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.
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.
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.
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.