Articles Tagged with San Diego criminal defense attorney

As a practitioner in the criminal law field, it is part of my job to keep updated on new case law that will affect my clients.  This blog will seek to explain to you the latest development in criminal case law—coming from our highest court—the Supreme Court.  The Supreme Court has had no shortage of criminal law cases.  This year for example, they have already ruled in Rodrigo v. U.S. that police cannot stop motorists longer than necessary at traffic stops. And recently, in Johnson v. U.S., it ruled that catch-all phrase in the Armed Career Criminal Act defining what crimes make a defendant eligible for a longer prison term was “too vague.”

In this case, Samuel Johnson plead guilty to a federal weapons charge in 2012 (firearms possession).  He was sentenced to 15 years in prison—5 more than he would have gotten because he had prior convictions.  The Armed Career Criminal Act, which is a federal law that has jurisdiction over all states, has a clause that treats past convictions as violent felonies, even if no violence occurred.  If an offender has 3 prior convictions, the fourth automatically generates a 15-year prison sentence.

The Act lists burglary, arson, extortion, and use of explosives as specific categories or prior crimes that can lengthen one’s sentence.  The Supreme Court, in a 6 to 3 majority, held that specific clause of the law unconstitutional.

How Does This Ruling Affect Me?

One of the reasons Armed Career Criminal Act clause was held unconstitutional was because different states may have different laws on prior offenses.  Courts across the country have differed on what crime should be included in sentence lengthening, leading to inconsistent results.  Faced with such uncertainty, defendants often take prosecutors’ plea deals rather than risk the federal statute’s 15-year sentence.

Thanks to this ruling, if you have prior federal convictions (depending on what they are), they will no longer make you eligible for a longer, 15-year sentence.  However, it should still be noted that California has a very tough “3 strikes” law that has a long list of crimes that will make you eligible for life in prison if you are convicted 3 times of certain violent crimes.  In that respect, our state’s 3 strikes law is much tougher than the Armed Career Criminal Act.  It applies to state charges instead of federal charges.

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As Baltimore becomes the latest casualty of events transpiring from police brutality, another Justice Department investigation is underway for the multitude of constitutional rights Freddie Gray may have suffered at the hands of police.  Most people don’t think of criminal law as being fundamentally intertwined with our basic constitutional rights, or even as a ‘subsect’ of constitutional law.  The purpose of this post is to break down which fundamental constitutional rights have significant implications for the rights of criminal defendants.

The Constitution

Most of the constitutional principles cited by criminal defense attorneys come from the first 10 amendments in the Constitution (aka the Bill of rights).  Because the Constitution only applies to government actors, only those acting on behalf of the government (ie. police) can be liable for violating constitutional rights.

  • The 1st Amendment guarantees the free exercise of religion, speech, press, the right to peaceably assemble (ie. protest) or the petitioning for a governmental redress of grievances.  This amendment has made its way into the spotlight again because more and more people are being arrested for civil disobedience, filming police, or participating in protests- all protected 1st Amendment activities.  Violations of 1st Amendment give a right of action to sue the state actor for civil damages.
  • The 4th Amendment prohibits “unreasonable search and seizures” and “government intrusion into their persons,” whether through police stops of citizens on the street, arrests, or searches of cars during traffic stops.  The right applies any time you are stopped, pulled over, arrested, detained, or in the safety of your home.  Evidence seized in violation of the 4th Amendment is unlawful, and cannot be used against you in court.
  • The 5th Amendment protects you against self-incrimination, which is where the Miranda right, or right to remain silent stems from.  This means that whenever you are taken into custody, you do not have to say anything to the police, and can ask for a lawyer.  Voluntary statements are statements that will be used against you, so it is best to not say anything.  Statements that have been taken in violation of the 5th Amendment (ie. a coerced confession) are also inadmissible against you in court. The 5th Amendment also protects you from “double jeopardy,” meaning you may not be put on trial more than once for the same offense.
  • The 6th Amendment gives you multiple rights: the right to confront a witness (meaning you may confront the person accusing you of a crime), the right to be notified of the charges against you, the right to a public trial in a criminal case, the right to be evaluated by a jury of your peers, and the right to a ‘speedy’ trial.  However, it does not specify exact time limits.  Thus, judges decide on a case-by-case basis whether a defendant’s trial has been so delayed that the case should be thrown out.  The 6th Amendment also gives you one of the most famous rights: the right to be issued an attorney in a criminal trial, if you cannot afford one.
  • The 14th Amendment prohibits states from violating an individual’s rights of due process and equal protection.  This means that legal proceedings must be fair, following the formal processes, and that defendants are not treated differently based on race, gender, or religion.  This is the most heavily litigated portion of criminal law, as racial profiling has been shown to be rampant amongst most police forces, including San Diego.

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The State of Washington was the first state in the nation to pass the ‘no-nonsense’ 3 strikes policy to address repeat, criminal offenders in 1993.  California enacted its 3 strikes law shortly after Washington in 1994.  These “habitual offender laws” are statutes adopted by individual state legislatures to impose harsher sentences on those who have committed three or more felonies.  In most states including California, this means a life sentence without the possibility of parole on the 3rd strike.

Since 1993, 28 states have passed that same policy (Arkansas, California, Colorado, Connecticut, Florida, Georgia, Indiana, Kansas, Louisiana, Maryland, Massachusetts, Montana, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, North Dakota, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Vermont, Virginia, Washington, and Wisconsin), with Massachusetts being the latest state to adopt a 3 strikes law in 2012.

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On Tuesday, April 21, the U.S. Marshals Service announced they would be reviewing a video that shows a deputy U.S. Marshall in South Gate, California charging at a woman who was filming them at a crime scene, grabbing her phone, smashing it onto the curb, and then subsequently kicking her belongings (you can view the 53-second video here).  Unbeknownst to the U.S. Marshals, someone else was quietly filming the woman doing the filming, and posted their video capturing the incident online. While the caption originally tagged the South Gate Police Department, it has been confirmed that the ‘officers’ involved in the video were U.S. Marshals, and the incident is now being “investigated.”  In an interview with the Los Angeles Times, Beatriz Paez, 34, said she feared for her life during the confrontation.  According to her attorney, the phone’s screen is shattered and doesn’t work, but they will be trying to recover Paez’s video from the phone’s chip.

Constitutional Violations

I have blogged about the constitutionality and the right to record police before, but today, I am going to discuss the potential civil rights violations that may have occurred in the aforementioned incident to further drive in my point that those exercising their constitutional rights are not doing anything illegal or wrong.  By now, it should be obvious to most of you that constitutional law and criminal law are inter related, and have huge implications for those who have been subject to criminal charges and/or actions by police.  Because of 1st amendment protections of free speech and 4th amendment protections against unlawful search and seizure and undue force, there should be no situation where an officer can intentionally grab and destroy a camera being used to lawfully record law enforcement in a public place, especially when the filmer was not impeding on police activities.

In California, like every state, it is illegal to possess, distribute, and transport illegal substances that are listed on the Controlled Substances Schedule. These substances include heroin, marijuana, peyote, hash, cocaine, methamphetamine, “magic mushrooms,” and prescription drugs such as Oxycontin (aka “oxy”), Vicodin (Hydrocodone), and stimulants.

All drug possession crimes in California are classified as infractions, misdemeanors, “wobblers” (meaning they can be a misdemeanor or felony), or felonies.  There are 4 types of charges:

  • Simple possession;

As if the recent current events surrounding Eric Garner and Michael Brown were not enough, this month saw two more high profile cases detailing police misconduct and brutality which made national news.  In South Carolina, the tasering and shooting of Walter Scott occurred as he was running away from the police was shot on a cell phone by a bystander named Feidin Santana.  In our own San Diego, a local NBC affiliate chopper captured the brutal beating of Francis Pusok in the desert.  Both instances would not have come to light had a third party not captured it with a camera.

As the public’s trust in police dwindles, citizens are taking matters into their own hands by increasing their use of cellphone recordings as a means to advance some accountability.  As police begin to feel more uneasy about this increased use of cell phone and camera recordings, many citizens are finding themselves in hot water for recording their own interactions with police, or police interactions with another third party.  This is not the first time the issue of a citizen’s right to record police has come up, and it certainly will not be the last.

What Does the U.S. Constitution Say About Recording Police?

On Friday, April 3rd, 28 year old San Diego man Kevin Bollaert was convicted in the San Diego Superior Court and sentenced to 18 years for 27 counts of identity theft and extortion via California’s newly enacted revenge porn law.  Additionally, he was ordered to pay $10,000 in restitution.  Although Bollaert is not the first to be convicted under California’s new law, his steep sentence is unprecedented.   Specifically, Bollaert ran a revenge porn website (called Yougotposted) which allowed vengeful ex-husbands and boyfriends to post nude photos of their ex-girlfriends and link them to the women’s personal social media accounts.  Bollaert, a Web developer, posted the pictures and then charged women from $300 to $350 to have the pictures removed.  Prosecutors alleged that over 10,000 photos from California and other states were posted on Bollaert’s website between Dec. 2, 2012, and Sept. 17, 2013.

Bollaert faced a maximum of 20 years.  In explaining his punishment, the judge noted that he stacked the sentencing terms based on the multiple victims.  The hearing took all day, and eight women testified on how they were damaged by Bollaert’s actions.  This was the first case of its type in the country, and California was the first state to prosecute someone for posting humiliating pictures online.  Above all else, this case is more about online harassment, threats, and extortion.

New Legislation

Well, the answer is everything.  Courts and the public opinion are increasingly viewing the family pet and other companion animals as family members, and the legal trend of covering pets in domestic violence (DV) protective orders are expected to increase.  This trend responds to the evidence that 71% of women entering the shelter system have reported that their abusers injured, killed, or threatened to injure the family pet as a revenge mechanism.  It has also been irrefutably proven that there is a link between domestic violence, child abuse, and animal abuse.  Even if you know you would never hurt an animal, the stigma of these facts are likely to subconsciously affect a law enforcement official’s perception of you if you have been accused of domestic violence.

California Domestic Violence Law vs. Animal Cruelty

Under California law, police are nearly always required to arrest any man or woman accused of spousal abuse or domestic violence—whether or not the suspect is guilty.  The victim may then thereafter file for a protective order (also called a “restraining order”) to keep someone from contacting, calling, harassing or touching them.  In addition, California law explicitly covers the family pet in restraining orders in cases of domestic violence.  See CA FAM § 6320 – 6327.  Specifically, the statute states that:

Recently, two civil rights groups (the San Francisco branch of the Council on American-Islamic Relations and the Asian Law Caucus) filed a federal lawsuit against the San Francisco Police Department alleging that a police inspector not only violated department rules and city law whilst working with the FBI’s Joint Terrorism Task Force, but the SFPD also failed to report it. The two groups, which represent Arab, Middle Eastern, Muslim and South Asian communities, specifically claim that Sgt. Inspector Gavin McEachern violated software engineer Sarmad Gilani’s civil rights back in July 2014.  In that instance, the FBI’s Counterterrorism unit approached the plaintiff’s workplace at Google and asked him a handful of questions regarding his travel plans, personal blog, and political expressions on social media.  None of those questions actually had anything to do with a criminal investigation, because Sarmad Gilani had not committed a crime.

The groups are specifically concerned over the violations of Gilani’s privacy guaranteed by Article 1, Section 1 of the California Constitution, as well as the laws and policies of the City and County of San Francisco and, as applicable to the police department, that department’s policies and procedures.  They also filed a federal Freedom of Information Act request on Gilani’s behalf to obtain discovery over the subsequent travel issues Gilani had due to the investigation(s) on him.

The Use of the Federal Freedom of Information Act (FOIA) for Criminal Cases

In the beginning of this month, a group of 15 young people from Lincoln Park, San Diego, who were alleged to be part of the notorious Lincoln Park gang, were charged with criminal conspiracy related to two dozen local shootings within San Diego County.  The San Diego County District Attorney’s Office (“DA”) charged the group for nine different gang-related shootings under CA Penal Code 182.5.  One of the defendants, Aaron Harvey, 26, was arrested for murder, but maintains that he is innocent.  Specifically, he was not involved in the shootings, but in this case the DA’s office claims that Harvey promoted the crimes by posting gang-related affiliations and threats on social media pages, and benefited from the ‘crime’ by gaining “street credibility.”  Another defendant, local rapper “Tiny Doo,” whose lyrics reflect gang activity, is headed to trial.

As of now, five of the 15 defendants had their charges dropped at a hearing.  There is still some confusion as to why the charges were dismissed for some defendants but not others and whether the judge can still dismiss charges for the remaining defendants.  Harvey, who has no prior criminal conviction, now faces life in prison.  He still maintains he is not part of a gang.

What is Criminal Conspiracy?