In the current political environment, it is no surprise that immigrants seem to be targeted more and more, and the border patrol is out in full force. Just a few months ago, a couple was detained by U.S. Border Patrol after a routine traffic stop. People usually think that Border Patrol can only be found in areas closest to the U.S.-Mexico border, but that is actually only a fraction of their enforcement efforts.   

What is Border Patrol Jurisdiction?

Border Patrol agents are sworn federal agents capable of enforcing the law in all 50 states and all U.S. territories. Generally, agents can operate within 100 miles from each international border.  This pretty much covers the entirety of San Diego County. Under certain conditions, they can also go beyond that distance. They are allowed to make arrests or question anyone potentially violating immigration law, but they do not issue things like speeding tickets. However, traffic violations such as a broken taillight or speeding can be used as a pretext to stop you to question you further.   

Where can Border Patrol Stop You?

Border Patrol agents are allowed to set up checkpoints even in areas not in the immediate vicinity of the border. They can stop drivers to question the occupants of a car, and even request proof of immigration status. They are also allowed to station themselves along highways and roads to be on the lookout for people violating potential immigration laws or committing crimes.

They are allowed to stop drivers under the “reasonable suspicion” standard. That is, Border Patrol has to have more than a hunch that a crime or immigration violation has been or will be committed. This is a lower standard than the “probable cause” standard, which means there is concrete evidence to indicate a crime has been/is being committed.

These standards get murky, since stopping drivers based solely on the color of their skin is considered racial profiling. However, border patrol is allowed to consider race or nationality while deciding to stop and question people, as long as agents can point to indications of criminal activity.

In this political environment, it is recommended you have the name and number of an immigrant rights lawyer ready in case you get stopped by law enforcement officials.    Continue reading

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

More than 1,100 San Diego police officers are now outfitted with body cameras, and the San Diego County District Attorney’s office received more than 100,000 body-camera videos from police across the county since 2016. Body cameras were initially intended to be a transparency tool to reassure the public that their police force follows the rule of law. In other words, body-worn camera footage is now a staple of San Diego’s police force, yet members of the public have not been able to view it.

In fact, even after a trial is complete, it is nearly impossible for members of the public to access body camera footage. Police agencies claim that they withhold body camera videos from the public to preserve the accused’s right to a fair trial and to avoid tainting the jury pool.

Public Records Requests

Neither the San Diego Police Department nor the San Diego County district attorney’s office provides body camera footage through California’s open records laws. Instead, a requester has to go to the Superior Court where the trial is held, where copies of the video are kept in the evidence room. Even then, seeing the video requires a court order.

When the Evidence can be Viewed

Since police footage is next to impossible to obtain, there are only a few ways a defendant can see his or her own video.

  • If the prosecutor uses the body camera footage as evidence to try to obtain a conviction or compel a plea deal. The footage gets shared as part of the discovery process.
  • Prosecutors may share the tape during trial as part of the evidence.
  • If the District Attorney releases the video. The SDPD last year released a policy that provides a path for releasing videos of officer involved shootings in cases where no charges are being filed against the officer. This policy states that the district attorney has to by default release the video.
  • If you file a citizen complaint against the cop. The police may be willing to release it to prove their innocence.

Continue reading

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

This week, a homeless San Diego man, Richard Stevenson, was sentenced to two years probation and ordered to stay away from where he had pitched a tent on a city street in downtown San Diego earlier this year. He was found guilty of two counts of illegal lodging and encroachment by a 12-person jury. It took a city attorney, police officer, public defender, activist, and a judge to get him a spot in the homeless shelter.

Richard Stevenson’s case highlights the enormous amounts of resources that go into tackling San Diego’s homelessness problem. Stevenson was arrested April 5, at 5:45 a.m, 15 minutes after the city policy allowing people to sleep in public ended. Due to the state’s housing crisis, homelessness is becoming a bigger and bigger problem, with the city criminalizing homelessness with statutes intended to address nuisances and trash, and other seemingly innocuous laws.

San Diego has been sued before for excessive enforcement of the state’s illegal lodging law and now faces another class action for ticketing and arresting people living on the street. According to a 2015 San Diego Police Department training bulletin on illegal lodging, officers are advised to only enforce illegal lodging in areas where they have received complaints.

It has been reported that most people who show up for their court dates plead guilty and are sentenced to probation. Stevenson decided to fight the charges and was represented by a public defender.    

Illegal Lodging

According to a study being released this week by the UC Berkeley School of Law Policy Advocacy Clinic, 58 California cities have enacted hundreds of new laws since 1990 that target or disproportionately affect homeless people.

CA Penal Code § 647(e) makes if a crime to lodge “in any building, structure, vehicle, or place, whether public or private, without the permission of the owner or person entitled to the possession or in control of it.” This can result for having a citation (ticket) issued to you for doing something like sleeping on a park bench or the street, or pitching a tent on public property.

Illegal lodging/camping tickets are misdemeanors that are punishable by six months imprisonment or a $1,000 fine.


In some cases, homeless people can be arrested for trespassing, if they unknowingly enter private property (such as a park that may be privately owned by a foundation, or trust). See CA Penal Code § 602. However, if you did not “occupy” the property (i.e. you were just passing through briefly), you have not interfered with the property owner’s property and have a legal defense to the crime of trespass. Continue reading

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

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

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

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

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

As a result, the criminal threat charges were dismissed.

The Current Standard for “Threats”

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

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

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

A couple in San Diego, Carlos Nieblas-Ortiz and Martha Valenzuela-Luna, were reportedly stopped by two deputies in Mission Valley for a cracked windshield. They had their two children with them, one of whom is currently a DACA recipient. Once they were stopped, they were turned over to federal immigration officials. Nieblas-Ortiz said deputies never asked them for their immigration status, and did not issue a citation, but they were prevented from leaving.  Instead, deputies called U.S. Border Patrol, and the family was forced to wait over an hour.  Nieblas-Ortiz was released on bail, but he has told Telemundo 20 he is still not sure about whether they will be deported.

Mr. Ortiz’s attorney states that his client had presented his license and was not issued a ticket.  Instead, officers called immigration officials on them without informing them what was happening.

This incident has sparked some questions regarding police protocol. On January 25, 2017, Donald Trump issued an executive order authorizing local law enforcement agencies to deport undocumented immigrants who have criminal records. Many living in San Diego County feared that local law enforcement officers would be called to enforce federal immigration law even though San Diego County Sheriff’s Department (SDPO) has already stated they will not be stopping and arresting people based on immigration status.

The SDPO claims that in this case, deputies saw the low-riding truck in Mission Bay, a familiar spot for traffickers to unload drugs that will then get picked up by other cars, so this was a narcotics and therefore, a criminal case.

Do You Have to Provide ID? How Long can You be Detained?

Immigration and criminal law interactions are getting more heated and confusing than ever.  Being in the country without documentation is currently not a criminal act that California police departments are actively enforcing. Police may not arrest someone soley for refusing to show ID, as long as the request for ID is not reasonably related to the scope of the stop. However, what is “reasonably related” has never been clearly defined. For example, if you were pulled over for a traffic violation, then police have the right to ask for your ID since your right to drive is related to having a driver’s license/ID.

How long police can detain someone without formal charges has also not been clearly defined. The litmus test is typically “as long as it reasonably takes to conduct the investigation.”  However, police will argue that an hour’s wait for immigration officials is reasonable, as they cannot control the wait time. Continue reading

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