Articles Tagged with criminal defense

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

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

It has been reported that two men, Jon Ritzheimer and Ryane Payne, involved in the occupation of Malheur Wildlife Refuge in Oregon, have violated 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

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

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

It has been reported throughout the years that minor drug offenders or registered marijuana businesses were being targeted by police, but now, it seems that marijuana attorneys who represent those in the marijuana businesses are now coming under fire from law enforcement.  Last month, attorney Jessica McElfresh, an experienced attorney in cannabis law, had her hearing in San Diego district court. She is facing multiple felony charges for allegedly hiding hash oil from city inspectors on behalf of her client, James Slatic.

Back in May, D.A. Bonnie Dumanis filed a slew of criminal charges, alleging that Slatic and his business partners were illegally manufacturing and selling hash oil across the country.  Specifically, McElfresh is accused of hiding the evidence from city inspectors during an April 2015 inspection of her client’s facilities in Kearny Mesa.

However, what most attorneys are concerned about is arguably the most sacred right in the legal profession – attorney-client privilege. Prosecutors want access to all of her records, not just the ones pertaining to the charges McElfresh is fighting. There is a particular email in question that prosecutors are using to accuses McElfresh of conspiring with her client. However, McElfresh has counseled hundreds of clients, and now those records are in front of prosecutors.

The Ethics of Marijuana Law

It has long been debated whether an attorney can take on a client in the medical cannabis business. While recreational marijuana will soon be legalized in California, it is still a Schedule I drug under the federal Substances Control Act punishable by jail time. A June 2015 ethics opinion from the Bar Association of San Francisco (Opinion 2015-1) has concluded that representation of such businesses is legal if the lawyer advises clients to adhere to state regs and discourages illegal conduct. For example, aiding a client through a business permitting process is lawful representation that does not breach ethics rules.

Attorney Client Privilege

Every state bar has a rule that protects attorney-client privilege. In California, ABA Rule 3-100 specifies that conversations and information given by a client as it pertains to professional legal advice are protected as “confidential” and inadmissible in court. However, that same rule also specifies that a lawyer’s communications with a client are fair game if they were made with the intent of committing or covering up a crime. In the scenario above, the judge claims that McElfresh’s communication(s) fall under this narrow exception. Continue reading

A video that has made its way through social media of a San Diego police canine biting an unarmed man in handcuffs has caused outrage. The footage, posted by Facebook user Angel Nuñez, shows the dog latched on to the man’s arm for at least 30 seconds while one officer works to unlatch the animal’s jaw. However, two additional cops were holding the man who was being bitten. The victim could be seen screaming as he was being bitten.

The man was eventually arrested on suspicion of charges that include robbery, battery, and being under the influence of drugs. San Diego police claim that the use of the dog adhered to the department’s policy.

When Does a Dog Bite in California Reach Criminal Status?

California has strict dog bite laws that have huge consequences and liability for the owners of dogs that bite. By statute, the state is a strict liability state, meaning the owner of a dog strictly is liable for any dog bite from the moment that ownership begins—with some narrow exceptions, such as when the dog is provoked. See CA Civ. Code § 3342. This means that the owner of a “dangerous dog” can be sued for civil damages from the dog bite victim.

However, what most people do not know is that criminal charges can be filed as a consequence of a dog biting someone, in addition to a civil lawsuit. Specifically, California dog bites may fall under the category of criminal if the dog falls under the state’s legal definition of “dangerous” or “vicious.” California law defines a “dangerous” dog as one that has bitten someone without being provoked, killed or injured another animal at least twice within a three year period, or has acted aggressively towards a person (causing that person to defend him or herself) at least twice within a three-year period. Dogs that are owned by someone with a conviction of a dog-fighting charge may also be considered vicious.

Dangerous dogs that were not reasonably restrained that kill someone may cause their owners to face felony criminal charges. You may face a misdemeanor criminal offense if your dog was not reasonably restrained and it injured someone.

In sum, police can still charge you with criminal charges if your dog bites, injures, or kills someone. These criminal charges range from criminal negligence to second degree murder. Under state, county, and city laws, dog owners can still go to jail for having a dog that bites someone. Continue reading

A graduate student at Cal State San Marcos accused of rape has filed a federal lawsuit, alleging the university violated his rights to due process through an unfair investigation. The student, who is not identified by name in the suit, was attending a study abroad program in Germany in 2016.  Last October, he learned that a fellow student in the program had accused him of rape. However, no criminal charges were ever filed even though the university launched its own investigation.

His degree and transcripts were placed on hold once the investigation started. Allegedly, the school did not provide him with the report or his accuser’s statements or other documents. He was found guilty by the university of sexual misconduct in March. The lawsuit now argues that by withholding his academic credentials, without giving him the chance to defend himself, the university breached his constitutional rights to due process under the fifth and fourteenth amendments. In other words, he is alleging that his procedural due process has been violated because the school’s ‘procedure’ denied him access to anything regarding the accusations against him.

Officials for Cal State San Marcos pointed to the university’s policies under Title IX, which forbid discrimination in education. This means the school must create and sustain an educational environment free of sexual violence and misconduct.

This is not the first time that universities in California have come under controversy for their handling of sexual assault allegations. Back in 2015, a California court ruled that the University of California, San Diego (UCSD) acted improperly while adjudicating a sexual assault case, noting that the student was not allowed to findings of the university or cross-examine his accuser. Also in 2015, San Diego State University reversed the suspension of a male student after finding allegations of sexual misconduct against him were unsubstantiated, and he sued the school.

Due Process in Schools

Students facing possible suspension or expulsion from public colleges and universities are entitled to due process protections because their liberty and property are at stake, and because public schools take money from the state, making them state (government) actors, to an extent, in a disciplinary proceeding. This means at an absolute minimum, students in campus disciplinary cases are entitled to have notice of the charges against them, an explanation of the evidence against them, and an opportunity to defend themselves in the process, such as hearings.  See Goss v. Lopez, U.S. Supreme Court (1975).

When a school denies you your right to due process, this can be used as a defense to a suspension or expulsion decision. Continue reading

Earlier this month the criminal trial of Jacob Paul Skorniak, 51, started in San Diego Superior Court. Skorniak is accused of kidnapping and raping a 21-year-old German exchange student he met in Pacific Beach during New Year’s celebrations. He is also accused of using a knife to attack the victim. Skorniak has testified that it was consensual, but the young woman, who has since returned to Germany, has chosen not to return to San Diego to testify at the trial. She was reportedly initially cooperating with the prosecution. Even without victim testimony, the jury ultimately found Skorniak guilty of the charges of rape, kidnapping with intent to commit rape, and sexual penetration of an unconscious person.

In his case, Skorniak actually recorded the crime he committed and it was played for the jury. The victim also inadvertently dialed her cell phone during the assault and her parents answered in Germany. Her father testified that he screamed into the phone until the line went dead.

Everyone knows that being accused of rape is a serious matter. While there may be legal defenses in a situation, we will seek to explain the type of evidence that typically goes into a rape trial.

What if There is No Victim Testimony?

Usually, the most compelling evidence at a rape trial is the testimony of the victim. There is no law mandating that victims of sex crimes have to testify. Prosecutors may still decide to prosecute even without the victim’s testimony if there is other evidence that makes them think they have a case. They will also consider witness testimony as evidence to bring to trial.

What Kind of Evidence is used in Rape Cases?

Statistically speaking, the vast majority of rapes are committed by persons known to the victim.  Therefore, the identity of the person is usually known. However, prosecutors also have to rely on other evidence to prove that the accused committed the crime beyond a reasonable doubt. This includes physical and forensic evidence, such as bruises and cuts on the victim, torn clothing, and DNA evidence or other witness evidence. Continue reading