Articles Tagged with California criminal defense attorney

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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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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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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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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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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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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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In a 6-5 opinion (United States v. Sanchez-Gomez), the 9th U.S. Circuit Court of Appeals just found the San Diego District Court’s 2013 shackling policy for pretrial defendants unconstitutional- “likening the court’s policy to treating inmates “like a bear on a chain.” While it is a significant ruling, the opinion is moot for the San Diego criminal court system because it no longer has the same restraint policy from 2013. The San Diego federal court had enacted the policy after the U.S. Marshals Service cited safety concerns due to understaffing and an uptick in violence. Federal Defenders of San Diego, a non-profit which provides public defense for defendants, sued over the policy on behalf of four people charged with crimes such as illegal re-entry, drug importation, and misuse of a passport.

U.S. District Chief Judge Barry T. Moskowitz decided to defer to the marshals on security, allowing the default policy to be the use of five-point restraints — leg and hand shackles connected by a belly band — during routine hearings. Now, overturning the lower court, the 9th Circuit ruling would only allow for shackling if it would serve a compelling purpose. The majority opinion found that “a blanket policy applied to all defendants infuses the courtroom with a prison atmosphere.” Rather, the higher court noted that each defendant must be assessed on a case-by case basis on whether they should be shackled on both the hands and feet. The judges noted that the “constitutional liberties” of defendants must be defended.

Your Constitutional Rights

It is widely accepted that pretrial detainees have the same rights as convicted prisoners.

You have the right to be treated with dignity and respect in a courtroom. While the U.S. constitution does not explicitly use these words, the 14th Amendment guarantee to due process denotes that even  defendants have the right to fairness, dignity, respect, and privacy within our criminal justice system. This concept of human dignity is one that has been refined by the courts in its interpretation of the constitution.  The Supreme Court in Deck v. Missouri held that the use of visible shackles during jury proceedings would prejudice the jury against the defendant. The recent 9th Circuit ruling clarified the scope of the right to dignity to pretrial proceedings.

Your are also presumed to be innocent until found guilty. See Taylor v. Kentucky, 436 U.S. 478, 98 S. Ct. 1930, 56 L. Ed. 2d 468 (1978). The 9th circuit clarifies that shackling before a defendant is even convicted or sentenced weakens that presumption. Continue reading

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According to California Supreme Court Chief Justice Tani Cantil-Sakauye, the over four million traffic tickets handed out to the state’s drivers each year should no longer be criminal charges. If other lawmakers agree with her, California drivers would spend less time in court and would no longer face fines of up to $300 and possible license suspensions for failing to show up for a hearing.

A panel called the Commission on the Future of California’s Court System has recommended this traffic ticket proposal in an attempt to improve Californian’s interactions with the judicial system. Ms. Cantil-Sakauye wants the Judicial Council to study and report on the proposals by September in the Fall.

The traffic proposals are the latest response to the slew of driver suspensions brought on indirectly by the court system’s financial deficits. California courts have been padding their budgets by adding surcharges to traffic tickets — $490 to the standard $100 fine for a minor violation. When drivers miss payment deadlines, they face additional penalties and license suspensions. A statewide report in 2015 found that 4.2 million Californians had their licenses suspended between 2006 and 2013 for failing to pay traffic fines and penalties. Poor people were hit the hardest.

Under this proposal, traffic infractions would be moved to the civil court system. If a driver fails to show up in court, the judge can decide whether the law had been violated, but he or she could no longer impose a fine of up to $300 for nonappearance or suspend the driver’s license.  However, the proposal would not eliminate license suspensions for failing to pay fines and penalties for the original offense. The proposal would need to be approved by the state legislature and the governor.

State senator Robert Hertzberg (D-Van Nuys) has a new bill, SB185, that would prevent the state from automatically suspending licenses of drivers unable to pay fines for minor traffic tickets and would require courts to base fines on drivers’ ability to pay

Legal Implications

By switching out of the criminal law system into a civil one, it is now easier for the state to prove a violation. For criminal cases, prosecutors have to prove guilt “beyond a reasonable doubt.”  The switch to a civil system means prosecutors only need to prove guilt by a “preponderance of evidence,” meaning that over 50% of the evidence points to the defendant’s guilt. Continue reading

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In a tragic turn of events, seven adults were shot at a University City apartment complex pool party earlier this month. One woman named Monique Clark was killed. Witnesses say that  49-year-old Peter Selis, a resident at the upscale La Jolla Crossroads complex, never even left his pool chair when he opened fire on a birthday party.  The question left in everyone’s mind is whether Selis was motivated by race, something that the witnesses and survivors of the shooting believe to be true. All the victims of the mass shooting were people of color – four black women, two black men, and one Latino man.  

The three police offers who arrived at the scene shot and killed Mr. Selis. The preliminary investigation revealed that Mr. Selis is a car mechanic at a Ford dealership, and a 2015 bankruptcy filing illustrated that he was under crushing debt.

Hate Crimes

According to the FBI, a hate crime is a “criminal offense against a person or property motivated in whole or in part by an offender’s bias against a race, religion, disability, sexual orientation, ethnicity, gender, or gender identity.”

Hate crimes are the only criminal case in which prosecutors are required to prove a perpetrator’s motive at trial. Typically, the defendant’s mens rea, or criminal intent, is all that is needed to prove guilt. This means that the perpetrator’s state of mind must be an element of the crime; he or she must have taken action intentionally to pursue a criminal result. For example, if a gunman opens fire on a crowd, prosecutors must prove that he intended to pull the trigger (the action) and shoot people to harm them (the criminal result). With hate crimes, prosecution must prove that the perpetrator had the mens rea  to shoot people, but that he or she was also motivated by the victim’s race, gender, or religion.

As a result, hate crimes are extremely difficult to prove even if the crime of shooting is considered by some to be a ‘slam dunk’ case. The mere difference between the race of the offender and the victim in and of itself, absent of any other objective bias indicators, is unlikely to result in a conviction. Usually there must be more evidence to examine the surrounding circumstances. This may include statements the suspect made prior to the crime, which do not exist in the case of Mr. Selis.

A total of 84 “hate crime events” were reported in 2016 in San Diego. Continue reading

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