Articles Posted in Criminal Defense

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Crimes against the elderly are increasing at a disturbing rate in San Diego, California. In 2016, the last year with data available, the violent crime against elderly San Diego residents increased 13%. This accounts for 780 violent crimes against the vulnerable senior citizens living in San Diego – 14 homicides, 24 rapes, 205 robberies, and 537 aggravated assaults, according to CBS 8. In total, elder abuse cases, which include other types of elder abuse such as financial abuse and mental suffering, increased by 39% between 2015 and 2016.

The rise in elder abuse is especially problematic as San Diego increasingly becomes a destination for retirees. According to CBS, the number of San Diego residents over the age of 65 is expected to increase by 23% by 2050. Currently, only 13% of San Diego County residents are over the age of 65.

Because more elderly residents could mean more elder abuse, San Diego is proactively trying to protect this vulnerable group of people. The District Attorney’s office, responsible for prosecuting crimes, gathered several government agencies, including the Aging and Independent Services, and created the “San Diego County Elder and Dependent Adult Abuse Blueprint.”

The Elder and Dependent Adult Abuse Blueprint is meant to identify the unique needs and challenges faced by the elderly. According to Sheriff William Gore, these unique considerations include various health challenges, such as dementia or Alzheimer’s, as well as any other related disorders or cultural issues. Then, the local government’s plan-of-action will implement “best practices” for handling these problems by looking at how other local governments and states handle the same issues.

San Diego County urges anyone who believes they may be a victim of elder abuse, or knows of someone who may be a victim, to call Adult Protective Services at 800.510.2020. In 2017, the hotline received 14,700 referrals and handled almost 10,000 cases. According to Adult Protective Services, this represents an increase in the number of callers, though the number of callers in previous years was not available. According to the agency, financial abuse was the most common form of elder abuse. Financial abuse occurs when an elderly person’s property or assets are being misused – typically through fraud, trickery, force, or threats of force. Mental suffering and physical abuse were listed as the second and third most common complaints, according to the agency.

Discussing the disturbingly high rate of elder abuse in San Diego and the government’s comprehensive response, District Attorney Summer Stephan told CBS News, “Our society will be judged on how we treated our most vulnerable, including our children and our seniors.” Continue reading

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California appears to be on the cusp of initiating a statewide reform of their bail laws. The state’s notoriously high rates for bail have put it first in the nation, with an average bail of almost $50,000 per person accused of a crime. Critics of the current system argue that the high costs are unjustified and essentially jail individuals because they are poor. The sky-high bail rates increase the populations of an already-overcrowded jail system at no small expense to taxpayers. According to a study by the UCLA School of Law, California jails 59% of all people accused of a crime in the state at a cost of roughly $204 per day. Nationwide, only 32% of individuals accused of crimes are held until their trial, and the average pretrial supervision program costs a mere $15.

The state’s ineffective bail system gained national attention this month when an elderly man in San Francisco was held on a $350,000 bail, despite being accused of minor crimes. The San Francisco resident, Kenneth Humphrey, was accused of stealing $5 and a bottle of cologne. In response, the police charged him with robbery and residential burglary because he allegedly stepped into his neighbor’s room to take the cologne and $5 bill. Unable to pay the $350,000 in bail, Humphrey spent 250 days awaiting trial in San Francisco County Jail.

After a panel of state appellate court judges ordered a new bail hearing in January, the judges did not mince words in their condemnation of Humphrey’s treatment. “A defendant should not be imprisoned solely due to poverty,” the Court said. Humphrey’s treatment was the “antithesis” of the Constitutional protections of liberty and due process. Advocates point out that when impoverished people are held for long periods of time awaiting trial, they not only lose their jobs, but they are also more likely to accept a plea deal – even when innocent – just to be released from jail. While a plea deal results in being released from jail, the person accused of the crime will likely no longer have his or her job. Even worse, with a criminal record, it will be more difficult to locate employment.  

Before the court ruling, California followed a complex bail schedule and algorithmic risk schedules, described by the UCLA School of Law as “opaque.” According to the same study, the for-profit bail industry’s powerful lobbying arm is behind the high bail fees, high prison rates, and ultimately high spending on imprisoning people who are presumed innocent under the Constitution of the United States. Now, according to the judges, prosecutors and judges must take “ability to pay” into account when determining bail.

That argument resonated with California Attorney General Becerra, who said, “Bail decisions should be based on danger to the public, not dollars in your pocket.” The Attorney General joins a growing chorus of California politicians seeking to abolish “cash-only” bail; that list includes Lt. Gov Gavin Newsom, Sen. Kamala Harris, and California Chief Justice Tani Cantil-Sakaueye. According to the three-judge panel in Humphrey’s case, legislation is desperately needed. Thankfully, California has drafted a bail reform bill already in SB 10. All they need to do is sign it.   Continue reading

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Gov. Jerry Brown continues his push to overhaul California’s criminal justice system by announcing an additional $50 million in funding to rehabilitate former inmates. The $50 million in funding would expand job training for inmates while they are incarcerated and then help the inmates locate employment upon their release from state prisons. Currently, the state of California only spends $106 million in rehabilitation and reentry programs.

For advocates of criminal justice reform, the roughly $150 million on rehabilitation services is not nearly enough to tackle what has become a serious problem in the state. Of the 36,000 California prisoners released in the last year with data available, a full 46% were convicted of another crime within just three years. According to Assemblyman Tom Lackey, “That’s a very miserable number. It indicates that the efforts as currently constituted, are not being as successful as they need to be.”

Lackey has introduced a new bill in the state Legislature which would require the state’s inspector general to evaluate the effectiveness of all of the state’s rehabilitation programs and report back to the Legislature every 10 years. According to Lackey, this will not only improve the lives of California inmates by providing effective rehabilitation opportunities, but it will also ensure California is spending its money wisely.

Assemblyman Reggie Jones-Sawyer agrees with Lackey about the need for accountability concerning the state’s rehabilitation efforts. Both legislators said they would like to see an investment in education as part of the broader shift to reduce recidivism. Gov. Brown’s proposal does not propose any new funding for education.

Between the Democratic Governor and multiple Republican legislators, it appears a bipartisan consensus is emerging over the need to help former inmates integrate better into society. The only problem is how exactly to fix the problem and how much money should be spent. In a state with a projected budget surplus of $6 billion over the next year, proponents of rehabilitation reform state the Governor’s new funding is not a “dramatic” change to money spent on rehabilitation programs and fail to include programs for inmates once they are outside of prison.

Further, considering Gov. Brown proposed budget for the next year includes $12 billion for the Department of Corrections and Rehabilitation, a full 9% of the state’s budget – the $50 million increase appears to be more of a wink to a large problem than a serious attempt to solve it, according to critics of Gov. Brown’s allegedly mixed record on criminal justice reform. Of the $50 million being proposed for rehabilitation efforts, more than half will be spent on “training inmates to become firefighters.” Continue reading

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Gov. Jerry Brown signed legislation modernizing California’s sex offender registry, allowing potentially thousands of current sex offenders to be removed from the publicly accessible list beginning in 2021. The measure was introduced by Los Angeles District Attorney who noted that the registry, with over 105,000 names, has become so large and all-encompassing that it undermines the registry’s intended purpose – to assist in investigating and prosecuting new sex crimes. The current registry requires law enforcement to spend “hours on paperwork for annual evaluations of every offender,” according to the Los Angeles Times. Considering that one out of every 400 Californians is on the sex offender registry at this point, that amounts to a lot of wasted resources.

As one of the only four states in the country that require lifetime registration for a sex crime, the database includes offenders who have not offended in decades and pose no risk to the public – but still occupy hours of law enforcement agents’ time every year and swell the sex offender registry to the point of uselessness. For example, back in the 1960s and 1970s, police commonly raided public parks to arrest gay men having consensual sex. Gay rights activists have long protested these individuals being listed next to criminals who harm children.

The new sex offender registry will be much more focused on public safety, according to Gov. Jerry Brown’s office. For the lowest-level offenses, such as urinating in public, a person may petition the court to be removed from the sex offender registry within 10 years of committing the offense. A judge will assess each case individually, with the input of the District Attorney. After 20 years, individuals convicted of more serious crimes will have the opportunity to petition the judge to have their name removed from the registry. These crimes may include rape by deception and lewd and lascivious behavior with a child under 14, according to the newspaper. In any case, the name will only be removed if the person has gone the entire period of time without reoffending.

Under the new law, the sex offender registry will also identify sex offenders by their level of risk. Sex offenders accused of Tier 1 crimes, which include misdemeanor sex crimes or non-violent felony sex crimes, will be able to have their name removed from the sex offender registry as long as they do not re-offend during that time. Sex offenders accused of Tier 2 crimes, which include violent or serious felonies, will be removed from the database after going 20 years without reoffending. Sex offenders in Tier 3 are repeat offenders, predators who have committed sex crimes against children, or participated in the sex trafficking of minors. All Tier 3 sex offenders will spend their entire lifetime on the sex offender registry. Continue reading

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San Diego’s crime rate has continued its two-year decline, leading the city to the lowest crime rate in almost 50 years, according to The San Diego Union-Tribune. Overall, the newspaper reported a 7% decline in crime between 2016 and 2017. This followed a 2.3% decline between 2015 and 2016. According to San Diego Mayor Kevin Faulconer, the drop in crime rates was the result of increased trust between the community and the police officers along with an increased use of crime data and technology, which enabled the city to allocate its resources more efficiently.

The largest drop in crime rates in the city was among some of the most violent crimes, to the delight of San Diego residents. Murder rates fell a full 32% between 2016 and 2017, with only 34 homicides reported in the last year. The other two crimes with the largest drop include burglary, dropping 20%, and vehicle theft, with 12% fewer in the same time period. Overall, violent crime fell 2% and property crime fell 8% between 2016 and 2017.

According to the Mayor and the police department, the sharp reduction in homicides, including murder and manslaughter, may be attributable to “Shotspotter,” a new technology that “automatically informs police officers when shootings occur,” according to the San Diego Union-Tribune. After crime data revealed that the southeastern communities of San Diego, including Lincoln Park, O’Farrell, Skyline, and Valencia Park, were most likely to experience gun violence, the “Shotspotter” system was set up in the area. Since 2016, there have not been any deaths by gun violence in those areas. The Chief of San Diego Police attributed the drop in property crime to an undercover operation lasting eight months last year, leading to the indictment of 60 San Diego residents.

San Diego is not the only city in the area, or in the state of California, to see a reduction in crime rates. Escondido, notably, saw a 21% decline in the overall crime rate during the first half of 2017, the time period with the most recent data available according to the newspaper. According to Escondido Lt. Ed Varso, most of that reduction consists of a 24.2% reduction in property crimes caused by the police departments “proactive stance” to California’s criminal justice reform initiatives stemming from the passage of Proposition 47, which was approved by California voters in November 2014.

Proposition 47 significantly reduced penalties for non-violent, low-level crimes that occurred in the state of California, including shoplifting, grand theft, receiving stolen property, forgery, fraud, writing a bad check, and personal use of most illegal drugs. The reduction only applied to those crimes of theft below $950. The law, which went into effect in January 2015, allowed over 1 million Californians to change past felony convictions to lower-level misdemeanors.

The other nearby cities of Vista, Carlsbad, Chula Vista, El Cajon, and Oceanside saw a reduction in the crime rate, albeit a smaller one, when comparing the first half of 2016 and the first half of 2017. Continue reading

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Under a “little-noticed provision” on Proposition 64, the voter-approved law legalizing recreational marijuana, California residents with marijuana convictions may be eligible to have those felonies and misdemeanors reduced or, in many cases, fully expunged off their criminal records, according to The San Diego Union-Tribune. According to the San Diego District Attorney’s Office, the city has proactively expunged 700 criminal records since the law came into effect at the beginning of the year and released 55 people incarcerated because of marijuana. The city still has 4,000 cases awaiting action by the courts.

For California residents who have been impacted the most severely by their marijuana convictions, so-called “high priority” convictions, the public defender’s office and district attorney’s office have moved aggressively and quickly to expunge the records. These include California residents who have marijuana convictions preventing them from gaining employment or limiting their access to government benefits or housing.

According to Summer Stephan, interim district attorney for San Diego, “We want to be pro-active. It’s clear to us that the law was written to allow this relief, and it’s important that we give full effect to the will of the people, especially for those who are most immediately affected.”

The problem, according to the San Diego public defender, is that there is no unified system for identifying marijuana-related convictions. The current database only goes back to the early 2000s, therefore, individuals with marijuana convictions in California may need to proactively petition the courts for an expungement. “It won’t happen overnight, but we are committed to seeking relief for everybody who is entitled,” said Angie Bartosik, chief deputy primary public defender. Bartosik noted that for those seeking relief under Proposition 64, there is a form available online at courts.ca.gov and, for most, filling out the form will be sufficient to expunge their records.

Effectively expunging all marijuana convictions is a statewide problem. Only 5,000 Californians have sought to have their marijuana convictions removed from their records, according to the Drug Policy Alliance. Considering the fact that there were more than 500,000 people arrested for marijuana just between 2006 and 2015, this means that hundreds of thousands or more Californians are likely eligible. In San Francisco, where only 20 people have filed petitions for expungement, district attorney George Gascon announced that the city will proactively search and expunge all marijuana convictions dating back to 1975. The San Francisco DA estimates that this would include over 3,000 misdemeanors and almost 5,000 felony convictions. Continue reading

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In a remarkable story reported by the Voice of San Diego, neighbors reportedly called the police on a home in Chula Vista 53 times before Border Patrol and the San Diego County Sheriff’s department stumbled upon a human smuggling ring. The city had been getting reports for over five years and still failed to uncover the ring.

Back in November of last year, police pulled over a vehicle for a taillight infraction, without suspecting that anyone involved was guilty of other crimes. Panicked, the passenger took off. The chase led them directly to a home where police and border patrol responded to a request for backup. They happened upon a human smuggling event taking place right in the driveway.

Police records show that 53 calls have been made on that house. The neighbors have reported everything from grand theft, assault, child abuse, and domestic violence. The Police Department says they did not have any indication a human smuggling ring had been operating throughout that time, which is why nothing was done about it the first 53 times. Both Border Patrol and the Police Department ended up making 12 arrests that day, most of which were undocumented immigrants. Nine were taken by Border Patrol. Three of them face alien smuggling charges, while the other six are being held in federal custody as material witnesses in the smuggling case.

However not everyone is convinced that it was sheer chance. Ginger Jacobs, an immigration attorney, said she is not familiar with this incident but has seen other cases in which immigration officials used traffic violations to stop and detain undocumented immigrants. Jacobs said it is not uncommon for Border Patrol to look for people as part of an immigration sting by looking for their cars. The two agencies have flatly rejected that they were looking for a reason to pull the suspect over.

Immigration Pretext Traffic Stops

Traffic stops motivated by immigration status seemed to have surge since Trump took office, all the way from California to states like Georgia. In fact, the Supreme Court has already partially upheld an Arizona law requiring police to make reasonable attempts to determine an individual’s immigration status if there was reasonable suspicion s/he was unlawfully present in the U.S. See Arizona v. U.S. 132 S. Ct. 2492 (2012). The police can currently pull you over for almost anything they deem legitimate (ie. tinted windows, texting while driving, etc.). While local police do not have jurisdiction to enforce immigration status, they can detain you long enough to call ICE or border patrol over to investigate you further. Continue reading

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In 2017 alone, the California legislature passed nearly 900 bills that Gov. Jerry Brown then signed into law. Most of them take effect in January 2018. Here is a summary of the key criminal law changes that will take effect this year:  

  • No California school employee can carry a concealed weapon onto campus. Before, school officials had discretion over the issue.
  • Anyone who “willfully records a video” of a violent attack as an attacker or accomplice and streams it online on sites such as Facebook could receive tougher punishment.  See A.B. 1542.  The new law does not require a judge to hand down the tougher sentence, and applies only to the 23 existing crimes in California identified as “violent” felonies.
  • No juvenile offenders will have to serve life without parole and those already behind bars would become eligible for release after 25 years. This reform is intended to ease punishment and fines for young people.
  • Counties may no longer charge fees to a family for everything from detention to monitoring of juveniles. This old policy was criticized for disproportionately affecting low-income communities of color.
  • It is now a misdemeanor to openly carry an unloaded long gun in public unincorporated areas outside of incorporated cities that are deemed by counties as not appropriate for such firearms. This law was requested by the Los Angeles County Sheriff’s Department to expand state law that already bans openly carrying handguns in areas outside cities.
  • Californians convicted of crimes that require them to get rid of their firearms must now prove they have done so before their court cases can be closed. This change is due to Proposition 63, a ballot measure that passed last November. The measure was obviously opposed by the NRA.
  • Assembly Bill 41 would require law enforcement agencies to report to the state how many sexual assault kits they collected and have examined, and how many they have not. Agencies also have to explain why a rape kit was not tested. This law was opposed by the Sheriffs Association that claims testing every single rape kit will be a financial and resource burden to the state.

Continue reading

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It has been reported that two men, Jon Ritzheimer and Ryane Payne, involved in the occupation of Malheur Wildlife Refuge in Oregon, haveviolated their release conditions by visiting the Bundy ranch in Nevada without permission. Evidently, the evidence was in Facebook photos and discovered by a federal pretrial services officer in Oregon who notified Brown. As a result, U.S. District Judge Anna Brown has moved up Jon Ritzheimer’s date to surrender to prison from Feb. 15 to Jan. 12. Ryan Payne was ordered to return to home detention in Las Vegas. Both men have been forbidden from having contact with any defendant from either the Oregon or Nevada standoff cases before their prison sentences begin.

Originally, Mr. Ritzheimer’s release condition had specified a no-travel restriction that only allowed him to travel from Arizona to Oregon for court proceedings. Mr. Payne was given permission to go from Las Vegas to Montana for Christmas after a mistrial was declared last month for the Bundy-affiliated defendants involved in the Nevada armed standoff in 2014. Neither of the men was allowed to go to the ranch. Judge Brown decided to deal with the allegations informally instead of through formal proceedings.

Violating Release Conditions in California

There are several ways a court can conditionally release you from prison or jail. You can be released on bail before your trial proceedings start, released on your own recognizance (which does not require paying bail), or you can be released on parole after you have already served some jail time.

If you have been released on your own recognizance, it means you have simply promised to attend all court dates and proceedings. See CA Penal Code § 1318. This option is saved for those who are a low flight-risk and are not accused of serious crimes. Failure to appear in court then, results in another misdemeanor if you were charged with a misdemeanor, and a felony, if you faced a felony charge.

If you have been released on bail, that can come with certain conditions from the judge, such as staying away from certain people. A violation of a bail release can result in either a warning, arrest, a revocation of bail (going back to jail), an increased amount of bail, more restrictive bail conditions, and even a contempt of court charge. Continue reading

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In San Diego, criminal charges were filed against a a La Jolla couple accused of maintaining dangerous, substandard living conditions at a Mid- City apartment complex they own. This was announced by the City Attorney’s Office earlier this week. John and Mahin Nobe, who currently face 10 criminal charges, are repeat offenders who have been previously prosecuted for similar violations and for leasing to illegal marijuana dispensaries. Amongst the charges are misdemeanor charges of providing inadequate heating and improper wiring as well as permitting an infestation of vermin and visible mold growth on their property.

Prosecutors allege that the couple’s Rex Avenue apartment complex in Mid-City was leased in July, August, and September to seven Congolese refugee families with young children. The apartments were rented for up to $2,250 a month. The families complained about the substandard conditions, but their requests were ignored. A city inspector with the Code Enforcement Division of the Development Services Department found numerous violations, including mold, rodent and roach infestation, inadequate heating, inadequate sanitation, improper electrical connections and a lack of proper fire exits and fire extinguishers. It is also reported that the inspector found junk outside the building. The apartments were also illegally converted from two-bedroom apartments into three or four-bedroom units.

The City Attorney’s Office, Administrative Law Judge Michael Scarlett ruled in an administrative ruling that the property was substandard under city and state codes and considered a public nuisance earlier this month. The judge ordered the couple to reimburse the city of San Diego $34,278 in relocation benefit payments advanced by the city to the seven families. They were also assessed a civil liability of $10,000 for their failure to pay relocation benefit payments directly to their tenants. They were also ordered to reimburse the city for the $6,845 in investigation costs.

Criminal Liability on Landlords

California Law requires landords to ensure that certain conditions are met to make the living space habitable and safe for tenants. These conditions ensure proper electric, gas, and plumbing utilities as well as getting rid of fire hazards. Landlords are also legally obligated to secure the premises in order to prevent foreseeable criminal acts in the area, such as robberies or thefts.  This means locks and appropriate security.

Lastly, S.B. 655, which was signed into law by Governor Jerry Brown in 2015, makes it a misdemeanor for a landlord to fail to provide things such as inadequate heating or failing to remediate a mold problem. Continue reading

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