Articles Tagged with California criminal defense attorney

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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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Earlier this year, San Diego police arrested dozens of people believed to be amongst North County San Diego’s biggest criminal gun and drug dealers in a massive takedown. In total, 55 men and women were charged in 10 federal indictments that allege heroin and methamphetamine trafficking, along with illegal gun possession, money laundering, robbery, theft, assault, and burglary. By March 1st, 46 out of the 55 suspects were in custody.

The arrest was part of a year-long investigation involving wiretaps, surveillance, and 150 cops.  Acting U.S. Attorney Alana Robinson says many of the defendants are connected to drug traffickers in Tijuana (most likely the Sinaloa cartel). Mexican drug cartels then used San Diego gang member as distributors of their heroin.

It is reported that eight defendants currently remain at large, two of which are believed to have fled to Mexico. One of them is Yadira “Pini” Villalvazo, who prosecutors identified as the leader Tijuana operation, and imported and distributed heroin in North County to send tens of thousands of dollars back to Mexico. Authorities said the investigation also targeted meth traffickers.

Heroin Laws in California

The possession and sale of heroin is still a crime in California even though there have been a couple reforms that would steer the penalties for first-time offenders towards rehabilitation instead of jail. In 2001, California voters passed Proposition 36, the Substance Abuse and Crime Prevention Act (SACPA). SACPA mandates that those arrested for non-violent drug offenses be offered the opportunity for treatment instead of jail time. Prop 47, passed in 2015, made possession of heroin a misdemeanor for first time offenders and many other cases. Penalties can include a year in jail and a $1,000 fine.

However, it is a felony if you have a prior conviction for possession or if you also have a record for other serious felonies such as manslaughter or a sex crime. See CA Health and Safety Code § 11350. Possession for the sale of heroin remains a felony no matter what, and it is punishable by three to five years of imprisonment and a fine up to $20,000. See CA Health and Safety Code § 11351. You are not eligible for the drug diversion program if you have this conviction.

Selling or transporting heroin is probably the most serious of drug crimes, punishable by up to 25 years in prison. The number of years you face depends on the amount you are convicted of selling or transporting. Continue reading

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It is reported that legislation will be introduced that will update California’s laws criminalizing HIV.  It would make it so that a person could not be prosecuted for intentionally transmitting the virus if his or her sex partner tested negative for HIV. This comes at a time in which health officials throughout Southern California are reporting alarming increases in STDS, particularly syphilis, gonorrhea, and chlamydia, which are also part of a national epidemic.

According to the Centers for Disease Control and Prevention, STD rates reached a record high.  While officials do not know the definitive cause for such high rates, they include medical and social factors ranging from a lack of adequate screening to decreased fear of curable STDs.  Specifically, Orange County reported cases of gonorrhea were up 75% from 2011 to 2015.  Syphilis cases jumped 80%, and chlamydia increased 14%. The California Department of Public Health say the highest STD rates are found among young people, African-Americans, and gay and bisexual men, according to the state.

California Has Strict HIV Disclosure Laws

Under current California Law, it is a felony if you fail to disclose to your sexual partner that you are HIV positive with the specific intent to transfer the virus to him or her.

Pursuant to California Health and Safety Code § 120291(a),“Any person who exposes another to the human immunodeficiency virus (HIV) by engaging in unprotected sexual activity when the infected person knows at the time of the unprotected sex that he or she is infected with HIV, has not disclosed his or her HIV-positive status, and acts with the specific intent to infect the other person with HIV, is guilty of a felony punishable by imprisonment in the state prison for three, five, or eight years.”

Another law on the books targets sex workers who are HIV-positive. If a prostitute is convicted of solicitation, he or she faces up to 16 months in prison.

Legal Defenses

Proving intent to infect someone with HIV is extremely difficult. You cannot be prosecuted if you did not know you were HIV positive, or even if you have never even been tested. Criminal statutes punishing HIV transmission have been held not to violate the Constitution’s equal protection clause because these laws punish voluntary conduct rather than the status of being HIV positive.

Lastly, just because you are not criminally liable does not mean you cannot be held civilly liable for damages in civil court.    Continue reading

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This past summer, the Los Angeles Police Department’s elite Metropolitan Division flooded high-crime, predominantly African American and Latino communities in unmarked police cars, stopping drivers with paper license plates, tinted windows, or broken tail lights as a pretext to search for illegal guns and find dangerous criminals. The operation was part of an emergency operation in South  L.A. While terrorizing its residents, there is evidence that the strategy paid off. During the six-month operation, the LAPD Metro Division seized 300 guns and the number of killings in the area stabilized. It is reported that half of Los Angeles’ violent gun crimes occur in South L.A.

According to the Los Angeles Times, which interviewed many of South L.A’s residents, the Black residents felt deeply resentful over how often they are pulled over and the way they are treated by some police officers. A recent survey funded by the LAPD confirmed what many already knew: Black residents are much less likely than other residents to view cops as honest or trustworthy.

The LAPD now faces a conundrum: They want to crack down on crime, but they also want to build ties with historically marginalized communities, and not alienate law-abiding citizens.

Pretextual Searches are Legal

Pretext, in both civil discrimination cases and criminal law cases, generally refers to a reason that covers up other true motives or intentions. Pretextual stops (ie. traffic stops) are often used by police to initiate a stop and search of people they suspect to be involved in criminal activity.  This means police will stop you for an innocuous ‘violation,’ such as a broken headlight, and then proceed to investigate you on a separate and unrelated criminal offense.

Because automobiles and traffic flow are so heavily regulated, police officers have wide discretion (called prosecutorial discretion) as to whom they stop and ticket for a traffic violation. Not only are police able to make traffic stops based on countless legitimate ‘offenses,’ they also get to decide whom they will ticket for traffic offenses or investigate.

Judges have repeatedly sided with police on pretextual searches, and courts have generally ignored a cop’s subjective motivation while evaluating the legality of their conduct. The Supreme Court has held that if a cop has a valid legal basis for detaining a driver, the stop is valid no matter what the officer’s subjective purposes might be. See Whren v. U.S., U.S. Sup. Ct. 1996; Arkansas v. Sullivan, U.S. Sup. Ct. 2001. Continue reading

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Every new year, California Governor Jerry Brown sifts through hundreds of bills sent to his desk and signs into law a slew of legislative changes in the criminal law sector for the state. In 2016, Brown saw 1,059 bills come forward, 898 of which he signed into law. He also vetoed 159 and let two become law without signing them. Here are the key laws that will be enacted in 2017 that affect the criminal law sector.

Assault Weapons

As part of a legislative package toughening gun regulations, Senate Bill 880 and Assembly Bill 1135 sought to close a loophole for guns with reloading devices called “bullet buttons.” While California already prohibits the sale and possession of assault weapons (defined as those with magazines that can be detached without disassembling the gun), “bullet button” devices quickly release spent magazines to get around the ban. As of the new year, it is now illegal to sell semi-automatic, centerfire rifles or semi-automatic pistols that do not have a fixed magazine and also have one from a list of specific features in California.

Changes in Sex Crime Laws

Senate Bill 1322 also took effect at the start of the new year. It prevents law enforcement from charging those under 18 years of age with prostitution or loitering with the intent to commit prostitution and was intended to protect victims of sex trafficking from criminal prosecution. Senate Bill 1129 further removes the mandatory minimum sentencing penalties imposed for repeat prostitution offenders who are 18 years of age or older. This law will give judges more discretion in sentencing on a case by case basis as opposed to hardline penalties.

However, while some criminal reform laws have made things more lenient on certain offenders, other laws, like Assembly Bill 2888 ensures that certain rape cases have mandatory minimum prison sentences that are not suspendable. This was a direct reaction to the lenient sentencing of convicted Standford rapist Brock Turner. Lastly, Assembly Bill 27 will classify all forms of rape as a violent felony.

Uber and Lyft

Companies including Uber and Lyft can no longer hire drivers who are registered sex offenders, have been convicted of violent felonies, or have had a DUI conviction within the last seven years.

Date Rape Drugs

Senate Bill 1182 makes the possession of date rape drugs like Roofies with intent to commit sexual assault a felony instead of a misdemeanor. Continue reading

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