Fighting for your freedom
Certified Criminal Law Specialist
Former Deputy District Attorney
Published on:

Can prosecutors strike minorities from a jury simply because of their race?

Since 1978 criminal attorneys in California have not been allowed to remove potential jurors from a jury simply because of their race. During voir dire, or jury selection, counsel on both sides have preemptory challenges and can remove jurors for basically any reason, from being too young, too old, too mean looking, you name it. But minorities are a protected class and a person can’t be excluded from a jury simply because of their racial profile.

But even with this so-called Batson/Wheeler protection, minorities have been getting kicked off of juries for decades. Attorneys who thought having a certain race on the jury panel would disadvantage their case would just kick them off and give other excuses, even if those excuses were flimsy. People v. Gutierrez, 2017 DJDAR 5100 (June 1, 2017), a new case from the California Supreme Court, has recently put some teeth back into Batson/Wheeler challenges.

Published on:

Restored Faith
My job, as a criminal defense attorney, is difficult.  The judges, by and large, are against me and my client.  The District Attorney is often unwilling to be sympathetic to the human side of my client’s actions.  The criminal justice system is harsh and devastating to many who enter it.  My friends question “How can you represent people accused of crimes?”  Like they don’t have me on speed dial.  But, this isn’t about how bad things can be for me in my professional life.  It’s about how good and rewarding what I do for a living is.
I’ve represented many, many people over my career who have gotten themselves into all kinds of trouble and have found that anyone can make a mistake in their life, rich or poor, young or old, class valedictorian or class clown. Anyone can start walking down the wrong path in life, and some of them just need a little bit of help to get back on track.  Some of them make the same mistakes more than once.  I give them all everything I have to defend them and restore their lives to them.  All too often I don’t know what happens to them after I finish their cases.
Published on:

On March 24, 2013, an off-duty Cathedral City police officer went to a restaurant to get dinner with a couple of friends. After the officer was seated he noticed a table with several tattooed men who kept staring at him menacingly. One of the men at the table, Mario Alberto Gonzalez, had a visible gang tattoo on the back of his neck. As the group of men left the diner Gonzalez made a hand sign of the “JT” gang and simulated a gun with his hand, which he pointed at the officer’s group.

Gonzalez was charged with five counts of making a criminal threat, one for each person at the officer’s table. Under California Penal Code Section 422 “any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out . . . shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.”

The question in this case was whether a hand gesture is a verbal statement under California Penal Code Section 422. The Supreme Court of California held that no, it is not. Even though the simulated gun was clearly intended to be a threat and the officers took it as a threat, more than a mere hand gesture is required to violate Penal Code Section 422.  There are many situations you can think of that would be hand gestures, like a throat slashing movement, that clearly are threatening but under Gonzalez you can’t be prosecuted under this code section for the conduct.  

Published on:

The short answer to the question of whether you are responsible to pay for restitution when you are involved in a car accident when you were NOT at fault is NO, you don’t have to pay.  It seems like common sense that if you did not cause the accident you shouldn’t have to pay for it.  The California Supreme Court addressed this issue in People v. Martinez.  In that case the defendant was driving a pickup truck when a 12 year old boy on a scooter failed to stop before darting out in front of him.  The pickup truck had no chance to stop before hitting the boy.  Even the boy’s mother agreed with these facts and that the driver was not at fault for hitting the boy.
In the Martinez case the driver stayed with the boy, waited with the boy’s mother until the ambulance arrived and the ambulance  drove off with the boy inside.  Then the driver left without giving his information to anyone because he was on felony probation and didn’t want to be identified.  The victim in this case was seriously injured with multiple fractures and traumatic brain injury.  The fact that the defendant essentially fled the scene of the accident (even though he stayed until help arrived, he didn’t give his information to anyone) didn’t change the court’s opinion that he didn’t need to pay for an accident that he didn’t cause.  Indeed, the California Supreme Court has said that even if the driver had been negligent and was at fault for the accident he would not be required to pay direct victim restitution.  The only way the defendant would be required to pay restitution would be if his criminal actions CAUSED additional injuries.  In other words if the driver had fled (a criminal act) and had NOT tried to give aid and had NOT stayed to make sure the ambulance arrived and his leaving CAUSED the boy additional medical problems then he would  be required to pay.  If the boy had suffered additional injuries due to the delay in getting medical help, for example, the defendant could be ordered to pay for those increased medical bills because those additional bills were a result of his delaying medical treatment.
This is an example of why knowing the intricacies of the law is so important and hiring an experienced criminal law attorney is so crucial.  The law in this area is somewhat complicated and can be confusing.  Hiring the best criminal defense lawyer is your best chance to avoid paying unnecessary restitution and for avoiding possible criminal charges.
Published on:

So you find yourself on probation after working out a plea bargain with the District Attorney.  Your lawyer and you have entered into a deal where you will spend 3 years on formal supervised probation.  What does this really mean to you though?  

Being on probation is when you are conditionally released back into the community instead of going to jail or prison for the maximum term possible for whatever crime you committed.  Let’s say you plead guilty to a crime that has a maximum possible sentence of 3 years in custody.  Instead of serving those 3 years in custody and being done with your obligations, you are put on put on probation.  You are released into the community but the possibility of doing the 3 years in custody hangs over you if you don’t meet all the obligations of being on probation.  

One common requirement of someone on probation is that the probationer not possess firearms or illegal drugs.  This seems pretty clear.  If you are on probation you shouldn’t have in your possession guns or illegal drugs.  However, recently in the case of People v Hall (2017 D.A.R. 1235 February 9, 2017) the question was does the probationer have to be in knowing possession.  

Published on:

We’ve all heard of it, but unless you need it you probably have no idea exactly how it works or how to get it. The idea behind bail is to prevent a defendant from running away after he or she has been arrested. The theory is that if someone puts up a large amount of money, he is not likely to walk away from it. The other reason to set bail is, danger to the community. The more serious the crime the higher the bail.

Recently there has been a move to change the structure of bail as some feel it discriminates against poor people. Although the bail amount is determined by the severity of the crime not the financial status of the person who committed it, clearly someone who is poor will have a harder time affording it than someone who is wealthy.

The amount of the bail is pre-set according to a bail schedule, based on the seriousness of the crime. The theory is that if someone posts a million dollars of bail money, he is likely to show up in court to protect his money. The more serious the crime, the more incentive a defendant might have to flee from punishment, so the higher the bail.

Published on:

A man walked down the narrow street. He saw a house being remodeled. There was no furniture in the house but there was obviously work being done on it. A “porta potty” was outside the house for the workmen to use. Lots of tools were in the garage; portable belt sander, air compressor, and a nail gun along with other items that could easily be sold. Temptation got the better of him. The man walked into the vacant house through an open unlocked door, where there were no plates, dishes, furniture, or anything else that would look like the house was inhabited.

The man stole the tools with the intent to sell them. While he was in the house the workmen came back and chased him away. Unfortunately for him he was arrested nearby still in possession of the stolen property. He was charged with burglary of an inhabited house and the enhancement that someone was home when the burglary occurred.

How could an obviously uninhabited house qualify as an inhabited dwelling house and just because the workmen come back why is the burglary all of a sudden a violent felony?

Published on:

In a criminal case, a defendant is entitled to a unanimous verdict by all the jurors selected to hear his case.  Many times if only one juror votes in a defendant’s favor it’s a win for the defense.  The prosecutor  may choose not to go to trial again and dismiss the case or will plea bargain the case in a way that benefits the defendant.  Many times when a jury is hung with the count overwhelmingly in favor of one side or the other (usually against the defendant) the judge and the DA will try to identify the holdout juror, isolate that juror, and remove the juror in order to get a resolution of the case.

That’s what happened recently in the case of People v Armstrong, a 2016 from the 4th District Court of Appeal.  The defendant was facing the death penalty and was in the penalty phase of the trial.  In other words, he was guilty, but now the jury had to decide whether to vote for death or life in prison without parole.  One juror was refusing to vote for death and became the “hold out” blocking a verdict.  The judge removed the juror from the case in light of the frustration expressed by the other jurors.  However, there wasn’t any showing that the juror wasn’t participating in deliberations.  In fact, the juror was deliberating but just disagreed with the other jurors’ conclusions. Removing the juror was found to be error and caused the court to reverse the death sentence.

The role of the defense lawyer when a jury appears to reach an impasse is critical.  A mistrial declared because a jury can’t reach a unanimous verdict is almost always a victory for the defendant.  Any time the prosecution can’t get a conviction in trial the defendant wins.  The defense attorney has to object at the right time and must seek a mistrial and a “do over” whenever possible.  If the defense lawyer is “asleep at the wheel” and doesn’t raise the objection at all or doesn’t raise the right one the defendant suffers.  Getting the right lawyer who stays on top of the case can make all the difference.  It can even determine life and death.  Whether it’s a death penalty case, like Mr. Armstrong’s, or one with a much lesser penalty every case needs the trial lawyer to stay strong, alert, and make the right moves.

Published on:

California Vehicle Code Section 2800.1 and 2800.2 make it illegal to flee or attempt to evade a police officer. The individual who flees from the police after the police turn on the overhead lights would seem to be in for trouble. What with helicopters, sophisticated radio communication, and everyone on social media instantly following the chase it would seem to be a hopeless proposition. In fact, fleeing from the police can result in a felony conviction punishable by up to 3 years in State Prison and a $10,000.00 fine. If someone is injured during the chase the punishment goes up to a possible 7 years in State Prison and again a $10,000.00 fine. If someone just simply refuses to stop and pull over it can be a misdemeanor.

In order to be guilty of a crime of felony evading a police officer the officer had to have an emergency light illuminated, a siren was sounding as necessary, the person is willfully attempting to evade and is driving in a willful or wanton disregard for the safety of persons or property. Ironically, all of the reckless and wanton driving can occur with lights flashing and siren wailing but if the prosecutor doesn’t do his or her job, a defendant can still be found not guilty. For one fortunate defendant in a recent case, a Mr. Byrd (People v Byrd, July 29, 2016, D.A.R. 7772), the strict requirements of proof worked to his advantage. The prosecutor in Mr. Byrd’s case failed to prove that the pursuing officers, not just one officer but both, were wearing distinctive uniforms as required by Vehicle Code Section 2800.1. That being said, Mr. Byrd’s conviction was overturned on appeal because the prosecutor did not prove the police were wearing their uniforms.

 

The apparent lesson to be learned is no matter how egregious the conduct, the prosecutor still has to prove all the elements of the crime and if they aren’t proven, there is hope for everyone charged with a crime.  Of course, you need to have a defense attorney who understands this and can capitalize on the mistakes of the prosecutor.

Published on:

I receive lots of inquiries about elder abuse from people who have read my previous blogs and visited my website. Most of the contacts are from folks who believe that their elderly relatives have been either physically or financially abused by strangers or relatives. Since I don’t practice any kind of law other than criminal defense I’m not able to help. If someone is accused of abusing an elder than I have the experience to assist in his or her defense. So, in an effort to assist those not accused of elder abuse I would advise the following to prevent being accused and to prevent the abuse in the first place.

Financial abuse is usually associated with the alleged misuse of monies and property owned by the elderly. If you are in a caretaker position it is vitally important to keep a careful accounting of all monies spent out of the elder’s accounts or from cash kept by the elder. With a clear and concise accounting of any money spent on behalf of the elder, the caretaker is going to be able to defend against the unwarranted accusation of misuse by the family, friends, or government agency who investigates. Failure to keep good financial records can lead to an inability to defend oneself effectively against claims of abuse.

When it comes to physical abuse, the caretaker usually gets into trouble when the elder suffers some physical setback. When family, friends, or the government examine a case for physical abuse it’s always looking in the “rear view mirror”. The accusations of “you should have done this or recognized that earlier” come cascading down on the caretaker regardless of validity. The elder is often difficult to manage physically and emotionally for the caretaker. The elderly don’t like to be told what they can and can’t do and to be required to be washed or moved when they don’t want to be moved. Sometimes there are physical limitations that come on gradually that lead the caretaker to be overwhelmed. The caretaker might fear loss of employment if the family is required to intervene or the senior moved out of the caretaker’s zone of responsibility.