Articles Posted in Criminal Defense

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In a unanimous 5-0 vote at the California Public Utilities Commission (PUC), state utility regulators voted to require annual background checks for drivers at Uber, Lyft, and other ride-share companies, but decided not to subject them to the fingerprinting required of taxi drivers. Instead, rideshare companies like Lyft and Uber will be required to use contractors accredited by national association of background screeners and report the results to the state commission. They must examine criminal records and disqualify drivers who have been convicted of violent felonies or sex crimes, or convicted of driving under the influence within the last seven years.

PUC members said that the changes would strengthen the previous rules, which barred drivers with certain types of criminal records and registered sex offenders but did not require periodic background checks. They rejected the arguments of taxi drivers that ride share companies needed to do the same thing because “the costs outweigh the benefits.” Because ride-share drivers are their own independent contractors, the cost of paying for their own fingerprinting would be an unfair economic burden born by the individual, and not the company.  The PUC claims that fingerprint records, which go through an FBI database, are not always accurate and could disproportionately affect minority drivers.

Advocates of fingerprinting, such as the taxi companies, say the new requirements have failed to spot drivers with criminal records.

Fingerprint Background Checks

The California Department of Justice (DOJ) is mandated to maintain the statewide criminal record repository for the State of California. Sheriffs, police, probation departments, district attorney offices, and courts have to submit arrest information. The DOJ uses all this information to compile “RAP sheets” which are criminal records of arrest and prosecution. RAP sheets are based upon fingerprint submissions.

While all criminal background check requests must be authorized by statute, some are mandatory while others are permissive. Background checks have become the norm, for employers, rental agencies, etc.

In California, fingerprinting must be performed by a certified fingerprint roller or qualified law enforcement personnel. The live scan operator checks the applicant’s identification, inputs the applicant’s personal descriptor information, captures the applicant’s fingerprints electronically, and transmits the data to the DOJ. Once it is received, the DOJ then checks the fingerprint against the fingerprint database, which holds the fingerprints of criminal suspects, government employees, military personnel, and those with security clearances. If your fingerprints do not come up associated with a RAP sheet, then you are considered to have passed the fingerprint criminal background check. Continue reading

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Blaming an erosion in public safety, California law enforcement and victims’ rights organizations recently introduced an initiative that would expand the list of violent crimes and make other changes. This is likely the backlash to the series of legislative changes that passed into law in 2017 that was intended to lower the state’s overcrowded prison population.

The proposed measure, backed by a state lawmakers such as Assemblyman Jim Cooper, D-Elk Grove, and Sacramento County District Attorney Anne-Marie Schubert, could appear on next year’s November 2018 ballot. More information on this ballot initiative can be found here.

If approved by California voters, the proposed bill(s) would:

  • Add 15 new offenses to the list of violent crimes. This includes trafficking of a child, rape of an unconscious person, or assault of a police officer. Under this proposal, those convicted would no longer be eligible for early release from parole under Proposition 57, which passed in California last year.
  • Reinstate DNA collection for offenders convicted for seven drug or theft offenses. This is in reaction to the felony crimes that were reduced to misdemeanors under California’s Proposition 47, which was passed in 2014. Prop 47 had ensured that DNA samples were purged when someone’s crimes were reduced from felony to misdemeanor.
  • Create a felony for serial theft if someone is caught stealing three times for goods worth over $250. Proposition 47 had set the felony threshold for crimes like shoplifting for goods worth $950.
  • Require the state parole board to consider an inmates entire criminal history rather than its most recent offense.

Proponents of these new measures claim that the recent criminal justice policies have increased crime and emboldened repeat offenders that led to the increased crime rates in the state. It is reported that violent crime in California has increased by 13% in the past two years. However, it is debated whether this increase can be attributed to Proposition 47. Prop 47 was successful in dropping the recidivism rate to below 50%. Continue reading

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Like the Bill Cosby case that took the media by storm last year, Hollywood mogul Harvey Weinstein has also been accused by multiple women of rape and sexual misconduct. However, in the case of Weinstein, more than 75 women have publicly accused him of inappropriate behavior, including sexual harassment and rape. Many of Weinstein’s accusers are famous actresses such as Rose McGowan and Asia Argento, who have all said publicly that Weinstein forced them into unwanted sex. Weinstein has since then denied all allegations against him.

Currently, Police departments in London, New York, Los Angeles, and Beverly Hills, California, have said that they are investigating potential criminal charges in at least 10 different cases, some involving women who have not spoken publicly. So far, only the NYPD has stated that it has enough evidence to arrest Weinstein and press charges. This is because the agency has a police report filed by actress Paz de la Huerta in October to report that Weinstein raped her twice in 2010. Additionally, at the time of the alleged assaults, de la Huerta had told her her therapist, SueAnne Piliero, who recently supplied a letter to the actress about her recollections from those sessions. Lastly, de la Huerta had told a journalist named Alexis Faith, who recorded the conversation but never published the story. She too provided the tape. Because de la Huerta alleges a forceful rape which happened after June 2006, within New York’s statute of limitations for rape in the first degree, her case is among the most compelling for prosecutors.

What is next? Currently, a senior sex crimes prosecutor has been assigned to the case in New York. Investigators are likely to present de la Huerta’s allegations to grand jury before making an arrest.  The grand jury would then decide whether to indict Weinstein based on the standard of “reasonable cause” that he committed a crime. If an indictment is issued, prosecutors would then ask a judge to issue an arrest warrant.

Due to the allegations against him, Weinstein has been fired from the film production company he co-founded. He has hired to top defense lawyers to represent him in New York and Los Angeles.

California Statute of Limitations

Like New York, which eliminated its statute of limitations on rape charges back in 2006, California also amended its criminal code last year to eliminate the statute of limitations of rape and sexual assault charges. See S.B. 813.  Prior to that, the state had a 10-year window. Continue reading

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Prostitution has been illegal in California since 1872.  However, despite the over-a-century-long history, some sex workers claim that engaging in sexual activity for money is part of their right to earn a living. A sex workers’ advocacy group, the Service Providers Legal Education and Research Project, is seeking to decriminalize prostitution and has filed a constitutional challenge to the anti-prostitution law in California, saying it violates constitutional protections on free speech, freedom of association, and due process. The plaintiffs also include three unidentified former prostitutes and a disabled man who says he wants to be a respectful client of erotic services.

Citing the landmark 2003 ruling by the U.S. Supreme Court in Lawrence v. Texas, which struck down the sodomy law in the state of Texas, the plaintiffs in this case argue that sexual conduct among consenting adults is a “fundamental right.”

The 9th Circuit Court of Appeals in San Francisco has ruled that the legal challenge may proceed.

A change in the status of sex workers could have a big impact on California beyond escorts and prostitutes. Deterring human trafficking is one reason that state authorities have cited for keeping the law as is. Currently, prostitution is illegal in all 50 states with the exception of a few Nevada counties.

Current California Law on Prostitution:

California Penal Code § 647(b) explicitly prohibits:

  • Engaging in the act of prostitution, and
  • Offering or agreeing to engage in the act of prostitution.

The crime of prostitution or solicitation of it is a misdemeanor punishable by up to six months imprisonment and a $1000 fine. However, California law does not automatically require registration as a sex offender if you have been convicted of prostitution.

California Penal Code § 653.22 further makes it a crime punishable by six months imprisonment to loiter to commit prostitution (i.e. standing in a street corner).

Legal Defenses

Entrapment occurs when police behave in a way that applies pressure or defrauds you to engage in behavior you otherwise would not have. Entrapment defenses are sometimes used, since a number of prostitution/solicitation arrests are made by undercover cops. Many defendants are unfairly lured by saavy cops.

Other Related Crimes

California Penal Code § 266 covers the crimes of “pimping” and pandering, while California Penal Code § 647(a) covers lewd conduct in public. Lewd conduct occurs when  someone engages in a sexual act in public. Continue reading

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In the current political environment, it is no surprise that immigrants seem to be targeted more and more, and the border patrol is out in full force. Just a few months ago, a couple was detained by U.S. Border Patrol after a routine traffic stop. People usually think that Border Patrol can only be found in areas closest to the U.S.-Mexico border, but that is actually only a fraction of their enforcement efforts.   

What is Border Patrol Jurisdiction?

Border Patrol agents are sworn federal agents capable of enforcing the law in all 50 states and all U.S. territories. Generally, agents can operate within 100 miles from each international border.  This pretty much covers the entirety of San Diego County. Under certain conditions, they can also go beyond that distance. They are allowed to make arrests or question anyone potentially violating immigration law, but they do not issue things like speeding tickets. However, traffic violations such as a broken taillight or speeding can be used as a pretext to stop you to question you further.   

Where can Border Patrol Stop You?

Border Patrol agents are allowed to set up checkpoints even in areas not in the immediate vicinity of the border. They can stop drivers to question the occupants of a car, and even request proof of immigration status. They are also allowed to station themselves along highways and roads to be on the lookout for people violating potential immigration laws or committing crimes.

They are allowed to stop drivers under the “reasonable suspicion” standard. That is, Border Patrol has to have more than a hunch that a crime or immigration violation has been or will be committed. This is a lower standard than the “probable cause” standard, which means there is concrete evidence to indicate a crime has been/is being committed.

These standards get murky, since stopping drivers based solely on the color of their skin is considered racial profiling. However, border patrol is allowed to consider race or nationality while deciding to stop and question people, as long as agents can point to indications of criminal activity.

In this political environment, it is recommended you have the name and number of an immigrant rights lawyer ready in case you get stopped by law enforcement officials.    Continue reading

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A federal judge recently postponed the criminal trial for the six men allegedly involved in the Bundy-Bunkerville standoff, as the state of Nevada, including potential jurors and lawyers in the case, grapple with the horror of the Las Vegas shooting. The trial for Gold Butte rancher Cliven Bundy, two of his sons, and three other men was initially slated to start Tuesday, October 10th, but one defendant, Ryan Payne, had already asked the federal court to postpone the trial.

The bloody Las Vegas shooting left at least 59 dead and 400 injured. Assistant Federal Public Defender Brenda Weksler, counsel for Mr. Payne, had stated: “The shooter is a white male reported to be from Mesquite, Nevada — only a few miles away from the Bundy ranch and the site of the April 12, 2014, events in the wash by Highway I-15. Regardless of the facts, when and if they all come to light, many people have and will associate him with Cliven Bundy and his supporters, who have been previously described as ‘domestic terrorists’ by (former) Nevada Senator Harry Reid and others.”

Back in 2014, Cliven Bundy and his clan allegedly pointed assault rifles at Bureau of Land Management agents when they tried to round up Bundy’s cattle that was grazing on public lands without a permit.

Lawyers on both sides of the case agreed a trial delay would be necessary, even though Bundy and other defendants had wanted a speedy trial.

Delaying a Trial in California

While the U.S. Constitution’s Sixth Amendment guarantees a speedy trial, sometimes it is necessary or strategic to reschedule or delay a hearing or trial. In instances such as if external current events make it almost impossible for a jury to be unbiased, such as in the case of the Las Vegas shooting, both sides typically agree to a reschedule. Defense attorneys have to file something called a “Motion to Continue” which is a request by one or both parties in a legal dispute to the Court to extend or reschedule a hearing or trial date to a specified new date.  See CA Rules of Court 3.1332.

Other grounds for continuance in California include:

  • “The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances”;
  • “The unavailability of a party because of death, illness, or other excusable circumstances”;
  • “The unavailability of trial counsel because of death, illness, or other excusable circumstances”;

Other factors a judge considers is the length of the delay, how close the trial date is, etc. Continue reading

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More than 1,100 San Diego police officers are now outfitted with body cameras, and the San Diego County District Attorney’s office received more than 100,000 body-camera videos from police across the county since 2016. Body cameras were initially intended to be a transparency tool to reassure the public that their police force follows the rule of law. In other words, body-worn camera footage is now a staple of San Diego’s police force, yet members of the public have not been able to view it.

In fact, even after a trial is complete, it is nearly impossible for members of the public to access body camera footage. Police agencies claim that they withhold body camera videos from the public to preserve the accused’s right to a fair trial and to avoid tainting the jury pool.

Public Records Requests

Neither the San Diego Police Department nor the San Diego County district attorney’s office provides body camera footage through California’s open records laws. Instead, a requester has to go to the Superior Court where the trial is held, where copies of the video are kept in the evidence room. Even then, seeing the video requires a court order.

When the Evidence can be Viewed

Since police footage is next to impossible to obtain, there are only a few ways a defendant can see his or her own video.

  • If the prosecutor uses the body camera footage as evidence to try to obtain a conviction or compel a plea deal. The footage gets shared as part of the discovery process.
  • Prosecutors may share the tape during trial as part of the evidence.
  • If the District Attorney releases the video. The SDPD last year released a policy that provides a path for releasing videos of officer involved shootings in cases where no charges are being filed against the officer. This policy states that the district attorney has to by default release the video.
  • If you file a citizen complaint against the cop. The police may be willing to release it to prove their innocence.

Continue reading

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In another bizarre twist of events surrounding the Bundy family, Nevada cattle rancher Cliven Bundy just lost his courtroom bid to be able to represent himself (pro se) at his upcoming criminal trial. The extreme “state’s rights” advocate is scheduled to go to trial this fall for the armed standoff in Nevada with Bureau of Land Management (BLM) agents back in 2014.  Cliven Bundy and the other defendants currently face a retrial when they were acquitted by a jury for allegedly assaulting federal officer(s) and brandishing weapons. The defendants are accused of leading a conspiracy to prevent federal agents from removing Bundy cattle from illegally grazing on what is now Gold Butte National Monument.

In September, Mr. Bundy filed court documents saying he wanted his current defense attorney, Brett Whipple, removed from the case. Mr. Whipple had responded by saying he is bound by legal ethics to respect his client’s wishes. However, U.S. Magistrate Judge Peggy Leen ruled that Mr. Bundy could not fire his lawyer because Mr. Bundy would not recognize a court ruling that land could be owned by the federal government.

Jury selection is due to start October 10 in U.S. District Court for Bundy, his two sons, and four other men, including the two defendants whose retrial ended last month with acquittal on most charges.

Should You Represent Yourself in a Criminal Trial?

Self-representation is referred to as “pro se” representation. The 6th Amendment of the U.S. Constitution guarantees that all persons accused of criminal acts have the right to the assistance of counsel, which includes a public defender, if you cannot afford a lawyer. The U.S. Supreme Court has interpreted this to include the right of the accused to represent themselves at trial. See Faretta v. California, 422 U.S. 806 (1975).

Representing yourself in a criminal trial is a bad idea for several reasons:

  • Most people do not understand the formal procedures and rules of criminal court. Missing a deadline or a mistaken filing can doom your case.
  • You will not avail yourself all the available defenses. The law is a hard topic to master. Skilled criminal defense lawyers will know all the available defenses to you.
  • You do not know California specific law. California has some of the most comprehensive and long criminal law statutes in the nation. Judges will not go easier on you just because you are representing yourself; you have to plead all the right motions under all the specific state statutes in order to win your case.

Continue reading

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This week, a homeless San Diego man, Richard Stevenson, was sentenced to two years probation and ordered to stay away from where he had pitched a tent on a city street in downtown San Diego earlier this year. He was found guilty of two counts of illegal lodging and encroachment by a 12-person jury. It took a city attorney, police officer, public defender, activist, and a judge to get him a spot in the homeless shelter.

Richard Stevenson’s case highlights the enormous amounts of resources that go into tackling San Diego’s homelessness problem. Stevenson was arrested April 5, at 5:45 a.m, 15 minutes after the city policy allowing people to sleep in public ended. Due to the state’s housing crisis, homelessness is becoming a bigger and bigger problem, with the city criminalizing homelessness with statutes intended to address nuisances and trash, and other seemingly innocuous laws.

San Diego has been sued before for excessive enforcement of the state’s illegal lodging law and now faces another class action for ticketing and arresting people living on the street. According to a 2015 San Diego Police Department training bulletin on illegal lodging, officers are advised to only enforce illegal lodging in areas where they have received complaints.

It has been reported that most people who show up for their court dates plead guilty and are sentenced to probation. Stevenson decided to fight the charges and was represented by a public defender.    

Illegal Lodging

According to a study being released this week by the UC Berkeley School of Law Policy Advocacy Clinic, 58 California cities have enacted hundreds of new laws since 1990 that target or disproportionately affect homeless people.

CA Penal Code § 647(e) makes if a crime to lodge “in any building, structure, vehicle, or place, whether public or private, without the permission of the owner or person entitled to the possession or in control of it.” This can result for having a citation (ticket) issued to you for doing something like sleeping on a park bench or the street, or pitching a tent on public property.

Illegal lodging/camping tickets are misdemeanors that are punishable by six months imprisonment or a $1,000 fine.

Trespass

In some cases, homeless people can be arrested for trespassing, if they unknowingly enter private property (such as a park that may be privately owned by a foundation, or trust). See CA Penal Code § 602. However, if you did not “occupy” the property (i.e. you were just passing through briefly), you have not interfered with the property owner’s property and have a legal defense to the crime of trespass. Continue reading

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The San Diego Union Tribune reports that there has been a sharp spike in the use of police dogs in San Diego, and this has raised questions about how and when officers call on the dogs to quell dangerous situations. Police officials say canine units help de-escalate situations and prevent the elevated use of force, but some recent high-profile biting incidents have prompted complaints from community members, lawsuits for excessive force, and a large city settlement.

Specifically the number of suspects bitten per year has risen sharply from 15 in 2013 to 86 in 2016. The number of times officers deployed a canine increased from 1,778 to 3,222 over that time. This increase in usage of canines has occured despite an overall decrease in crime and drop in emergency responses by the Police Department. The police department claims that there has been a continued rise in the number of dog bite incidents involving suspects with mental illness and suspects who have been using drugs or alcohol.

Additionally, the number of canine units slowly increased from the initial 14 in 1984 up to 20 in 1990, and then has more than doubled to 44 units in 1991.

Last July, a YouTube video went viral of a man being bitten while handcuffed. It is predicted that a lawsuit will be likely. Last December, the city of San Diego paid out $385,000 after a dog bite left one man’s leg badly damaged.

Last year, Police Chief Shelley Zimmerman ordered a review of canine policies and training to include more role-playing activities and emotional intelligence components. However, there are currently no plans to shift away from having police physically remove dogs from suspects during a biting incident.

When are Police Dogs Considered Excessive Force?

There are still limits to the injuries police dogs may inflict in the course of their duties.  California has fairly strict liability laws for dog owners, but there is an exception for police dogs in certain circumstances. For example, dog bite statutes might still apply when a dog bites an innocent bystander or witness to a crime.

The use of a dog in the course of police activity can be unreasonable when the nature and quality of the intrusion is not justified. When it is unreasonable, it can result in a 4th Amendment or 8th Amendment violation, which gives rise to civil damages under 42 U.S.C. § 1983. Continue reading

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