Fighting for your freedom
Certified Criminal Law Specialist
Former Deputy District Attorney
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Expungement in California used to be limited to Penal Code Section 1203.4.  Under Penal Code Section 1203.4 an individual can petition the court to withdraw a guilty plea, a finding of guilt by a jury or court, and have the case dismissed.  The arrest remained on the record but the defendant/petitioner could lawfully say that he was never convicted of a crime.
Now, a big change in the law has occurred effective January 1, 2018.  If you have been acquitted, had your case dismissed after completing a program, or your case was never prosecuted you can ask the court to seal your arrest record.  That means that as long as no conviction has taken place you probably can successfully seek to have the fact you were arrested sealed from public view.  So, when an employer asks you if you have been arrested not only can you say “no”, the Department of Justice (DOJ) won’t report out that you were in fact arrested.
The legislation is found in Penal Code Section 851.91.  The great thing about this legislation is that if you qualify under its provisions it is a matter of right and the judge cannot refuse to grant the petition.  This is extremely important as the courts are often reluctant to or refuse to grant petitions under Penal Code section 851.8 (a declaration of factual innocence) even after an acquittal by jury.  When a jury finds someone not guilty it technically only means the case wasn’t proven beyond a reasonable doubt.  However, now when a not guilty is obtained the acquittal means that the arrest can be deemed never to have happened and the arrest record sealed from public view.
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A Defendant was accused of being a gang member and committing a murder for the benefit of the gang.  The District Attorney wanted the testimony from one of the Defendant’s fellow gang members.  This potential witness had seen the shooting and had crucial relevant testimony that was wanted by the District Attorney.  The witness refused to testify when he was subpoenaed into court.  He asserted his privilege against self incrimination, since he could have been accused of being a co-conspirator, and refused to testify.  The District Attorney sought to force him to testify by seeking and obtaining a grant of immunity under Penal Code section 1324.  
Penal Code section 1324 provides that the prosecutor can ask a judge to grant an order of immunity for a witness whose testimony is important to the prosecution as long as the grant of immunity doesn’t do more harm to the public than the good to society that is going to be obtained by having the testimony given by the witness.  A grant of immunity under these circumstances means that the prosecution cannot use the testimony the witness gives against him in any future prosecution.
In this case the judge granted the immunity order and ordered the witness to testify.  The witness looked at the judge and told him, “with all due respect, your honor I refuse to answer any questions”.  The judge ordered the witness jailed until he changed his mind.  The witness was led away in handcuffs and the trial proceeded with other witnesses.
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Thousands of small replica wooden bats are given out every year at major league baseball parks.  I got one at the Angels game I attended a few years ago.  If I’m driving in my car with that small wooden bat under the driver’s seat of my car is that illegal?  How could it be, unless the Angels are mass producing illegal weapons and giving them away to an unsuspecting public?
In the recent case of People v Baugh, decided on February 9, 2018, the First District Court of Appeal in California found that exactly such a bat constitutes a weapon and is illegal to possess under Penal Code Section 22210.  The California Supreme Court years ago in the Grubb case (63 Cal 2d 614) made it clear that if an item that had an innocent purpose and an illegal purpose and the prosecution could show that the defendant intended it to be used as a weapon it became illegal to possess it.  Mr. Baugh was caught with the small wooden bat where it was kept close at hand, within easy reach if needed as a weapon, and that it could be used as a weapon if he felt the need to use it.  Baugh testified that he didn’t intend to use the small wooden bat as a weapon but he wasn’t believed.  Often times modifications to the bat can be evidence of an intent to use it as a weapon.  Practically speaking, there wasn’t any good reason to have the bat at the ready in the car if it wasn’t for use as a weapon when called upon.
The lesson to be learned is that even innocent items can be found to be weapons and possession of them to be a violation of the law.  If you are going to possess something like a wooden bat you will need to be able to articulate a plausible and credible reason for it being in your car within easy reach.
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What happens when a defendant says he didn’t understand that his guilty plea would lead to his deportation?  Is it possible to withdraw the guilty plea when the defendant is no longer in custody on the basis that he didn’t understand the consequences of the guilty plea on his immigration status?
Penal Code section 1473.7 provides that a person who isn’t in custody can make a motion to vacate his plea of guilty based on a claim that he failed to understand that his plea could lead to deportation.  Penal Code section 1473.7 became the law in California on January 1, 2017.  It provided that a person can look back at old convictions and make this motion even though the conviction occurred before the law took effect.
The problem for most people in California is that almost every guilty plea requires a form be filled out and signed by the Defendant at the time of the plea where the Defendant acknowledges that his guilty plea can lead to deportation, exclusion from the United States and denial of naturalization.  In the recent case of People v Perez decided January 23, 2018 the Defendant claimed that he didn’t understand  that his guilty plea would lead to deportation.  Unfortunately for Mr. Perez, there was a plea form that told him that his guilty plea would lead to deportation just like almost all the guilty plea forms used in California.  Mr. Perez was provided an interpreter at the time of the plea who was required to accurately interpret the form for Mr. Perez at the time of his plea.  Therefore the Perez court held that his motion to vacate his guilty plea should be denied because the interpreter explained everything to him and he said he understood at the time he pled guilty.
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New Rule of Professional Conduct
RPC 5-110(D)
Defense attorneys used to argue all the time with the prosecutors about whether or not they were required to turn over exculpatory evidence (evidence pointing towards innocence) they, the prosecutors, didn’t deem “material”.  In other words, the prosecutor got to decide what would information would be turned over to the defense and what wouldn’t be turned over. If the prosecutor didn’t think it made a difference to the Defendant they were the ones who decided the defense doesn’t get it.  It was like asking the fox who was guarding the hen house if the hens needed protecting…of course the answer from the fox was …no, of course not, I’ll let you know when they’re in danger…Such was the state of the burden on the prosecutors until recently.
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I have tried at least fifty cases that included a police officer who is called by the District Attorney as a “gang expert”.  The gang expert always testifies that the crime committed by the accused was done for the benefit of his gang.  This testimony occurs even when the crime occurs far away from the accused’s home territory and is completely unrelated to anything related to his gang.  For example, I had a case where a Santa Ana gang member and his two friends broke into cars in Laguna Niguel after a night of drinking at a party in the South Orange County area.  No gang signs were left at the scene and no one would have known a gang member had committed the car burglaries.  Even so, the gang expert testified the burglaries benefited the gang because the members gained money from the crime.
This overstretching and tortured testimony is no longer going to be allowed by the courts.  Now in the recent case of People v Perez, decided December 18, 2017 the Court of Appeal reversed a conviction for a gang crime in a case where there just wasn’t any evidence to support the testimony that it was done for the benefit of the gang.  In Perez, the defendant was a validated gang member,, who fired a gun at a party.  The Court ruled in very strong language that ” Not every crime committed by a gang member is gang related…..merely belonging to a gang at the time of the commission of the charged conduct does not constitute substantial evidence to support an inference that sole actor specifically intended to promote, further, or assist any criminal conduct by gang members.”  The police gang expert had testified that any crime of violence enhanced the gang’s reputation by instilling fear in the community.  Finally, a court has ruled that despite the inherent prejudice against gang members and gang crime not every crime is gang related even when it’s committed by a known, validated, heavily tattooed gang member.
Now when I make the same objection I’ve made for years the judge will have to rule in my favor, even though he doesn’t want to.  The rule of law prevails, sometimes it just takes awhile.
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Under new legislation, youth 15 years of age and under must be provided a consultation with a lawyer before being interrogated and waiving their Miranda rights.  As we all know, the Miranda case held that if someone is in custody and being interrogated by the police they must be told that they have a right to an attorney before questioning and that they have a right to remain silent.  

Starting in 2018 under Senate Bill 395, youthful suspects who are 15 years old and under must be given an attorney prior to custodial interrogation by law enforcement.  The only exception to this new rule is for public safety.

If the Public Safety exception applies, the interrogation can go forward without an attorney consultation.  This exception is very limited.  The police officer must reasonably believe that the information given by the minor is necessary to protect life or property from an imminent threat of harm.  Plus, the questions can only be about the imminent threat and how to prevent harm from it.

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When the police stop your car and arrest you, can they search your car too?  Many times when someone is arrested they’re in their car driving down the road just before the contact with law enforcement.  The law states that when police impound a car they can conduct an inventory search of the car according to their standardized policy.  The police must have a standard practice that they use in every case and follow it  in order for the inventory search to be valid and result in evidence that can be used against you.  (This is how the United States Supreme Court ruled in Bertine, 470 US 367).  However, recently in the case of People v. Zabala, decided November 13, 2017, the Court of Appeal decided that a search that involved removing the dashboard console where methamphetamine was located violated the department’s policy on inventory searches since the policy only allowed an inventory search of places people normally put items of value.

 

The defendant wins and the evidence of methamphetamine is suppressed, right?  Wrong!!  The police can search a vehicle when there is suspicion based on seeing something in plain sight (United States Supreme Court in Gant 556 US 332).  In Zabala, there was a suspicious white powder found lawfully during the inventory search and the dashboard was loose making it look like it had been altered.  So based on the powder and the loose dashboard (both found legally) there was probable cause to believe that illegal substances would be found behind the console.  Therefore, even though it was an illegal inventory search and that’s what the police relied on to search at the time, the court decided that there was another reason to allow the search and the defendant loses!  The takeaway is that when it’s an illegal search the court can find a way to make it legal.

 

Your lawyer needs to know your case, the law and how to put the argument forward so not only the District Attorney sees it as correct, but the judge too.

 

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When someone gets invited into a home, can he be charged with burglary if he commits a crime in the house? To commit a residential burglary you have to enter a home with the intent to commit theft inside or a felony of some kind.  In the recent case of People v Garcia, decided on November 14, 2017, the court confirms that you can be convicted of a burglary even if you were invited into the house.

 

Mr. Garcia was invited to spend the night in his sister-in-law’s home.  While inside the home he went into the separate room of his 12 year old niece and committed sex crimes against her.  Mr. Garcia tried to defend himself against a burglary charge by saying “I was invited into the house so I couldn’t have committed a burglary!”  Not so, said the Court of Appeal.  If, as Mr. Garcia did, you enter into other rooms in the house where you don’t have consent to be, a burglary occurs as to each room you entered without consent.  In Mr. Garcia’s case he had permission to enter the house but not the young niece’s bedroom where the sex crimes occurred. Therefore he fulfilled the requirements of entering a room (the niece’s room) with the intent to commit a felony (sexual molestation).  The intricacies of the law are always changing and you need a lawyer who is constantly up to date.  Your freedom can depend on  it.  

 

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For years the law in California was use of a gun in the commission of a felony meant a State Prison sentence if convicted.  The consequences of gun use in commission of a crime went beyond just the fact that it made a State Prison sentence mandatory, it also meant that the credits a person earned in custody were limited.   In addition, for future crimes, the use of a gun meant that it was a violent felony.

Now, under Senate Bill 620 starting January 1, 2018, anyone charged with the enhancement of Penal Code Section 12022.5 or 12022.53  (use of a gun during a felony) may become probation eligible if the judge strikes the enhancement.  SB620 gives the judge, who is doing the sentencing, the option to strike the 12022.5 or 2022.53 enhancement if he or she feels it is appropriate in the interests of justice.

How this will be implemented is still unresolved.  If the Court strikes the enhancement pursuant to Penal Code section 1385(a) then it may be that the crime is no longer a violent felony leading to the possibility that the underlying crime isn’t even a strike.  However, if it is stricken only for purposes of sentencing, it may be that the conviction will still qualify as a strike and decrease the credit for time served.