Articles Tagged with California criminal defense attorney

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

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

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

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

Claims Against San Diego County

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

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

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

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

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

What is the Difference Between a Sentence Commutation or Pardon?

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

How to Apply for a Pardon

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

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

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

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

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

California Hit and Run Accidents

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

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

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

Legal Defenses

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

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

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

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

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

Protest Charges

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

They include but are not limited to:

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

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

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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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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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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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