Articles Posted in Criminal Defense

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While Prop. 47 has been in the headlines with all the reforms in California criminal law, Governor Jerry Brown has quietly signed yet another group of criminal reform laws effective in 2017.

Last week, Brown signed into law:

  • S.B. 1134: sponsored by Sens. Mark Leno (D-San Francisco) and Joel Anderson (R-San Diego), would allow prisoners to challenge their convictions with new evidence that would have likely have changed the outcome of their trials, easing the current standard of proof that requires near-certain proof of innocence.
  • A.B. 813: sponsored by Assemblywoman Lorena Gonzalez (D-San Diego), would allow immigrants facing deportation for criminal convictions to offer newly discovered evidence that they were wrongfully convicted. Those eligible are those who have served his or her sentence.
  • S.B. 1139: sponsored by Sens. Steve Glazer (D-Orinda) and Ed Hernandez (D-West Covina) will require police to record all interrogations of murder suspects. These recordings can be used by jurors can to decide whether confessions were voluntary or coerced. The bill has been supported by the California Police Chiefs Association, and effectively expands the current law that applies to juvenile murder suspects.
  • AB 1909: sponsored by Assemblywoman Patty Lopez, will make it a felony for prosecutors to falsify or withhold evidence. The crime would be punishable by up to three years in prison, depending of the severity of the crime. Falsifying or withholding evidence was previously a misdemeanor for the general public and a felony for law enforcement officers in the state. The law is a response to the jailhouse informant scandal that continues to plague Orange County, California, where Assistant Public Defender Scott Sanders has accused county prosecutors and police of violating defendants’ rights for years through illegally obtaining and withholding, evidence taken from jail informants.

The changes do not end there. This November, California voters will actually consider a repeal of California’s death penalty. A similar one was proposed in 2012 and narrowly defeated. Voters will also consider another ballot initiative backed by Governor Brown that would overhaul state sentencing laws and allow thousands of prisoners to apply for early parole. Continue reading

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This September, the notoriously liberal state of California just made it harder for cops to take cash from innocent people. Governor Jerry Brown just signed into law SB 443, which limits the amount of civil forfeiture that is allowed to take place in the state by police and law enforcement agencies.

Civil asset forfeiture occurs when the government (ie. police) literally seizes someone’s property, without compensating them, based on the suspicion that the property was used in connection with criminal activity. For example, you can be stopped during a routine traffic stop, and police who suspect you of drug dealing may take cash that was in your car based on that premise. They do not need a warrant or criminal conviction in order to do so.

It is well known that corrupt police agencies throughout California have been using civil asset forfeiture as an excuse to pad their budgets. An investigation by the Washington Post identified almost $10,000 in cash seizures that took place without any warrants or indictments.

The Lay of the Land

Compared to other states, California  was already more protective than others.  The state already required a criminal conviction before real estate, vehicles, boats and cash under  the value of $25,000 could be forfeited over to the government.  The standard of proof in the civil forfeiture proceeding has always been “beyond a reasonable doubt,” meaning the state had to establish clear and convincing evidence that the property was connected to illegal activity.

However, California’s state requirements are different from those under federal law.  Under a federal forfeiture, state, local, and federal law enforcement agencies may collaborate (called “equitable sharing”) and forfeit seized property under federal law, even if that would preempt California’s more stringent protections for property owners. This means that traditionally, federal agency such as ICE or the DEA just has to get involved in order for the forfeiture to become federal. Once state departments transfer the seized assets to a federal agencies, they get back 80% of those proceeds.

SB 443 changed that. Starting in 2017, police will first need to obtain any criminal conviction before they could receive equitable-sharing payments from forfeited real estate, vehicles, boats, and cash worth under $40,000. This is intended to prohibit police departments from sidestepping the state conviction requirements by transferring the money to federal agencies. In addition, the law also increased the threshold for forfeiting  cash with criminal conviction to $40,000. Continue reading

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According to an Associated Press investigation, police officers across the country misuse confidential law enforcement databases to get information on romantic partners, business associates, neighbors, journalists, and others for reasons that have nothing to do with their police work. Through multiple public records requests to state agencies and major-city police departments, AP found that officers were fired, suspended, or resigned over 325 times between 2013 and 2015 for misuse of confidential databases for personal gain. Unspecified discipline was also imposed in over 90 instances.

It was reported last year that in California, specifically, there is also rampant misuse and lack of oversight in the state’s Law Enforcement Telecommunications System (CLETS) network.  Confirmed cases of misuse in the state’s unified law enforcement information network have doubled over the last five years, according to public records requests obtained by the Electronic Frontier Foundation pursuant to the California Public Records Act. There are 389 cases between 2010 and 2014 in which an investigation concluded an officer broke the rules for accessing CLETS. And these figures only represent what was self-reported by the government agencies to the California Attorney General, so they are likely underestimated.

No single agency tracks how often the abuse happens nationwide, and record-keeping inconsistencies make it impossible to know how many violations occur.

These Actions Can Lead to Criminal Charges

In 2010, an officer had been sending his ex-wife abusive text messages and using CLETS to obtain information on her new boyfriends. He ultimately pled no contest to a misdemeanor harassment charge, but the charges for violating CLETS were dropped. It is against police department policy and state law to access CLETS for personal reasons. Currently, the CLETS Advisory Committee (CAC) has sole jurisdiction to investigate misuse investigations.

Other Penalties: Violations of State Ethics and Corruption Laws

All too often, misuse of confidential databases and information is connected to other behavior that can lead to criminal charges for corruption. For example, if one obtains confidential information about another state employee, juror, arbitrator, judge, or investigator for the purposes of bribing them, that is a felony that can be punishable by two to four years.     Continue reading

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In the latest fatal civilian shooting to make national headlines, Charlotte, North Carolina police have shot a man named Keith Scott. Scott, like many victims of police shootings, was a black man whom his family claims was unarmed and not a threat. While protesters have filled the streets in the last few weeks, a new North Carolina law took effect on October 1 that will make it much harder for the public to see the footage of what happened to Keith Scott.  

The law passed by the state’s Republican-controlled Legislature runs counter to a nationwide trend in which some cities are actually trying to push transparency to earn back the public’s trust.  It would make any video footage by body cam and dashboard cam not a matter of public record. This would mean that only a judge can release it, and the footage would be exempt from public information act requests.

Calls for the release of the video have become the crux of the protests that ensued after the news of Scott’s death broke. The Charlotte police department refused to release the video to the public.  As of September 24, Keith Scott’s family released the first and only publicly available video which was recorded by cell phone by Scott’s wife.

All Police Body Camera Bills Have Failed in California This Year

For the second straight year, California’s legislature has failed to pass any major legislation regulating police body cams. Multiple bills, both to boost transparency and restrict access, have failed to garner support from lawmakers.

Police departments may adopt their own voluntary policies on police cams. The LAPD became the largest agency in the country to adopt body cameras with an announcement earlier this year, after four years of study and a pilot funded by donations. All 7,000 LAPD officers will wear body cams by the end of 2016, at the cost of $1.5 million.

Police Cam Footage Exempt

Standards for the release and storage of footage vary across departments across the country. As criminal evidence, police body cam footage is also currently exempt from California’s state law concerning public records. Currently, three Northern California counties have adopted guidelines for how long the video footage should be kept, but individual departments are not obligated to follow them. Attorneys who represent law enforcement recommend that departments keep their footage for two years.

In San Diego Specifically, public release of footage is prohibited unless approved by a Police chief or designee. Continue reading

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A new proposed bill in the state of California, A.B. 2466 now sits on Governor Jerry Brown’s desk for his approval. The bill would redefine who is entitled to register to vote, with the intent of restoring voting rights for the many ex-offenders within the state.

Today, racial minorities remain disproportionately excluded from voting as a result of the documented bias in drug law enforcement and sentencing. The “war on drugs” and subsequent decades of mass incarceration have blocked millions of people out of the electoral process. In California prisons, three out of every four men are either African American, Latino, or Asian American. African Americans, who comprise less than 7% of California’s voting-age population, currently represent 28% of those who cannot vote because of felon disenfranchisement.

Voting rights in the rest of the country depends on the state law. For example, two states, Maine and Vermont, allows felons to vote while behind bars. Fourteen states restore voting rights after a prisoner has been released from prison.

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Now that Ammon Bundy, his brother, and the other co-defendants (nicknamed, the “Bundys“) involved in the destruction and occupation of the Malheur National Wildlife Refuge have been set for trial, a jury must now decide whether the defendant’s actions and intent amounted to a crime. Several defendants have already pleaded not guilty to the federal charge of conspiring to impede U.S. Bureau of Land Management and U.S. Fish and Wildlife Service agents from doing their job at the refuge through intimidation, threats, or force. Five of the seven are also charged with possession of firearms in a federal facility. Another two face an additional count of government property theft.

Legal experts have been closely watching this case because prosecutors must put to rest the crazy constitutional arguments the defendants have come up with. The trial in Portland’s downtown federal courthouse is expected to last more than two months. In order to convict the Bundy’s prosecutors must prove that two or more defendants conspired to keep federal employees from carrying out their work at the refuge by threat and intimidation charge, a federal intimidation charge. District Judge Anna Brown has already told potential jurors that the case is “all about mental state.” This means they can only be found guilty if prosecutors prove defendant’s criminal intentions. It is reported prosecutors will use defendant’s statements on social media, videos, and news conferences as evidence.

Mens Rea and Actus Reas: The Two Elements of a Crime

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In the ongoing saga of rape allegations against comedian Bill Cosby, California has become one of two states that has proposed a law that would extend the statute of limitations in the prosecution of rape cases. The proposed bill, which passed both houses of the Legislature, follows a new law in Nevada that increases the legal deadline for rape prosecution from four to 20 years. In California, the statute of limitations to prosecute a rape case is currently 10 years.  Almost three dozen states, including the District of Columbia, have statute of limitations on filing sexual assault charges or lawsuits.

The state’s governor, Jerry Brown, who has had a history of vetoing bills extending legal deadlines for filing lawsuits over child sex abuse, must approve or sign into law the bill by the end of the month.

This bill however, is not the only one Governor Jerry Brown must decide to veto or approve.  The California legislature, in response to the outrage over the six-month jail sentence for Stanford University swimmer Brock Turner also passed a bill that would mandate a minimum three-year sentence for those convicted of rape or sexual assault. The proposed bill would eliminate a judge’s discretion to sentence defendants convicted of such crimes to probation.  Brock Turner was released from jail earlier this month for ‘good behavior,’ after serving three months (half) of his sentence. Had this proposed law been in place, he would still be in jail.

What are Statutes of Limitations?

Every state has something called a statute of limitations, which is generally defined as the time limit for a criminal or civil action.  In other words, once a statute of limitations has passed, one may no longer be prosecuted or sued for his or her crimes. A statute of limitations typically begins to run from the date the injury or crime was discovered.

In California, the state’s code has specific time limits for specific crimes, such as fraud, injury to personal property, and malpractice. The current California statute of limitations on prosecuting felony rape and sexual assault cases is 10 years after the crime occurs, or for incidents involving minors, until they reach the age of 26. Continue reading

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An animal rights activist by the name of Anita Krajnc, 48, is being tried in Canada for criminal mischief because she gave water to thirsty pigs at a traffic stop.   

Back in November 2015, Krajnc was charged with criminal mischief after clashing with the driver of a tractor-trailer transporting pigs to the slaughterhouse. She and her fellow protestors tried to give the thirsty pigs water as they were stopped at a traffic light on the way to the Fearmans Pork processing plant. The Ontario based hog farmer, Eric Van Boekel, who owned the pigs, filed a police complaint the next day. He claimed he was concerned for the safety of his product the animal rights protesters, who sometimes crowd near the large transport vehicles when they are stopped in traffic. Krajnc is the founder of an animal rights group called Toronto Pig Save. The video that went viral online shows her approaching the driver first to ask him to give the pigs water, since it was such a hot day.

Several online petitions numbering in the hundreds of thousands of signatures have already sprung up in Krajnc’s defense. Krajnc faces a maximum of six months in jail or a $5,000 fine if convicted, and she has pleaded not guilty.

Difference Between Criminal Mischief and Disorderly Conduct

Under California law, CA Penal Code § 594(a), criminal mischief, or malicious mischief, refers to the act of intentionally damaging, graffiti-ing or defacing property. You will be charged with criminal mischief/malicious mischief if you intentionally deface or destroy another person’s property without his or her permission. It does not involve taking another’s property, which is considered theft. A key element of the crime is intentional behavior, and not accidental behavior.

The majority of malicious mischief cases are prosecuted as misdemeanors punishable by a fine up to $10,000 and one year in jail if the amount of property damage is under $10,000. If property damage is under $400, the crime is punishable by up to $5,000 in fines.   

Disorderly conduct in almost every jurisdiction, is like a catch-all charge for those crimes that do not have a specific statute covering it. While disorderly conduct laws significantly differ amongst states, the crime is mainly known as “disturbing the peace.” This encompasses any behavior that causes other people alarm, anger, annoyance, or causes them to engage in unlawful activity.  California categorizes disorderly conduct offenses into five categories:

  • General disorderly conduct which includes public intoxication,
  • Fighting, noise, and offensive words,
  • Rioting,
  • Disturbing the peace on a school campus, and
  • Refusing to disburse such as during a protest.

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Last month, it was reported by CNN that the unsympathetic Dylann Roof, the accused shooter in Charleston, was attacked and beaten on his way to the shower in Charleston County Detention Center. Roof made headlines last year when he was arrested for his racially motivated massacre of nine black churchgoers at Charleston’s Emanuel AME Church in North Carolina.

Although he is currently in protective custody, Roof, 22, was vulnerable because only one guard was in the area and he was fetching toilet tissue for another inmate. That allowed another inmate, 25-year-old Dwayne Stafford, to run down the stairs from his cell into the protective custody unit and sucker punch Roof. It is reported the detention officer quickly responded and separated the two. There were no weapons involved, and the injuries Roof faced were minor – bruising on the face and back.

It is not surprising that the nature of his crimes make Roof vulnerable to attacks, and that is why he is under protective custody in the prison where he awaits trial. His murder trial is set to start at the end of January, and there are already three federal courtrooms dedicated to it. Roof currently faces nine counts of murder, three counts of attempted murder, and gun charges.

What is Protective Custody?

Protective custody in prison is a type of imprisonment intended to protect an inmate from harm, either from outside sources or other prisoners. Inmates have the right to request protective custody if they believe that the environment they are living in is harmful to their well-being. They can make this request at any time if they feel their physical safety threatened. Corrections officers then keep the inmate making the request locked up and unable to leave until the request is granted. The request may be granted if officials decide that the inmate is truly at risk. Once ‘protected,’ an inmate is typically segregated from the rest of the prison population.

Ideally, inmates under protective custody are housed in a stand-alone unit, with their own eating facilities, shower areas, recreation yards, and visiting rooms. Doctors and staffers visit the unit so the prisoner does not have to travel. Protective custody units have numerous cameras and guards, and can have anywhere from 10 to 100 inmates. Continue reading

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In the nearby state of Washington, a 32 year old white supremacist named David Rowe was apparently enraged at the at the sight of a black man and a white woman kissing at a bar in Olympia. Police say Mr. Rowe was recently released from the Washington State Penitentiary in Walla Walla, about 300 miles away. He was convicted in 208 for second-degree robbery. It is reported that he may be amongst the state’s homeless, who flock to Olympia for help on their way to Portland or Seattle.

Police report that he had been watching the couple, and walked up to them and without warning, yelled a racial slur and lunged at them with his knife. According to a press release from the Olympia police department, the knife went into the man’s hip, and grazed the woman. The male victim, 47, ended up chasing Rowe and knocking him unconscious on the ground when he tried to run away. After being arrested he was reported to rant about Donald Trump rallies.

Rowe was arrested and booked into the Thurston County Jail on two charges of first-degree assault and possible malicious harassment, which is the charge for hate crime in Washington state. The FBI reported 5,479 hate crimes across the United States in 2014, a 14.6% decrease from 2013.

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