Articles Posted in Criminal Defense

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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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This past summer, the California Supreme Court ruled in San Francisco that a menacing nonverbal gesture does not qualify as a criminal threat under state law. The court issued its ruling in the case of a Riverside County man, Mario Gonzalez, who was accused of making threats with hand gestures toward an off-duty police officer while he was sitting at a restaurant patio with four friends, back in 2013.

Gonzalez was accused of making a “JT” hand sign, which was a symbol of a California gang known as “Jackson Terrace,” and then used his hands to simulate a gun, which he pointed at the cop and his friends. The officer claims the gesture frightened him, and Gonzalez was charged by the district attorney with five counts of making a criminal threat.

CA Penal Code § 422 – 422.4 is the state statute that governs criminal threats. It was last amended by the Legislature in 1998 to include electronic threats. California law makes it a crime to “threaten death or serious bodily injury with a statement “made verbally, in writing or by means of an electronic communication device.”

Justice Carol Corrigan wrote in the court’s ruling that the phrase “made verbally” refers to actual words, written or spoken, and not to gestures. “Nothing in logic or reason allows us to interpret “made verbally” to include nonverbal conduct,” she wrote. This is not the first time that Penal Code § 422 has been found to be lacking clarity. The court noted it would be up to the state’s legislature to include symbolic nonverbal gestures to make menacing hand gestures a crime.  ee  People v. Gonzalez, No. S223763, 2017 WL 2376597, at *1 (Cal. June 1, 2017) quoting People v. Scott (2014) 58 Cal.4th 1415, 1421.

As a result, the criminal threat charges were dismissed.

The Current Standard for “Threats”

Criminal threats can be either a gross misdemeanor or felony in California, depending on the circumstances and severity. Prosecutors have the discretion to decide. The standard test is that they must prove the person you ‘threatened’ had a reasonable fear for his or her safety under the circumstances.   

This means, for example, if a person responds by saying “I’m not scared of you,” that would be helpful for your defense. Continue reading

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Earlier this year, a federal jury in Las Vegas refused to convict defendants from the Bundy clan for their alleged roles in armed standoffs. In another stunning setback to federal prosecutors, the jury acquitted Cliven Bundy, Ricky Lovelien, and Steven Stewart of all 10 charges, and delivered not-guilty findings on most charges against Scott Drexler and Eric Parker. Back in 2014, Cliven Bundy made national headlines after his family engaged in an armed standoff with federal agents when they tried to take his cattle that were illegally grazing on public lands. Some of the charges the defendants faced included threatening federal officers and brandishing a firearm against them.

Prosecutors began retrial in July after their first attempt to prosecute resulted in a failure to reach a jury verdict against Drexler, Parker, Lovelien, and Stewart. The judge then ordered Lovelien and Stewart to be freed immediately and declared a mistrial for Drexler. Only defendants Gregory Burleson of Phoenix, Arizona, and Todd Engel of Idaho were found guilty on some charges. The initial prosecution concentrated on six of the least culpable of the 19 defendants charged in the case. 17 co-defendants still remain in federal custody with the release of Lovelien and Stewart.

Back in November of 2016, a Portland district court jury also acquitted Ryan Bundy and five of his alleged co-conspirators of his federal charges of theft and impeding federal workers from their jobs on an Oregon wildlife refuge.

The U.S. Attorney’s Office in Las Vegas confirmed that it will push for retrial for a third time in an attempt to convict Drexler and Parker, who are accused of taking up arms against federal agents. This pushes back the other criminal trials for the 11 defendants who are currently awaiting their court dates.

Jury Acquittal and Jury Nullification

Jury acquittal, also known as jury nullification, occurs when a jury renders a unanimous “not guilty” verdict. It is based on the legal concept that jury members vote “not guilty” if they do not support the government’s law, or do not believe it is constitutional or humane.

Acquittal is different from a hung jury, also known as a mistrial, which occurs when jurors simply can not reach a unanimous verdict to reach a guilty or not guilty conviction.

Typically in criminal trials, a unanimous jury is required if the jury is comprised of six people.  However, California is different from most states in that all jurors have to agree in a criminal trial, even if it is a 12-person jury. Continue reading

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In a 4-3 decision by the California Supreme Court, it has been held that California judges have broad authority to refuse to shorten the sentences of “three strike” inmates, despite the revisions to the “Three Strikes Law” with Proposition 36. Proposition 36 was first passed in 2012 to allow three-strike offenders to receive sentence reductions if their third offense was neither serious nor violent. The law provided an exception for judges if they believed an inmate to be an “unreasonable risk of danger to public safety.”

However, two years later, Proposition 47 which was passed in 2014, reduced the penalties for a number of drug and property crimes from felonies to misdemeanors. Under that law, inmates can be denied a sentence reduction only if they posed an unreasonable risk of crimes including murder, a sexually violent offense, child molestation, or other crimes punishable by life imprisonment or the death penalty.

Court Opinion

In the case at hand, The People v. Valencia; The People v. Paul Chaney, led by Chief Justice Tani Cantil-Sakauye, ruled that the definition of ‘safety risk’ does not apply to three-strikers who have been sentenced to 25 years to life for repeated crimes. In other words, it has become harder for three-strikers to get sentence reductions. It would “result in the release of more recidivist serious and/or violent offenders than had been originally contemplated under Proposition 36,” the opinion says. The Chief Justice also noted in her opinion that Prop. 47 would not affect three-strike prisoners nor amend the resentencing criteria governing the Three Strikes Reform Act, since it only lowered nonviolent felonies to misdemeanors.

This ruling comes as a result of the criminal appeals filed by inmates David J. Valencia and Clifford Paul Chaney, who were both sentenced to 25 years to life under the three-strikes law and both eligible for reduced terms. Valencia’s criminal history included kidnapping, making criminal threats, and beating his wife. Chaney’s record included armed robbery and three convictions for driving under the influence. In Valencia’s case, a judge refused to reduce Valencia’s sentence, calling him a threat to public safety, in particular, to women. Another judge denied Chaney’s resentencing application, concluding he was likely to drive again while intoxicated. Both inmates had argued that the previous judges should have based their decisions on the narrowed definition of ‘safety risk’ after Propositions 36 and 47 have passed. Continue reading

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It has been reported throughout the years that minor drug offenders or registered marijuana businesses were being targeted by police, but now, it seems that marijuana attorneys who represent those in the marijuana businesses are now coming under fire from law enforcement.  Last month, attorney Jessica McElfresh, an experienced attorney in cannabis law, had her hearing in San Diego district court. She is facing multiple felony charges for allegedly hiding hash oil from city inspectors on behalf of her client, James Slatic.

Back in May, D.A. Bonnie Dumanis filed a slew of criminal charges, alleging that Slatic and his business partners were illegally manufacturing and selling hash oil across the country.  Specifically, McElfresh is accused of hiding the evidence from city inspectors during an April 2015 inspection of her client’s facilities in Kearny Mesa.

However, what most attorneys are concerned about is arguably the most sacred right in the legal profession – attorney-client privilege. Prosecutors want access to all of her records, not just the ones pertaining to the charges McElfresh is fighting. There is a particular email in question that prosecutors are using to accuses McElfresh of conspiring with her client. However, McElfresh has counseled hundreds of clients, and now those records are in front of prosecutors.

The Ethics of Marijuana Law

It has long been debated whether an attorney can take on a client in the medical cannabis business. While recreational marijuana will soon be legalized in California, it is still a Schedule I drug under the federal Substances Control Act punishable by jail time. A June 2015 ethics opinion from the Bar Association of San Francisco (Opinion 2015-1) has concluded that representation of such businesses is legal if the lawyer advises clients to adhere to state regs and discourages illegal conduct. For example, aiding a client through a business permitting process is lawful representation that does not breach ethics rules.

Attorney Client Privilege

Every state bar has a rule that protects attorney-client privilege. In California, ABA Rule 3-100 specifies that conversations and information given by a client as it pertains to professional legal advice are protected as “confidential” and inadmissible in court. However, that same rule also specifies that a lawyer’s communications with a client are fair game if they were made with the intent of committing or covering up a crime. In the scenario above, the judge claims that McElfresh’s communication(s) fall under this narrow exception. Continue reading

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A video that has made its way through social media of a San Diego police canine biting an unarmed man in handcuffs has caused outrage. The footage, posted by Facebook user Angel Nuñez, shows the dog latched on to the man’s arm for at least 30 seconds while one officer works to unlatch the animal’s jaw. However, two additional cops were holding the man who was being bitten. The victim could be seen screaming as he was being bitten.

The man was eventually arrested on suspicion of charges that include robbery, battery, and being under the influence of drugs. San Diego police claim that the use of the dog adhered to the department’s policy.

When Does a Dog Bite in California Reach Criminal Status?

California has strict dog bite laws that have huge consequences and liability for the owners of dogs that bite. By statute, the state is a strict liability state, meaning the owner of a dog strictly is liable for any dog bite from the moment that ownership begins—with some narrow exceptions, such as when the dog is provoked. See CA Civ. Code § 3342. This means that the owner of a “dangerous dog” can be sued for civil damages from the dog bite victim.

However, what most people do not know is that criminal charges can be filed as a consequence of a dog biting someone, in addition to a civil lawsuit. Specifically, California dog bites may fall under the category of criminal if the dog falls under the state’s legal definition of “dangerous” or “vicious.” California law defines a “dangerous” dog as one that has bitten someone without being provoked, killed or injured another animal at least twice within a three year period, or has acted aggressively towards a person (causing that person to defend him or herself) at least twice within a three-year period. Dogs that are owned by someone with a conviction of a dog-fighting charge may also be considered vicious.

Dangerous dogs that were not reasonably restrained that kill someone may cause their owners to face felony criminal charges. You may face a misdemeanor criminal offense if your dog was not reasonably restrained and it injured someone.

In sum, police can still charge you with criminal charges if your dog bites, injures, or kills someone. These criminal charges range from criminal negligence to second degree murder. Under state, county, and city laws, dog owners can still go to jail for having a dog that bites someone. Continue reading

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California corrections officials on Friday began accepting public comments on the new set of proposed regulations that have overhauled the state parole system. See Proposition 57, the Public Safety and Rehabilitation Act of 2016. State regulators gave the guidelines initial approval in April. They have been used to implement Proposition 57.

Last November, California voters overwhelmingly passed Proposition 57 (64% to 35%) which would emphasize rehabilitation and incentivizing inmates to play a role in their own rehabilitation through credit-earning opportunities for sustained good behavior. Proposition 57 also allows the state Board of Parole Hearings to grant early release to those convicted of nonviolent crimes, and allows the moves up parole consideration of nonviolent offenders who have served the full-term of the sentence for their primary offense and are not determined to pose a risk to their community.

The California Department of Corrections and Rehabilitation (CDCR) issued a Public Notice on July 14, 2017 which begins the public comment period for a minimum of 45 days. This would allow the public to submit comments regarding Prop. 57 through mail, fax, and email. Changes to the credit system began in May and the new parole eligibility requirements took effect this month. Final approval is expected in the fall.

However, the rules have come under fire from law enforcement and prosecutors who have largely opposed Proposition 57. Specifically, they are concerned that Proposition 57 did not include language exempting sex offenders from the process.

Parole Conditions

Regardless of who is eligible to be released and when, all inmates released from a California State prison are subject to conditions of parole that must be followed. Some parolees also have special conditions of parole which must also be followed.

General conditions that apply to all parolees include:

  • You and your residence and your possessions can be searched at any time of the day or night, with or without a warrant, and with or without a reason, by any parole agent or police officer. See CA Penal Code § 3067.
  • You must report to your parole agent within one day of your release from prison or jail.
  • You must always update your parole agent with updates to your address and phone number.
  • You must notify your parole agent within three days if the location of any job changes.
  • You must get permission from parole agent for permission to travel more than 50 miles from your residence.

Continue reading

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A graduate student at Cal State San Marcos accused of rape has filed a federal lawsuit, alleging the university violated his rights to due process through an unfair investigation. The student, who is not identified by name in the suit, was attending a study abroad program in Germany in 2016.  Last October, he learned that a fellow student in the program had accused him of rape. However, no criminal charges were ever filed even though the university launched its own investigation.

His degree and transcripts were placed on hold once the investigation started. Allegedly, the school did not provide him with the report or his accuser’s statements or other documents. He was found guilty by the university of sexual misconduct in March. The lawsuit now argues that by withholding his academic credentials, without giving him the chance to defend himself, the university breached his constitutional rights to due process under the fifth and fourteenth amendments. In other words, he is alleging that his procedural due process has been violated because the school’s ‘procedure’ denied him access to anything regarding the accusations against him.

Officials for Cal State San Marcos pointed to the university’s policies under Title IX, which forbid discrimination in education. This means the school must create and sustain an educational environment free of sexual violence and misconduct.

This is not the first time that universities in California have come under controversy for their handling of sexual assault allegations. Back in 2015, a California court ruled that the University of California, San Diego (UCSD) acted improperly while adjudicating a sexual assault case, noting that the student was not allowed to findings of the university or cross-examine his accuser. Also in 2015, San Diego State University reversed the suspension of a male student after finding allegations of sexual misconduct against him were unsubstantiated, and he sued the school.

Due Process in Schools

Students facing possible suspension or expulsion from public colleges and universities are entitled to due process protections because their liberty and property are at stake, and because public schools take money from the state, making them state (government) actors, to an extent, in a disciplinary proceeding. This means at an absolute minimum, students in campus disciplinary cases are entitled to have notice of the charges against them, an explanation of the evidence against them, and an opportunity to defend themselves in the process, such as hearings.  See Goss v. Lopez, U.S. Supreme Court (1975).

When a school denies you your right to due process, this can be used as a defense to a suspension or expulsion decision. Continue reading

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Months after the criminal trial of the nine defendants involved in the Oregon Wildlife refuge standoff were acquitted, it has been reported that F.B.I. agent W. Joseph Astarita, 40, has been indicted on five counts regarding the lethal shooting of Lavoy Finicum. The agent is now being accused of lying about firing two shots at Finicum. He is being charged with two counts of obstruction of justice and three counts of making a false statement. Astarita has pleaded “not guilty” on all charges and will remain out of custody pending trial.

Astarita is accused of firing twice at Finicum but missing him. The indictment says Astarita, who served as a member of the elite FBI Hostage Rescue Team, “falsely stated he had not fired his weapon during the attempted arrest of Robert LaVoy Finicum, when he knew then and there that he had fired his weapon.” He is accused of lying to three supervisors in the F.B.I. for not alerting the Oregon investigators or the FBI’s Shooting Incident Response Team that he fired his weapon.

It was state troopers, and not the F.B.I. that fired the three lethal shots that killed Finicum.

This criminal indictment stems from an 18-month-long investigation by the inspector general of the U.S. Department of Justice.  However, the Oregon Attorney general stated that this indictment still does not change the findings that Oregon State Police were justified in using deadly force against Finicum.

What is Obstruction of Justice?

Obstruction of justice can be generally defined as interference with the administration of criminal investigation. It can consist of bribery, murder, intimidation, lying—anything to hinder the criminal investigation process. The crime is covered by different federal and state statutes.

In 2016, a study conducted by researchers at Bowling Green State University and funded by the National Institute of Justice found that police officers are getting arrested around 1,000 times per year. larmingly, 41% of the total crimes were committed while on duty, concluding that police, breaking the laws they are supposed to be upholding, is not that uncommon.

CA Obstruction of Justice

Section 148 of the California Penal Code makes it a crime to willfully “resist, delay or obstruct” a cop or first responder in the performance of on-the-job duties, which includes lying to an officer in an investigation, providing misleading information, destroying evidence, etc.  If convicted you face a $1,000 fine and a year imprisonment.

One of the most important questions that could come up in an obstruction of justice charge is whether the police violated your Constitutional right against unreasonable search and seizure. Continue reading

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