorney files a memorandum with points and authorities (cases in support of the motion). Then, the prosecution (again, usually) files an opposition brief, highlighting their position against the motion. This allows the court to familiarize itself with the law and facts of the particular case. After the briefing with physical documents, there is an evidentiary hearing where witnesses testify. The arresting officer most likely will testify as to the facts of the stop or arrest.
A Motion to Suppress is a constitutional protection. It safeguards citizens from police abuses. There are other type of situations, as well, when a P.C. section 1538 may be appropriate. Law enforcement cannot exercise a warrant based on false information. Police cannot execute a warrant outside the constraints of the warrant. Facts should be scrutinized in every criminal case.
In conclusion, a defendant may not need to persuade a jury. There are pre-trial motions that can be potentially made, which could lead to a complete dismissal. It is important to contact an attorney should you be charged with a crime. We welcome your calls and questions.
Monday, September 1, 2014
Will the Natural and Probable Consequences Doctine be Rejected in California?
A majority of murder, and other violent crimes, in California are gang related. Indeed, most of the post-conviction work that I have taken part in involves allegations of gang affiliation. Due to the nature of such crimes -- multiple individuals and lack of physical or testimonial evidence, the prosecution necessarily relies upon aider and abettor theories of criminal liability.
Under an aider and abettor theory, defendants can be convicted if they merely assist, encourage, or facilitate a crime. More specifically, they do not have to be the actual perpetrator of the physical crime against the victim.
Moreover, a defendant can be convicted if he or she aided a "target" crime, which naturally and foreseeably could have led to a more violent crime -- like murder.
In June of this year, however, the California Supreme Court curbed the "natural and probable consequences" doctrine. The criminal doctrine allows for the prosecution of aiders and abettors when they participate in a crime that was "reasonably foreseeable" to the target crime. In sum, an individual can be guilty of murder, if he assisted in a crime, which murder was a "natural and probable consequence." The rationale of the doctrine is deterring accomplices from partaking in criminal acts that may foreseeably lead to other more violent crimes.
But in People v. Chiu (2014) 59 Cal.4th 155, the California
Supreme Court held that a defendant can never be convicted of first degree
premeditated murder on a natural and probable consequence theory. In Chiu, the
defendant engaged in a street brawl involving 25 youths. The high school students fought one another indiscriminately
until one of them shot and killed another young man. The defendant was charged
with first-degree murder under the theory that he aided and abetted an
"assault," which premeditated murder of the perpetrator was a natural
and probable consequence. Defendant was sentenced to 25 years to life after he
was found guilty of first-degree murder. The California Supreme Court reversed because they did not think that the defendant could have had the mental intent necessary for first degree murder.
Now prosecutors must rely on evidence to show that defendants had the specific intent to aid a premeditated murder. It is insufficient to argue the natural and probable consequence doctrine, as Chiu negated its application to first-degree murder cases. This decision implies that the California Supreme Court wants to depart from the wide application of the natural and probable consequence doctrine. Chiu stated, in part:
"[T]he connection between the defendant's culpability and the perpetrators premeditative state is too attenuated to impose aider and abettor liability for first degree murder under the natural and probable consequences doctrine, especially in light of the severe penalty involved and … the public policy concern of deterrence."
It appears that Justice Chin opens up to the possibility that there may be other instances where an element of the non-target crime is so detached that the natural and probable consequence theory would not serve public policy. Other states do not even apply the natural and probable consequences theory, so it's possible that the California Supreme Court would withdrawal, or at least curb, its unjust application.
In fact, California may reject the entire doctrine. The California Supreme Court has granted review of a separate natural and probable consequence doctrine case in People v. Smith (Vince Bryan), S210898, D060317 Fourth Appellate District, Division 1.
Violent crimes, instigated by gang rivalries, are senseless and destructive to the community. But, when individuals are convicted of crimes that they did not intend or anticipate in directly, it also hurts the community. Many young men are duped into following irresponsible older gang members, who have no regard for societal mores. Lawbreakers should, and need, to be punished. Let's just make sure that the punishment is just and follows the rule of law.
Wednesday, August 13, 2014
Civil Compromise in a Theft Case
Despite these steps, people will sometimes take an item without consent. When this happens, the injured store will send a civil restitution demand letter to the perpetrator. Further, a theft charge is usually filed against the individual shortly thereafter. A misdemeanor or felony carries possible jail time, fines, and a permanent criminal record, which could affect employment in the future. So, theft can lead to both a civil and criminal case.
Under California law, when a person is charged with a theft crime, like petty theft, there may be an opportunity to have the charge dismissed.
A civil compromise is one way that a criminal charge can be dismissed. Pursuant to Penal Code section 1378, an injured party may indicate to the court that it has "received satisfaction" for the injury. In other words, the victim of the theft can represent to the judge that there was an agreement made between the parties. At that point, the trial court, in its discretion, may stay the prosecution and order the defendant to be discharged. The case cannot be adjudicated again. Let me be clear though that the judge is not obligated to accept a 1378 civil compromise. Also, a victim may not be open to a civil compromise.
While every company does not offer this type of civil compromise, a criminal defense attorney can certainly explore this option.
Moreover, a civil compromise is not the only way to successfully defend against a theft charge. A defendant may be able to argue insufficient evidence, or mistaken identity. There have been instances where an employee at the store made false accusations. A video may vindicate a defendant.
Similar to a drug diversion, sometimes a defendant can even receive a conditional dismissal. A conditional dismissal means that a court will eventually dismiss the case after a condition has been met.
My office has negotiated conditional dismissals in past theft cases. For example, one client had his petty theft charge dismissed after he completed 10 hours of theft classes. Such plea bargains enable the defendant to avoid jail time and other negative consequences.
Regardless of the different ways a case can proceed forward, it is important to have a criminal defense lawyer retained on your case. Experience and commitment goes a long way in a theft case. We welcome your calls and questions.
Monday, July 14, 2014
I Was Arrested for a DUI; Now What?
A California DUI carries some harsh penalties. Due to the nature of this offense -- it is a clear public safety concern, our state has elected to take a tough stance. But just like any other criminal charge, there are steps that an accused can take that will help him or her in the future.
THE DUI ARREST
When there is sufficient probable cause, law enforcement may investigate and arrest an individual for a DUI. While defense attorneys can later challenge probable cause, it is wise to be respectful when stopped for suspicion of a DUI.
You should be polite and cooperative with law enforcement. It does not mean that you should waive your rights, but it will not help to be combative during the stop. Cursing, yelling, and being rude will not make the officer go away. In fact, it will be mentioned in the police report.
However, you should not volunteer information. Exercise your right to remain silent. Miranda is the landmark case, which protects statements from being admitted into evidence if there has not been an affirmative warning, but Miranda warnings only have to be given after a formal arrest. Thus, law enforcement will always utilize your statements to assess guilt before a warning. Slurred words, admissions of guilt, and memory lapses can lead to problems down the road.
AFTER THE ARREST
If you have been arrested, you should exercise your right to an attorney. There is a reason that there is law school and a bar examination. Further, there is a reason why attorneys charged with a crime will almost always retain another attorney. It is difficult for someone, under an emotional state, to represent themselves.
More than that, retaining an attorney will mean that a professional can immediately begin to protect your rights. Experience and knowledge can go a long way in fighting a DUI charge.
Schedule your DMV suspension hearing, or have your attorney do it immediately. There are two aspects to a DUI, as discussed on my website. There is the actual criminal charge handled by the superior court, and the DMV aspect of the case. They are distinct and separate, although the court can impact what the DMV will do.
Within 10 days of the arrest, a hearing needs to be scheduled. A DMV suspension hearing is a great opportunity to explore probable cause, the officer's testimony, and other evidence that will be used against you. Do not sleep on your privileges with respect to licensing issues.
AFTER YOUR "OR" RELEASE
Finally, after you have been arrested and released under your own recognizance, exercise your right to information. The web has become a treasure trove of free legal content, including my blog and website. You should become familiar with the criminal, and DMV, process. Further, you should research potential DUI attorneys. An accused should be aware of the charge against him or her, and the consequences of that charge.
Our office invites your questions. We have experience in DUI, and other criminal cases. Remember that time is of the essence, so do not procrastinate if you or a loved one has been charged with a DUI.
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