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Fighting for your freedom
Certified Criminal Law Specialist
Former Deputy District Attorney
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If the state deports a key witness in your trial, your case could be dismissed. Two cases, People v Torres and People v Roldan, outline when this might happen.

In December 2006, the state charged Juan Roldan with the shooting of Saba Barrera. Roldan allegedly shot Barrera three times due to Barrera’s affiliation with a rival gang. In addition to this charge, the state also charged Roldan with the murder of two more rival gang members. In the time between Roldan’s arrest and the trial, the police also arrested Barrera for his gang affiliation, and he was later taken into custody by Immigration and Customs Enforcement (ICE). While Barrera was in a federal immigration hold, the prosecution collected his testimony at a preliminary hearing. After the preliminary hearing, Barrera was deported and was not able to testify at Roldan’s trial. The prosecution still used Roldan’s preliminary hearing testimony at the trial. Barrera’s testimony was the strongest piece of evidence at the trial. Without it, the jury may not have found Roldan guilty and he would not have been sentenced to life in prison without parole.

Roldan appealed his guilty verdict by challenging the fairness of the trial. As Barrera, the key witness for the prosecution, was not at the trial, Roldan’s defense attorney could not cross-exam the statements made by Barrera. The prosecution didn’t attempt to delay Barrera’s deportation thinking they could just use the prior testimony from the preliminary hearing. The failure to do anything to stop deportation of the key witness against him violated Roldan’s Constitutional Right to Confrontation, the ability to challenge any witness’ testimony. As a result, the Court of Appeals of California overturned Roldan’s conviction and granted him a new trial.

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Mr. Glover, a Kansan pickup truck owner, was driving when he passed a sheriff’s deputy. The deputy, who was randomly checking license plates, searched the plate of his truck. Upon his search, the deputy found that the state revoked the license from the registered owner of the truck. The sheriff, assuming Glover was driving, pulled the truck over, verified that the driver was Glover, and charged him with driving on a suspended license.  Glover did not accept the idea that he was lawfully stopped and detained.  Instead, he believed that the police had no right to stop.  The officer hadn’t witnessed him commit any violation of law.  The deputy only had a  “hunch” he was driving the truck.  After all, he hadn’t done anything that would satisfy the usual standard for probable cause to detain.  That is, something the officer saw that led him to believe that the driver had committed a crime.   Glover’s lawyers argued the misdemeanor case all the way to the US Supreme Court. On April 6, 2020, the United States Supreme Court ruled in favor of the State of Kansas and made law that the rest of the country is going to have to live with as well.  It is now legal for police to assume the driver of a car is also the registered owner.

Before the Glover decision, police needed reasonable evidence to confirm the identity of a driver they knew was driving without a valid license before making a traffic stop. If the identity of the driver wasn’t known to the police there had to be an articulable objective suspicion of criminality before a detention could occur.  No longer, it is now much easier for police to stop your car on the road and issue a traffic ticket.

Our founding fathers created the Fourth Amendment to the Constitution, the protection against unreasonable searches and seizures, to protect us from abuses of power by the government. For this reason, it is essential to continue to fight the idea that police can use this case to justify all traffic stops. This case must be limited to it’s facts.  Unfortunately, based on past experience I believe that law enforcement will use this case to justify many stops based on hunches and speculation.  If there isn’t  reasonable evidence to believe you have violated the law, a vehicle code violation or other grounds to pull you over and detain you, don’t give up on the idea that your right to be free from unreasonable searches and seizures no longer exists.

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Can a witness testify from the grave? Of course not, right? Well, it turns out that sometimes a deceased witness can testify in a court of law. As absurd as this sounds, the recent murder case of People v. Quintanilla dealt with this issue.

In this case, Quintanilla allegedly shot his girlfriend once killing her. A day after the shooting, the police visited Quintanilla’s house, where he was arrested. During his trial, the prosecutor brought many witnesses into court who spoke about Quintanilla’s relationship with the victim. Much of this testimony related past conversations with the victim before she was killed where she complained about his abuse.  Using this evidence, the jury found Quintanilla guilty of first-degree murder and he was sentenced to 50 years to life in prison.

The victim, Quintanilla’s now deceased girlfriend, made prior statements about her fear of Quintanilla that were used in court against him. This type of in-court testimony relating out of court prior statements is known as hearsay, evidence given by a witness about another person’s statements (Evid. Code, § 1200, subd. (a).) Hearsay is usually not allowed in courts because this testimony cannot be cross-examined. In Quintanilla’s case, the many witnesses that talked about his abusive relationship with the victim provided hearsay evidence because they provided statements made from someone, the deceased victim, who could not be cross-examined. There are rules, however, that sometimes allow hearsay statements. The prosecutors used a rule known as the forfeiture by wrongdoing.  This exception to the rule that hearsay statements are not allowed occurs when the defendant attempts to prevent a witness from testifying, sometimes by even killing the witness (Evid. Code, § 1390, subd. (a).) Under the forfeiture of wrongdoing rule, the prosecutors convinced the judge that Quintanilla killed his girlfriend, so she could not testify about his history of domestic violence. After the court found Quintanilla guilty, his lawyer on appeal successfully argued that there wasn’t enough evidence that Quintanilla killed his girlfriend in order to prevent her from testifying against him.  In order for the statements from the grave to come into evidence, under the forfeiture by wrongdoing theory, there must be sufficient evidence that the motive for the killing was to prevent the person who made the statement from testifying.  The prosecutor didn’t do that and as a result the statements of the girlfriend should not have been presented to the jury.   As a result, the California State Court of Appeals reversed the conviction against Mr. Quintanilla.  If he is to be convicted in his new trial it will have to be done without his girlfriend’s statements accusing him of abuse.

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The United States has surpassed every country in the amount of confirmed Coronavirus cases.  To make matters worse, public health official expect an infection total of 200 million in the United States by the end of this novel virus season.  With estimates as dismal as this, public health officials call for what might be the defining catchphrase of 2020, “social distancing.”  Not only does social distancing require a minimum of six feet clearance between people, it also requires individuals to self-quarantine.  For this reason, inmates in jails and prisons are among the few populations that are exceptionally vulnerable to rapid transmission of this virus.  Orange County Jail is no exception.

As the number of inmates testing positive increases, politicians, advocacy groups, and criminal justice officials debate a variety of safety measures for those who remain incarcerated.  In this debate, two possible solutions have arisen;  (1) release as many inmates as possible to avoid overcrowding; (2) keep inmates in jail while enhancing safety protocols.  An example of this early release program can be found in New Jersey where 1,000 inmates are expected to be released.  Since March 1, 202o  OC Jail has released almost 1000 inmates, with more inmates being released every day.  Additionally, the Attorney General, William Bar, requested a memorandum to divert individuals from the federal prison systems and into home confinement.  Nationwide, officials are discharging low-level offenders in an attempt to conform to social distancing guidelines and relieve the pressure on the jail population.

 

 

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What type of action warrants a punishment as severe as 45 years in jail? Of the many crimes that come to mind, I doubt you thought of a single punch. However, on January 3, 2020, the California Court of Appeals upheld the People v Palomar ruling, which sentenced a man to 45 years in jail for a single punch.

The facts of the case were mostly undisputed. The victim, who was intoxicated inside of a bar, expressed derogatory comments about the assailant’s female cousin. Once the assailant approached the intoxicated man, the man began to make racist remarks directed at the assailant. By the end of the night, the assailant, waiting for the drunk man to leave the bar, retaliated by sucker-punching the man only once. With one punch, the victim died by losing balance from the blow and hitting his head on a nearby curb.

While the assailant’s defense attorney argued for involuntary manslaughter, a crime with a significantly shorter prison sentence, the jury sided with the prosecutor’s argument that the assailant committed second degree murder. How did an act that seemed to be caused out of the heat of the moment become second degree murder? The answer relies on the doctrine of implied malice. For second degree murder, there must be apparent malice aforethought. Malice is defined in two ways, expressed and implied. Expressed malice reflects our conventional conception of murder, i.e., “when a defendant manifests a deliberate intention to take away the life of a fellow creature.” (Cravens, supra, 53 Cal.4th at p. 507.) Alternatively, implied malice requires a physical component, “the performance of ‘an act, the natural consequences of which are dangerous to life,” and a mental component, “the requirement that the defendant ‘knows that his conduct endangers the life of another and . . . acts with a conscious disregard for life.” (Id. At p. 508.)

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Recently, I was one of the first attorneys to have a client granted Mental Health Diversion

pursuant to Penal Code Section 1000.36. The catch to getting such a motion granted is to put

together a treatment plan that convinces the judge that the defendant can successfully

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Under new legislation effective January 1, 2019, you could be eligible for diversion under Penal Code Section 1001.36.  This new law allows those who suffer from a mental condition, such as bipolar or schizophrenia, when that mental disorder played a significant role in the commission of the charged offense, to apply to have their cases diverted out of the criminal courts.  The defendant would have to be able to respond to mental health treatment, not pose an unreasonable risk to public safety and agree to comply with the terms of the treatment plan.  The diversion process could take up to two years to complete.  However, at the successful end of the two year process the case would be dismissed without ever pleading guilty or going to trial first.
This landmark legislation recognizes the impact that mental illness has in the community and that crimes committed which are caused by the mentally ill should be treated differently than those committed by people with evil intent.
The diversion petition is so new that how the courts and prosecutors will accept it remains to be seen.  But, it’s a hopeful sign that the criminal justice system is adding a little more humanity and justice into the mix.  Cases such as these are difficult, complex, and require sophistication in their representation.  I’ve been a Certified Specialist In Criminal Law since 1991 and handled many cases involving these mental health issues.  Call me if you have a loved one who suffers from a mental health condition that has landed him or her in the criminal justice system.  I can help.
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If you’re charged with a misdemeanor crime in Orange County you may be eligible for a program that is currently being utilized by the Orange County District Attorney’s Office.  This program is the Deferred Entry Of Judgement Program or DEJ.  Not all misdemeanors are eligible but if yours is, or your attorney can convince the District Attorney’s Office that yours should be, you can have your case eventually dismissed.
The DEJ Program requires that you plead guilty with a continuance of your sentencing while you submit to a DNA test, are fingerprinted, photographed, complete a one or two day life skills class and not get arrested for 90 days.  Your DNA sample does go into the “system” and can be used against you if your DNA ends up at a crime scene in the future.  However, if you do all of the above you can withdraw your guilty plea and have your case dismissed 90 days after your plea is entered.  Of course, if you do get arrested in the 90 day window or fail to do the class or not live up to your end of the bargain, your conviction would remain and you would be sentenced.
While this program is in existence, and there’s no guarantee it will continue, it is a great option to keep a conviction off your record.
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The internet is a powerful tool.  It allows us to instantly look up the score of a game, figure out who was the 14th president of the US  and find out how many miles away mars is.  But is everything on the internet to be relied on?  What if  a police officer pulls a motorist over. The driver is asked to get out of the car.  The officer says, “May I search you?”  The driver answers, ” Of course officer.”  During the search the officer finds numerous different pills in the driver’s pockets.  He suspects the pills are controlled substances and decides to arrest the driver.  When the case comes to court, can the prosecution expert rely on the internet to identify the pills as illegal?  Doesn’t the crime lab have to do it’s scientific analysis?  What can the prosecution expert rely on in stating his opinion?
You would think that under the rule stated in People v Sanchez (2016) 63 Cal. 4th 665, a very important California Supreme Court case, which basically held that experts can’t use testimonial hearsay in trial as the basis of their opinions, the internet couldn’t be used as the basis of their opinions.  This issue would come up routinely in gang prosecutions where the police expert would testify that one of the bases of his opinion that a defendant was a gangster was interviews with other police officers in prior contacts with law enforcement.  The court said that those prior statements were testimonial hearsay and couldn’t be used in court against the defendant.  Well, if that’s the case, obviously statements on the internet are something that can’t be quoted…right?  Wrong.
Recently in People v Espinosa 2018 D.A. R. 4531 decided May 14, 2018, the 2nd District Court of Appeal ruled that an expert called by the prosecution could rely on Ident-A-Drug to presumptively identify the pills found in the above driver’s pockets as illegal.  Ident-A-Drug is an internet drug reference compilation that is used by law enforcement and others to look at the pills pictured and compare them to the drugs found.  Evidence Code section 1340 basically is how the hearsay objection was defeated.  Evidence Code section 1340 says that if the compilation is “generally used and relied upon as accurate in the course of business” it’s admissible.
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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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