Articles Posted in Criminal Defense

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Saturday, March 7th marked the seventh anniversary of the Balboa Park “Chelsea’s Run” to commemorate the 17-year-old Poway High School student who was sexually assaulted and killed in 2010 by convicted sex offender John Gardner. Chelsea King was abducted while running in a Rancho Bernardo park by Gardner, the same man who admitted to killing Amber Dubois of Escondido. Garner pled guilty and was sentenced to life without parole.

Six months later, “Chelsea’s Law” was passed after being signed by Gov. Arnold Schwarzenegger. The law sharply increased penalties for those convicted of sexual assaults on minors (including the sentencing of life without parole). It also included reforms to increase outreach to paroled sex offenders most likely to re-offend, and made GPS monitoring mandatory for child sex offenders. It also barred sex offender parolees from being near where children congregate.

A report released five years after the enactment of Chelsea’s Law concluded that at least 332 defendants were charged statewide under various aspects of the Law. In San Diego County, 22 people were charged under the law between September 2014 and August 2015, including two who received terms of 25 years to life.

Aggravated Sexual Assault of a Child

Aggravated sexual assault of a child is an extremely serious crime. It is a felony punishable by 15 years imprisonment to life, along with a fine of up to $50,000. The sentence will increase if there is multiple victims. See CA Penal Code § 269. Additionally, those convicted will be required to register as a sex offender.

One will be charged under § 269 if s/he allegedly sexually assaults a minor under the age of 14, or if the victim is a minor (under 18 years old) and seven years younger than the defendant.

Aggravated Kidnapping

The crime of aggravated kidnapping occurs when someone:

  • Uses force, fear, or fraud against a minor under age 14; or
  • Demands a ransom;
  • Causes the victim bodily harm or death;
  • Violates California’s carjacking law under Penal Code § 215.

See CA Penal Codes § 207, 208, 209. A conviction of aggravated kidnapping carries a prison sentence of five years to life, depending on the circumstances. Continue reading

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In a big announcement, the Lee County Attorney’s Office dismissed the remaining charges against the protestors arrested last fall while protesting the Dakota Access Pipeline. Over 50 people, ranging from their mid-teens to their late 70s, were arrested on charges including trespassing, interference with official acts, and disorderly conduct. While some pled guilty and agreed to pay their respective fines, the majority of protestors pled not guilty and requested a jury trial.

In more than one instance, journalists covering the protests were arrested along with legal observers and protestors. Assistant Lee County Attorney Clinton Boddicker dropped the charges against one reporter, Aaron Murphy, along with those against 10 other protestors that only had one charge against them.   

Those with more than one charge were offered a different deal. One woman, Jessica Garraway of Minneapolis, had her trespassing charge dropped if she agreed to plead guilty to a charge of interference with official acts and pay the maximum fine.

One of the reasons the County likely dropped the charges was in the interests of court efficiency.  “‘If they all ended up having a jury trial, I would probably have had a jury trial every week between now and October, and we still probably would not have reached all the cases,” said Boddicker.

For those who did not show up to court, Lee County says it is planning to issue arrest warrants.

The Press is Supposed to have Reporter’s Privilege

Under the First Amendment of the U.S. Constitution, the freedom of speech and press, and therefore the right of newspapers to cover and publish a story are protected rights that should be free from government interference. However, it is more of a legal gray area when reporters have to news-gather, and go to the protest, or step over a police line to get their photos and story.

Assuming the protest is in a public forum, reporters should not need credentials to cover it—they enjoy a right of access along with the public under the umbrella of the First Amendment.  However, the government is allowed to institute time, place, and manner restrictions on free speech activities.

In those instances, it is recommended that a reporter get credentials or a ‘press pass’ from police departments to be able to cover a protest. Credentials will allow a reporter to cover the protest, but not partake in it. It also does not guarantee that he or she can cross police lines. This means that reporters also cannot “commit” crimes while trying to do their job, such as trespassing. In any event, it can be assumed that police and the current Administration will seek to limit press access and increase retaliation against reporters covering a contentious protest. If you are a reporter, it is recommended you have a criminal defense attorney on-hand if you know you are going to covering an event with high arrest rates. 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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In his first week as president, Donald Trump wasted no time fulfilling his campaign promises of “building a wall” and “banning Muslims” from the United States. On Wednesday, January 25th, Trump issued his Executive Order, ordering the immediate construction of a border wall with Mexico and called for a newly expanded force to sweep up immigrants who are illegally in the country. This order would also revive programs that allow the federal government to work with local and state law enforcement agencies to arrest and detain illegal immigrants with criminal records and share information to help track and deport them. Trump then issued another Executive Order that suspended all Syrian refugee admissions for 120 days and blocked citizens of seven Muslim-majority countries (Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen), refugees or otherwise, from entering the United States for 90 days.

Elected Democratic officials from all over the state did not wait to lambast Donald Trump’s orders. In a news conference in the state’s capital of Sacramento, state Democrats announced they were prepared to fight over sanctuary cities in court. They had also hired former Attorney General Eric Holder to represent them in legal battles with the White House.

Sanctuary Cities and Criminal Law

It should be noted that the entire state of California is pretty much a sanctuary city. A 2014 law passed in the state prohibits jails from holding non-citizens any longer than required by criminal law, with exceptions for violent and serious crimes. Most counties in the state also prohibit holding immigrants beyond their sentence if federal immigration agents do not have a judicial order.

Trump’s Policies

Regardless of California’s policies, Trump’s federal policies still stand to affect certain groups of undocumented immigrants. In particular, presidential administrations have prioritized the deportation of immigrants with criminal convictions. Trump’s order prioritizes anyone who has been charged with a crime, whether or not convicted. It also called on the federal administration to rely more on state and local law enforcement agencies to carry out its priorities. Given how broadly the administration has interpreted the word “criminal,” this may also include immigrants with unsubstantiated gang affiliations.

Trump has also cited in his speeches that there were two to three million “criminal aliens.” A 2015 study from the Migration Policy Institute reported there were only 820,000 undocumented immigrants with criminal convictions in the United States. Regardless of how minor your charge is, it is recommended you work with a lawyer if you are an immigrant facing criminal prosecution. Continue reading

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In the latest controversy involving San Diego rapper Tiny Doo, the 35-year-old rapper and student Aaron Harvey, 28, who both spent about seven months in jail under California’s criminal gang conspiracy law, filed a federal civil-rights lawsuit against the San Diego Police Department (SDPD) and two gang detectives. Tiny Doo and Harvey were arrested back in 2015 under California Penal Code 182 and 182.5, the Gang Conspiracy statute. A judge dismissed their case in 2015, and they were released from jail.

According to the San Diego Union Tribune, the lawsuit ” slams police for arresting the two men under the law, Penal Code 182.5, which was being used for the first time in San Diego and possibly in California.” The law says that gang members with general knowledge of a gang’s criminal activities can be prosecuted for crimes others commit as long as they willfully benefited from or assisted the crime in some way. It also toughened penalties for youth offenders.

Tiny Doo and Harvey were amongst 15 alleged gang members arrested in connection with nine shootings in 2013 and 2014. However, there was no evidence that either man committed the actual shootings. Rather, prosecutors used their rap lyrics as evidence that they promoted gang violence. Tiny Doo and Harvey both claim that the First Amendment covered their lyrics and social media postings. They have also alleged unlawful search and seizure in violation of the Fourth Amendment.

False Arrest

False arrest is also known as “unlawful arrest.” In other words, it is an arrest that occurs without probable cause, and is therefore in violation of the Fourth Amendment guarantee against unlawful search and seizure. Probable cause exists if there is sufficient reason to believe that a crime has been committed. A lack of probable cause will render a warrantless arrest invalid and a constitutional violation.

False arrests might give you a federal 1983 (42 U.S.C. § 1983) claim. Section 1983 of the U.S. Code enables you to file a civil action for being deprived of your constitutional rights. If you succeed in your claim, you will get statutory damages.  

False arrest claims can also lead to state tort law claims. A “tort” is a civil wrong, and it gives the injured party the right to sue the person who caused the harm. Victims of torts can sue for damages to compensate for economic damages (ie. loss of employment), pain, suffering, and humiliation. Tort claims against government entities in California like a police department are subject to filing deadlines set forth in California Government Code § 911.2. Under § 911.2, if you are suing the government for monetary damages for a tort, you must file the claim within six months of the “accrual of cause of action.” Continue reading

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It has been reported by the San Diego Union Tribune that the amount of computer extortion crimes has significantly increased. Victims are getting notices that they have downloaded a virus and will have to pay X amount to ‘get rid of it.’ Victims are accidentally downloading ransomware. Hackers load malicious software onto people’s computers via emails, decoy ads, bogus news stories, and code embedded through websites. They then charge money to “remove” this ransomware. It is a form of extortion.

According to Special Agent Chris Christopherson, who investigates cyber crimes out of the FBI’s field office in San Diego, it is “entirely possible that we’ll have far in excess of $1 billion in losses” worldwide related to ransomware.” The final tally for 2016 has not been completed yet. The FBI claims that every hour, about 4,000 computers around the world become infected with ransomware. This is an exponentially larger problem for the city of San Diego, which faces daily attacks against its 14,000 desktop and laptop computers.

According to cyber experts, many victims never report the extortion because they feel ashamed for getting duped, or are worried that others will know they visited a pornography website or some other questionable page. Others do not know where to report the attack and doubt that law enforcement will investigate the incident.

Lately, there is increasing concern about the innovations seen in ransomware software. The new codes will offer to decrypt infected victim’s computers as long as they are willing to ‘infect someone else’ in their contact list.

Internet Crime

Internet crime is a blanket crime that generally describes fraud crimes involving the use of the internet or computers. These encompass fraudulent schemes carried through email, “phishing” (using email to obtain sensitive information), or accessing a computer or its data without permission.

In order to convict someone of internet fraud under federal law (18 U.S. Code § 1343), prosecutors have to prove that the defendant intended to commit fraud and that he or she used electronic communication to further that scheme. A conviction of internet fraud under the federal wire fraud statute is punishable by up to 20 years of imprisonment and a hefty fine.

Other criminal laws implicated in cyber crimes are identity theft statutes and credit card fraud (as they pertain to phishing schemes). 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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Bill Cosby’s criminal defense team filed a motion for a change of venue out of Montgomery County for his criminal trial stemming from a sexual assault charge. Cosby was charged with a 2004 drugging and sexual assault of a Temple University employee. His attorneys are claiming that the extensive media coverage has biased potential jurors in the area, and that Cosby will not receive a fair trial. In other words, they are saying that the media coverage has led to an atmosphere which is “likely to produce prejudice” at Cosby’s trial.

Cosby’s attorneys cite numerous local and national media publications which they allege have smeared their client. The filed motion also claims that Cosby was used as a “political pawn” in the contentious District Attorney race between former DA Bruce Castor and current DA Kevin Steele. Specifically, Steel ran a 30-second ad attacking his political rival Castor for failing to prosecute Cosby.

Cosby’s motion did not recommend a new venue, but attorney Brian McMonagle asked Common Pleas Judge Steven O’Neill to either grant the request or hold a hearing for the change of venue.  Cosby is scheduled to go to trial in June, with numerous issues still outstanding in the case.  However, multiple hearings are expected ahead of the trial.

What is a Motion for Change of Venue?

There are two basic requirements that must be met before a court can hear a case. The first is jurisdiction, which refers to a court’s authority to decide legal issues that affect the rights of the parties involved, and the second is which court is the best location to hear the case (where a case may be heard).

“Venue” in a criminal case is generally defined as the court that is assigned to hear the matter.  Defendants do not have the right to a county of his or her choice; venue usually relates to where the crime occurred. It is one’s constitutional right to receive a fair trial, although the ability to change a venue is not a constitutional right in itself. A defendant can request for a change of venue if there is a reasonable likelihood that he or she cannot receive a fair trial in the original venue.

Each jurisdiction has its own specific requirements for filing for a motion of change of venue.  These requirements can be referred to as the rules of civil procedure. See relevant civil procedure forms for California here. Continue reading

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Throughout his presidential campaign, Donald Trump has made clear that he wants to “build a wall” along the border of the U.S. and Mexico and that he wants to deport or incarcerate as many as 3 million undocumented immigrants who are criminals. As he works to implement his populist campaign, Trump will now have to contend with state and local officials in California who have resisted the federal government on immigration before and appear poised to do so again.

Top Democratic lawmakers in California are now preparing to enact legislation to protect undocumented immigrants from deportation. Some of the reforms within the legislation include providing free legal help to undocumented immigrants during deportation proceedings, offering more assistance in criminal court, and further limiting local law enforcement’s cooperation with federal immigration agents. The bills are predicted to pass, as both the chambers of California’s Legislature, as well as the governor’s office, are controlled by Democrats. Additionally the state is 40% Latino, the leaders of both chambers of the state legislature are Latino, and, the attorney general-designee, Xavier Becerra, is also Latino.

In the past, California has spent $33 million on legal assistance for immigrants. About 820,000 undocumented immigrants have been convicted of crimes, according to the Migration Policy Institute, a nonpartisan research group.

Federal Immigration Law

Immigration laws are a federal matter under the jurisdiction of the Department of Homeland Security. The agency under that department, is ICE, or Immigration and Customs Enforcement.  It is not specified in any federal statute exactly how immigration enforcement is supposed to happen, so the federal government has significant discretion to determine how immigration laws are carried out and who is targeted, given the limited resources they have (called prosecutorial discretion). In 2014 under the Obama administration, the Department of Homeland Security issued new enforcement guidelines focusing agents on immigrants who had serious criminal records or who illegally crossed the border after the start of 2014.

While it is certainly possible for one to be deported just by virtue of overstaying a VISA or entering the country illegally, your chances of being deported are much higher if you have committed a “deportable crime.” This includes:

  • Crimes of moral turpitude;
  • Aggravated felonies;
  • Firearms offenses
  • Sexual crimes;
  • Domestic Violence crimes.

IT does not matter how long you have lived in the U.S. or whether you have a dependent child who is a U.S. citizen. Likewise, it does not matter if you are a legal immigrant with a green card. Continue reading

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