Articles Posted in Criminal Defense

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Under a “little-noticed provision” on Proposition 64, the voter-approved law legalizing recreational marijuana, California residents with marijuana convictions may be eligible to have those felonies and misdemeanors reduced or, in many cases, fully expunged off their criminal records, according to The San Diego Union-Tribune. According to the San Diego District Attorney’s Office, the city has proactively expunged 700 criminal records since the law came into effect at the beginning of the year and released 55 people incarcerated because of marijuana. The city still has 4,000 cases awaiting action by the courts.

For California residents who have been impacted the most severely by their marijuana convictions, so-called “high priority” convictions, the public defender’s office and district attorney’s office have moved aggressively and quickly to expunge the records. These include California residents who have marijuana convictions preventing them from gaining employment or limiting their access to government benefits or housing.

According to Summer Stephan, interim district attorney for San Diego, “We want to be pro-active. It’s clear to us that the law was written to allow this relief, and it’s important that we give full effect to the will of the people, especially for those who are most immediately affected.”

The problem, according to the San Diego public defender, is that there is no unified system for identifying marijuana-related convictions. The current database only goes back to the early 2000s, therefore, individuals with marijuana convictions in California may need to proactively petition the courts for an expungement. “It won’t happen overnight, but we are committed to seeking relief for everybody who is entitled,” said Angie Bartosik, chief deputy primary public defender. Bartosik noted that for those seeking relief under Proposition 64, there is a form available online at courts.ca.gov and, for most, filling out the form will be sufficient to expunge their records.

Effectively expunging all marijuana convictions is a statewide problem. Only 5,000 Californians have sought to have their marijuana convictions removed from their records, according to the Drug Policy Alliance. Considering the fact that there were more than 500,000 people arrested for marijuana just between 2006 and 2015, this means that hundreds of thousands or more Californians are likely eligible. In San Francisco, where only 20 people have filed petitions for expungement, district attorney George Gascon announced that the city will proactively search and expunge all marijuana convictions dating back to 1975. The San Francisco DA estimates that this would include over 3,000 misdemeanors and almost 5,000 felony convictions. Continue reading

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In a remarkable story reported by the Voice of San Diego, neighbors reportedly called the police on a home in Chula Vista 53 times before Border Patrol and the San Diego County Sheriff’s department stumbled upon a human smuggling ring. The city had been getting reports for over five years and still failed to uncover the ring.

Back in November of last year, police pulled over a vehicle for a taillight infraction, without suspecting that anyone involved was guilty of other crimes. Panicked, the passenger took off. The chase led them directly to a home where police and border patrol responded to a request for backup. They happened upon a human smuggling event taking place right in the driveway.

Police records show that 53 calls have been made on that house. The neighbors have reported everything from grand theft, assault, child abuse, and domestic violence. The Police Department says they did not have any indication a human smuggling ring had been operating throughout that time, which is why nothing was done about it the first 53 times. Both Border Patrol and the Police Department ended up making 12 arrests that day, most of which were undocumented immigrants. Nine were taken by Border Patrol. Three of them face alien smuggling charges, while the other six are being held in federal custody as material witnesses in the smuggling case.

However not everyone is convinced that it was sheer chance. Ginger Jacobs, an immigration attorney, said she is not familiar with this incident but has seen other cases in which immigration officials used traffic violations to stop and detain undocumented immigrants. Jacobs said it is not uncommon for Border Patrol to look for people as part of an immigration sting by looking for their cars. The two agencies have flatly rejected that they were looking for a reason to pull the suspect over.

Immigration Pretext Traffic Stops

Traffic stops motivated by immigration status seemed to have surge since Trump took office, all the way from California to states like Georgia. In fact, the Supreme Court has already partially upheld an Arizona law requiring police to make reasonable attempts to determine an individual’s immigration status if there was reasonable suspicion s/he was unlawfully present in the U.S. See Arizona v. U.S. 132 S. Ct. 2492 (2012). The police can currently pull you over for almost anything they deem legitimate (ie. tinted windows, texting while driving, etc.). While local police do not have jurisdiction to enforce immigration status, they can detain you long enough to call ICE or border patrol over to investigate you further. Continue reading

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In 2017 alone, the California legislature passed nearly 900 bills that Gov. Jerry Brown then signed into law. Most of them take effect in January 2018. Here is a summary of the key criminal law changes that will take effect this year:  

  • No California school employee can carry a concealed weapon onto campus. Before, school officials had discretion over the issue.
  • Anyone who “willfully records a video” of a violent attack as an attacker or accomplice and streams it online on sites such as Facebook could receive tougher punishment.  See A.B. 1542.  The new law does not require a judge to hand down the tougher sentence, and applies only to the 23 existing crimes in California identified as “violent” felonies.
  • No juvenile offenders will have to serve life without parole and those already behind bars would become eligible for release after 25 years. This reform is intended to ease punishment and fines for young people.
  • Counties may no longer charge fees to a family for everything from detention to monitoring of juveniles. This old policy was criticized for disproportionately affecting low-income communities of color.
  • It is now a misdemeanor to openly carry an unloaded long gun in public unincorporated areas outside of incorporated cities that are deemed by counties as not appropriate for such firearms. This law was requested by the Los Angeles County Sheriff’s Department to expand state law that already bans openly carrying handguns in areas outside cities.
  • Californians convicted of crimes that require them to get rid of their firearms must now prove they have done so before their court cases can be closed. This change is due to Proposition 63, a ballot measure that passed last November. The measure was obviously opposed by the NRA.
  • Assembly Bill 41 would require law enforcement agencies to report to the state how many sexual assault kits they collected and have examined, and how many they have not. Agencies also have to explain why a rape kit was not tested. This law was opposed by the Sheriffs Association that claims testing every single rape kit will be a financial and resource burden to the state.

Continue reading

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It has been reported that two men, Jon Ritzheimer and Ryane Payne, involved in the occupation of Malheur Wildlife Refuge in Oregon, haveviolated their release conditions by visiting the Bundy ranch in Nevada without permission. Evidently, the evidence was in Facebook photos and discovered by a federal pretrial services officer in Oregon who notified Brown. As a result, U.S. District Judge Anna Brown has moved up Jon Ritzheimer’s date to surrender to prison from Feb. 15 to Jan. 12. Ryan Payne was ordered to return to home detention in Las Vegas. Both men have been forbidden from having contact with any defendant from either the Oregon or Nevada standoff cases before their prison sentences begin.

Originally, Mr. Ritzheimer’s release condition had specified a no-travel restriction that only allowed him to travel from Arizona to Oregon for court proceedings. Mr. Payne was given permission to go from Las Vegas to Montana for Christmas after a mistrial was declared last month for the Bundy-affiliated defendants involved in the Nevada armed standoff in 2014. Neither of the men was allowed to go to the ranch. Judge Brown decided to deal with the allegations informally instead of through formal proceedings.

Violating Release Conditions in California

There are several ways a court can conditionally release you from prison or jail. You can be released on bail before your trial proceedings start, released on your own recognizance (which does not require paying bail), or you can be released on parole after you have already served some jail time.

If you have been released on your own recognizance, it means you have simply promised to attend all court dates and proceedings. See CA Penal Code § 1318. This option is saved for those who are a low flight-risk and are not accused of serious crimes. Failure to appear in court then, results in another misdemeanor if you were charged with a misdemeanor, and a felony, if you faced a felony charge.

If you have been released on bail, that can come with certain conditions from the judge, such as staying away from certain people. A violation of a bail release can result in either a warning, arrest, a revocation of bail (going back to jail), an increased amount of bail, more restrictive bail conditions, and even a contempt of court charge. Continue reading

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In San Diego, criminal charges were filed against a a La Jolla couple accused of maintaining dangerous, substandard living conditions at a Mid- City apartment complex they own. This was announced by the City Attorney’s Office earlier this week. John and Mahin Nobe, who currently face 10 criminal charges, are repeat offenders who have been previously prosecuted for similar violations and for leasing to illegal marijuana dispensaries. Amongst the charges are misdemeanor charges of providing inadequate heating and improper wiring as well as permitting an infestation of vermin and visible mold growth on their property.

Prosecutors allege that the couple’s Rex Avenue apartment complex in Mid-City was leased in July, August, and September to seven Congolese refugee families with young children. The apartments were rented for up to $2,250 a month. The families complained about the substandard conditions, but their requests were ignored. A city inspector with the Code Enforcement Division of the Development Services Department found numerous violations, including mold, rodent and roach infestation, inadequate heating, inadequate sanitation, improper electrical connections and a lack of proper fire exits and fire extinguishers. It is also reported that the inspector found junk outside the building. The apartments were also illegally converted from two-bedroom apartments into three or four-bedroom units.

The City Attorney’s Office, Administrative Law Judge Michael Scarlett ruled in an administrative ruling that the property was substandard under city and state codes and considered a public nuisance earlier this month. The judge ordered the couple to reimburse the city of San Diego $34,278 in relocation benefit payments advanced by the city to the seven families. They were also assessed a civil liability of $10,000 for their failure to pay relocation benefit payments directly to their tenants. They were also ordered to reimburse the city for the $6,845 in investigation costs.

Criminal Liability on Landlords

California Law requires landords to ensure that certain conditions are met to make the living space habitable and safe for tenants. These conditions ensure proper electric, gas, and plumbing utilities as well as getting rid of fire hazards. Landlords are also legally obligated to secure the premises in order to prevent foreseeable criminal acts in the area, such as robberies or thefts.  This means locks and appropriate security.

Lastly, S.B. 655, which was signed into law by Governor Jerry Brown in 2015, makes it a misdemeanor for a landlord to fail to provide things such as inadequate heating or failing to remediate a mold problem. Continue reading

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A San Diego sheriff’s deputy is under criminal investigation, as three additional women now have come forward with legal claims alleging that he improperly groped them under his color of authority. Deputy Richard Fischer has been placed on administrative leave while Sheriff Bill Gore and investigators conduct separate internal and criminal probes of the accusations. It is reported that 10 women have accused Fischer of sexual misconduct.

The county of San Diego now faces one filed lawsuit and two legal claims, which are required to be filed in advance of civil litigation as a result of the allegations. The accusations, one of which dates back two years, could cost the county millions of dollars in legal settlements. All three women are being represented by San Diego attorney Dan Gilleon. According to Gilleon, the three victims spoke out after being inspired by each other.

The latest allegation comes from a San Marcos woman, whose claim was filed on behalf of her by attorney Gilleon. According to this claim, the deputy hugged her without consent and grabbed her buttocks. According to the claim, Dep. Fischer tried to kiss her. The claim seeks more than $6 million, plus “punitive damages against Dep. Fischer in an amount sufficient to punish him and his evil conduct, and to deter others from doing what he did.” It also references another lawsuit filed earlier this month, resulting from a groping incident in 2015.

Three of the women said in a joint interview Wednesday that they are angry and frustrated that Fischer has yet to be arrested, and in addition, is not even facing charges. There is the underlying concern that the officer is being protected by the sheriff and District Attorney Summer Stephan.   Defendant Fisher has not responded to requests for comment.

Claims Against San Diego County

Before a lawsuit is filed against the county, claims against the county must be completed in accordance with the California Government Code, sections 900-915.4.  The county then has 45 days to process and investigate your claim. The result of the claim may result in a settlement offer or a formal denial.

If the settlement or claim does not give the victim what he or she wants, the victim has a right to file a civil lawsuit against the county. Most of the time, that is the only way to obtain justice against police misconduct. Continue reading

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At the end of 2017, Governor Jerry Brown announced pardons or sentence reductions for about 150 convicted criminals, including eight cases whose crimes were committed in San Diego County. In total, the governor pardoned 132 people and commuted the sentences of 19 people.  This included pardons for about 60 people convicted of making, selling, or possessing drugs, including marijuana. Only one of the cases from San Diego county was a commutation.

Amongst the cases of pardons, was that of Jeremy Stewart, who was convicted in 2010 for burglarizing two homes and stealing thousands of dollars worth of property. Under the three strikes law, he was sentenced to 70 years to life in prison. His prior convictions included other burglaries, petty theft, receipt of stolen property, and being a felon in possession of a firearm.

According to Brown’s commutation, Stewart acknowledged his criminal history and a drug addiction. He has been a model prisoner and during his incarceration received a degree in social and behavioral science from Coastline Community College. As a result, he will be released on parole, with the support of the Board of Parole Hearings.

What is the Difference Between a Sentence Commutation or Pardon?

Most governors in all 50 states have the power to grant pardons or reprieves for criminal offenses under state law. A pardon wipes out the conviction and makes it so the crime effectively never happened, while a commuting of a sentence merely reduces the sentence.

How to Apply for a Pardon

Instructions on how to apply for a pardon can be found on the state of California website. To be considered, an applicant must have been discharged from probation or parole for at least 10 years without further criminal activity during that period. There is no fee for applying for a pardon.

Additionally to qualify for a pardon, you must be a resident of California, and the conviction must be from the state of California. The Governor of California cannot grant a pardon for a conviction from another jurisdiction, such as another state or a federal proceeding. The first step in applying for a pardon is to obtain a Certificate of Rehabilitation from the Superior Court in the county where the applicant currently lives. If the Court issues a Certificate of Rehabilitation, the certificate is forwarded to the Governor’s Office where it automatically becomes an application for a pardon. Once an application is submitted, the review process must take place. If the governor decides to take action, the applicant will be notified. Continue reading

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It has been reported that Governor Jerry Brown signed into a law that would make it a crime to “willfully and repeatedly” decline to use a senior transgender patient’s “preferred name or pronouns.”  SB 179 (“Gender Recognition Act”) was signed into law back in October. The law will allow individuals to update state-issued identification documents (including birth certificates, state identification cards, and driver’s licenses) to select “nonbinary” as their gender.

Specifically, S.B. 179 states: “It shall be unlawful for a long-term care facility or facility staff to take any of the following actions wholly or partially on the basis of a person’s actual or perceived sexual orientation, gender identity, gender expression, or human immunodeficiency virus (HIV) status.” Among the unlawful actions are “willfully and repeatedly” failing to use a transgender person’s “preferred name or pronouns” after he or she is “clearly informed of the preferred name or pronouns.”

However, there has been some confusion about the consequences of the law. The sponsor, Democratic state Sen. Scott Wiener, has claimed that nobody is going to be criminally prosecuted for using the wrong pronoun. Rather, Wiener says that the bill is aimed at at protecting transgender and other LGBT individuals in hospitals, retirement homes, and assisted living facilities. It is intended to ensure that those medical facilities accommodate transgender people and their needs, including letting them decide which gender-specific bathroom they prefer to use.

This law may also affect employment law, as employers should also allow both nonbinary and transgender employees to indicate their preferred name and choice of pronoun while updating their staff health records.

It is reported that a healthcare worker who is found guilty of repeatedly breaching the law would be facing a maximum fine of $1,000, a year in prison, or both. The proposed legislation has met fierce opposition from conservative groups, criticizing the law’s overreaching authority and the threat to freedom of speech.

Up until now, crimes of discrimination, were covered under California’s hate crime laws, which are covered under California Penal Code § 422. Continue reading

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According to witnesses, a man who likely suffered from some form of mental illness was dancing in the center divider of the I-5 north of Palomar Street in Chula Vista before being hit by a car and then by a motorcycle. The victim has been identified by the San Diego County Medical Examiner’s Office as 40-year-old Ricardo Jose Borrego. He was pronounced dead at the scene.

It is reported by the California Highway Patrol office that the first car that hit Borrego left the scene and is still being sought. Shortly after the initial collision, a 30-year-old motorcyclist then hit Borrego who was already down in one of the lanes. The cyclist himself lost control of his bike and went down, suffering some injuries. After that, a Toyota tundra behind the cyclist swerved in an attempt to avoid hitting Borrego, and ran him over.  

According to a CHP incident log, 911 callers said Borrego was wearing black clothing and dancing in the center divider before he attempted crossing the freeway.

California Hit and Run Accidents

It is a crime to get into a car accident and leave, regardless of whether it was your fault or not.  Specifically, California Penal Code § 20002 states that in order to receive a hit and run charge, you must have:

  • Left the scene of the accident without first identifying yourself to those involved; and
  • Damaged another person’s property.

There are two types of hit and run accidents one can be charged with – either a misdemeanor or felony. A misdemeanor involves property damage and is punishable by $1000 fine and up to six months in jail. A felony involves injury or death to another party, and punishable by up to a $10,000 fine and four years in jail.

Legal Defenses

You can fight hit and run charges if you did not realize you had been involved in an accident (ie. you did not intentionally leave the scene), or if your car was the only thing damaged. Continue reading

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While defense lawyers attempt to get through the nearly 100 cases involved with the Dakota Access protests, the sudden imprisonment of two activists came as a shock to them, making them wonder if the state has decided to be vindictive.

Alex Simon, 27, a teacher from New Mexico claims that he was singled out and unjustly arrested. He served 13 out of the 18-day sentence for locking arms with activists against a police line on October 22, 2016. That same day, 140 others were arrested with him. Aside from himself, only one other activist who received a jail sentence, 65-year-old Mary Redway, a retired environmental planner from Rhode Island.  Ms. Redway claims she was jailed immediately, and she served four days inside the women’s booking cellblock of the Burleigh Morton Detention Center. In fact, the booking guard refuse to believe that she had been jailed for “disorderly conduct” since no one ever receives a jail sentence for disorderly conduct.

So far, 310 cases for activists arrested during the Dakota Access Pipeline controversy have been dismissed or acquitted. An additional 107 activists made plea deals, and 24 cases have had pre-trial diversions, and one case has made an appeal to the North Dakota Supreme Court.  Another 109 cases are inactive, and 259 cases remain to be tried, calendared until July 2018. In total, the Water Protector Legal Collective reports that 854 people were arrested during the encampment of the pipeline.

Judge Merrick, one of the judges on the case, was one of the petitioners who attempted to change the Supreme Court law to stop out-of-state attorneys from defending out-of-state defendants.  The petition failed after the North Dakota Supreme Court received 536 comments against changing the law. In October Rep. Kevin Cramer (R-ND) petitioned Jeff Sessions to help prosecute “to the fullest extent of the law any criminal who try to destroy energy infrastructure.”

Protest Charges

Despite our First Amendment right to free speech, law enforcement officials can stick a number of charges against you just to retaliate against you for protesting.

They include but are not limited to:

  • Criminal trespass
  • Loitering
  • Incitement/rioting
  • Blocking a sidewalk or sweet
  • Failure to cooperate with lawful orders from police
  • Disorderly conduct
  • You can also be charged with violations of city noise ordinances

If you are arrested at a protest, do not resist the arrest; police will certainly place additional charges against you if you do. You do have the right to ask why you are being arrested. Beyond that, you have the right to remain silent, and you should exercise your right to ask for a lawyer immediately once you are taken into the booking facility. You should have the number of your criminal defense attorney ready, and should not go to a protest these days without being prepared with your own lawyer. Continue reading

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