New 2016 Law Will Require a Database for Police Stops

In the wake of tragic police stories around the country, California took a step in transparency and accountability. Governor Brown has mandated that law enforcement agencies develop a program by 2018 that would allow them to collect and report data on the people they stop. Data will include perceived race and ethnicity, and the cause for the stop.

Similar to other actions taken, Governor Brown cited the phenomenon of "jail and prison populations [exploding]." He also discussed the byzantine California Penal Code, which "[covers] every conceivable form of human misbehavior." Since his day first day in office, he has been serious about criminal justice reform. He believes that this database will result in more justice and more fiscal savings.

Police are not allowed to stop individuals at whim. There must be probable cause for an investigatory stop. "Driving while black or brown" will not suffice. A reported stop that lacks probable cause will face scrutiny from law enforcement, attorneys, and judges. This is a step in the right direction. Far too often cases will be based off an illegal stop.

A separate 2016 law will require protocol to be established for the handling of body cameras worn by police officers. The law intends to ensure that recordings are not mishandled or damaged. Again, criminal litigation relies heavily on recorded evidence. A video may contradict a witness statement, or result in exculpatory evidence for the defendant.

Like stated in previous blog posts, California has a problem with over-incarceration but steps are being taken to address them. These laws will address issues that begin at the outset of a criminal case: the initial police stop and evidentiary support for an arrest. A person cannot be convicted, most of the time, if an arrest was unconstitutional.

If you, or someone that you care about, is arrested for a crime, it is important to seek the advice of experienced counsel. Laws are ever changing and complex. It is essential to consult with someone who may be familiar with new laws that could impact your case.

Recent Data Shows California's Realignment Doesn't Harm Public Safety

A few years ago, California passed a number of bills related to criminal justice reform. Due to prison overcrowding, and constitutional concerns, Governor Brown led the charge to reduce the bloated prison population. Propositions 36 and 47, which dealt with the punitive three-strikes law and over-sentencing of non-violent theft/drug crimes respectively, were passed with overwhelming majorities.

An older law, passed in 2011, also helped reverse the rapid increase of state inmates. "Realignment" put non-serious, non-violent, non-sex offenders in county jail rather than state prisons. Instead of being put into the care of parole, these non-violent inmates were placed into the custody of county-based probation programs. This helped the overloaded parole board. Also, violations resulted in county jail terms, rather than prison terms.

The opposition to Realignment had rational arguments, but so far their fears and concerns have been proven wrong. Despite their claims that crime would surge, citizens of California knew that the status quo was hurting their state and took the purported risk. It was worth it.

Now, the San Diego Tribune is reporting that Realignment does not harm safety. Since Realignment, crime has remained relatively low. Both in 2013 and 2014, crime rates dropped. Property and violent crimes are now at historic lows. Some experts believe that it is too early to make judgments, but overall, the data shows a trend downwards in violent crimes.

Reduction in crime rates is not exclusive to Los Angeles or California. Throughout the United States, crime has been down. The FBI data shows crime rates at 1960 levels. All of this is good news for those who advocate for criminal justice reform. Reducing prison populations will save money, combat recidivism, and put convicts in a position where they can re-assimilate.

Communities have been damaged enough from aggressive policies of over-incarceration. Let's hope that the data continues to reflect the benefits of changing how we, as a state, handle crime.

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.

California Posed to Reform Criminal Justice

Come November, California voters will get the opportunity to vote yes on Proposition 47. The proposed legislation would be beneficial for everyone -- residents, defendants, and inmates. As a criminal defense lawyer, I get to see everyday how our criminal justice system needs urgent reform.

A short while ago, the United States Supreme Court ordered that California lower its prison population. The harsh three-strikes law implemented 20 years ago led to a surge in incarceration. Also troublesome was the severity of non-violent crimes like: petty theft, fraud, forgery, and most drug crimes.

The proposition on the ballot will help allay some of these problems. First, it will mandate that a large amount of non-violent crimes be charged as a misdemeanor instead of a felony. This will ensure that individuals involved in a theft, in an amount under $950, and other individuals involved in personal drug crimes, will not face prison time. They will face jail time instead.

Reclassifying some felonies to misdemeanor will help but Proposition 47 does more. It will directly allow already incarcerated individuals apply for relief if they are eligible. Thus, those individuals already in prison for possibly stealing an item less than $950, and where violence was not involved, could be released. This will alleviate some overcrowding.

The savings derived from the release of inmates will benefit the community at large. Money from the budget will not go towards overcrowded prisons. Instead, all of the savings will be used for mental health programs in California. People who have struggled with substance abuse will be able to seek out help. Those that need counseling will receive it. These preventive measures do far more than mass incarceration to decrease recidivism.

Opponents cannot claim that Proposition 47 will lead to more violence because the reforms will only impact those who are involved in a non-violent crime. Further, the proponents of the reform make some great arguments, both legal and moral.

One of the biggest backers of Proposition 47 is a conservative Christian who believes in redemption and forgiveness. He was encouraged by prison ministries, a non-profit organization founded by Chuck Colson to help inmates readjust to non-prison life. Mr. B. Wayne Hughes Jr. wants to use his wealth to do good for those who are trying to change their lives for the better.

I encourage you to vote yes on Proposition 47. Further, if you want a consultation with respect to a criminal charge that may be impacted by this legislation, I welcome your calls. 

Civil Compromise in a Theft Case

Allegations of theft usually take place at large retail stores like Target, Sears, and Walmart. These establishments have their own security protocols in place, including but not limited to: guards, cameras, detectors, and other devices. These steps prevent merchandise from being taken unlawfully.

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.

Striking a Balance in Rape Prosecutions

Rape and childhood sexual abuse are sensitive subjects no matter the setting. In the criminal justice context where victims and society sometimes seem inherently at odds these conversations can become even more difficult. Set against a backdrop of rape culture and feminism which so often feature in this discourse, it can be challenging to present current issues in a balanced yet sensitive manner. No one worth listening to seriously condones sexual assault of any kind; but to victims, who often face unfair and damaging attacks on their credibility, character, and experiences, any discussion of judicial restraint can seem like a direct insult to their undeniably traumatic circumstances. Yet without a balanced system of justice no one, not even rape victims, is better off in the long term. In order to promote the integrity of the system that protects each of us from the misdeeds of our fellow citizens we must at times engage in sensitive discussions regardless of the risks. Senate Bills 926 and 924, which seek to greatly increase the statute of limitations for both rape prosecutions and civil lawsuits alleging damages from rape, represent just such an occasion. In an effort to present this discussion in as neutral a light as possible, we’ll cover both sides of the debate in separate sections and leave it up to you as readers to form your own opinions of the better outcome. Comments will be disabled on this article to prevent abuse.

Statutes of Limitation

Under the law, many, possibly most, criminal charges must be filed within certain closely defined windows of opportunity. An attempt to file charges too late will usually result in dismissal of the case and legal exoneration for the defendant. There are a number of very good reasons to enforce these kinds of limitations on prosecution. Of primary concern is the quality and availability of evidence, both for and against the defendant. Over time, people pass away, witness memory fades, DNA samples degrade, locations are altered, law enforcement officers are promoted or even retire, and both perpetrators and their victims mature and – to the extent possible – move on with their lives. In civil cases, insurance policies expire or are renegotiated based on past performance, businesses books are settled, staff turns over, new investments made and old risks calculated. These lists could go on ad infinitum, but what should be clear is that trying cases becomes increasingly difficult as the facts supporting the case age.

On a more sinister note, allegiances and personal perspectives can also change over time; often dramatically. Lovers fall out, children grow up, employees are fired, and business deals turn sour. While reliable statistics are hard to compile, it is likely that the majority of sexual assault allegations have merit. Whether, in a particular case, the correct perpetrator has been identified, the extent of the offense properly defined, or the factual circumstances accurately recorded; however, is an open question. Unfortunately, these details can, and sometimes are, affected by the personal relationships at stake in a case; individual perspectives can change over time.

To help guard against degradation of the evidence or the possibility of unfairly changed perspectives, statutes of limitation cap the time in which charges must be brought. These limitations serve to provide some measure of finality to society and to protect against abuse of the legal system.

Time to Recover

On the other side of the equation, victims of sexual assault, particularly children, undeniably need time to heal. Medical research suggests that in many cases individuals have difficulty remember the specifics of a traumatic incident, or even that an incident occurred at all. Psychologists tell us that this memory block is a defense mechanism employed by our brains to help victims move on and heal after an attack. To further complicate matters, many victims are stuck in a nightmare of continuing abuse and totally lack any power to seek justice against their abusers. Young children may suffer at the hands of an abuser for years before ever realizing that they can tell someone about the attacks. Such victims may need many years to recover enough to report the abuse to the legal system and sometimes much longer still to fully appreciate the extent of the physical and emotional damage done to them by the attack(s).

A legal system insensitive to this reality will be unfairly stacked against the very people the system is designed to protect. For this reason, unduly short statutes of limitation cut off the possibility of persecution before victims have had a time to get their bearings after an attack or attacks and give perpetrators of sexualized violence a “get out of jail free” pass by virtue of the very abuse they have committed. Striking the right balance isn’t easy.

Senate Bills 926 and 924

Enter the California Senate. Two bills currently under consideration that would dramatically alter the current system of limitations on prosecution and civil lawsuits against perpetrators of sexual violence. Current law gives victims of childhood sexual abuse until their 28th birthday to report the abuse to authorities and until their 26th birthday or three years after the damage from the abuse is recognized medically to file a civil lawsuit. Introduced by Senator Jim Beall, SB 926 and 924 would raise these caps to 40 years old and five years from the discovery of damage from the abuse respectively. This isn’t the first time the Senator has tried for this change. In the last legislative session a similar package of bills passed both houses of the legislature with wide margins enjoying support from both political parties; it was ultimately vetoed by Governor Brown who took the time to write an uncharacteristically long signing statement describing his reasons for the veto.

“there comes a time when an individual or organization should be secure in the reasonable expectation that past acts are indeed in the past and not subject to further lawsuits,” given that evidence can be lost, memories can fade and witnesses can become unavailable over time. “This extraordinary extension of the statute of limitations, which legislators chose not to apply to public institutions, is simply too open-ended and unfair.”

There are some distinct differences between the vetoed bill and the current effort including the extent to which the changes would apply to the past and exactly which entities could face the revised guidelines (the new bills are not retroactive and apply equally to both public and private entities) and so it remains unclear exactly how the bills will fare in this session or whether, if passed, they too will face a veto action.

Innocence Under Threat

300 exonerated, Too many wrongfully convicted.

To most people, largely those who have never been under its supervision, the Criminal Justice System in America is about catching the guilty and punishing them; removing them from society. From this perspective, justice equals a conviction, and perhaps a sufficiently severe sentence. Constitutional guarantees like the right to an attorney, the protection against forced self-incrimination, or provisions for the humane treatment of suspects are roadblocks to justice; merely tolerated in a civilized era. To society at large, the justice system is effective. Suspects are almost as good as convicts, confessions obvious signs of guilt, and eyewitness identifications nearly the word of god. “Getting off on a technicality,” is the buzz phrase the lay observer caustically tosses at anyone the system exonerates despite even a modicum of evidence.

To individuals like Sylvester Smith, convicted for the molestation of two little girls he never touched, the justice system has a darker side. Smith served 20 years for a crime he was later conclusively proven not to have committed while the real offender ran free, eventually committing a murder which would have been prevented had the system not misidentified Smith as the primary suspect in the molestation case. Few people, however, stop to fully consider this other side of the system, to understand the reason behind the protections afforded to criminal suspects by the law, or to appreciate their necessity.

A system in jeopardy

Unfortunately, statistics paint a rather grim picture of the efficacy of our criminal justice system and stories like Smith’s are far too common. While a large portion of offenders are indeed caught and convicted, grave injustices abound. Despite the hard work of a great many astute detectives, conscientious prosecutors, diligent defense attorneys and dedicated judges a shockingly high number of completely innocent individuals are caught and ground to pieces in the wheels of justice; sometimes in clear violation of state and federal civil liberties. While exact numbers of wrongful convictions are hard to gauge, a recently released report shows that more than 2000 felony convictions have been overturned as unfounded since 1989, over half due directly to police scandal. The average wrongful prison sentence: 13 years.

Faced with this harsh reality, some activists are pushing for much needed reforms. At the front of the pack is the Innocence Project, a non-profit organization dedicated to utilizing DNA evidence to overturn the convictions of innocent suspects. Among the several issues identified by the innocence project as most commonly leading to a wrongful conviction, erroneous eyewitness identification, false confessions, and faulty scientific evidence are the worst offenders.

Mistaken Eyewitnesses
According to Innocence Project statistics, 73% of defendants exonerated by post-conviction DNA testing were put behind bars due in part to mistaken eyewitness identification. Despite the fact that research consistently demonstrates the inherent unreliability of such identification (in fact, eyewitness identification has been shown to be one of the least reliable pieces of evidence in a criminal trial), most jurisdictions continue to utilize the tool and juries treat such identifications as nearly infallible in practice. There are, however, ways in which eyewitness testimony can be used without sacrificing justice for the sake of efficiency; and reforming the use, and collection, of eyewitness testimony is critical to improving the quality of our judicial apparatus. 

False Confessions
While confessions are often considered the gold-standard of criminal evidence and few people who have not faced a harsh police investigation can imagine ever offering a false confession, a surprisingly high number of wrongful convictions nonetheless involve this particularly troublesome item of evidence. The subject of two different Constitutional provisions --the fifth and sixth amendments-- and a number of widely recognized Supreme Court decisions, Miranda warnings are perhaps the best known, confessions can be problematic at best, yet once submitted to a jury they are almost always damning.

Bad Science
Scientific evidence can often go awry; responsible for about 50% of wrongful convictions which were later overturned by new DNA evidence. While DNA analysis or fingerprint matching, for example, have undergone rigorous scientific exploration and demonstration, individual investigative and lab practices vary dramatically throughout the country, sometimes even throughout a single state. Unless carefully managed, such scientific evidence is less than worthless and, in some cases, actually leads to disastrous results. Contaminated samples, improper transportation and handling, and lab mistakes can all lead to false positive connections which in turn can lead to wrongful convictions.

Reform

Serious problems face our nation’s criminal justice institution and the work done by the Innocence Project and other similar organizations is vital, both to the innocent convicts exonerated as a direct result of these groups’ efforts and to the population as a whole made safer by the systemic reforms for which these organizations advocate. To learn more about these serious problems and the ways in which you can help to improve our system of justice, please visit the Innocence Project directly. To see whether you or a loved one has a valid post-conviction case, contact our office.