Articles Posted in Current Events

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Here is the scenario: Bob is fishing at Lake X. Sally is swimming and seems to be struggling and then disappears beneath the water. Does Bob, who is an excellent swimmer, have a duty to help save Sally?

In a word, NO. Legally, he has no duty or obligation to help Sally or anyone else he sees in trouble. It may be shocking to think there is no duty to help but that is the law. Bob can film the drowning and air it on Facebook and he is still protected.  It is simply not a crime NOT to help.

Morally you could argue that Bob has a duty to help but that is between Bob and his conscience. Legally, he has no requirement to help. BUT, if Bob does decide to render aid, most states, including California, have Good Samaritan laws to protect Bob. California Health and Safety Code Section 1799.102 says, “No person who in good faith, and not for compensation, renders emergency medical or nonmedical care at the scene of an emergency shall be liable for any civil damages resulting from any act or omission.”   This law was designed to protect the do-gooder from any unintended consequences of his actions. Let’s say Bob does swim over to Sally with the intention of bringing her to shore and prevent a drowning. Given the limitations of the situation and what Bob sees, that is reasonable under the circumstances. If Sally suffers additional problems because of Bob’s actions, (for example, he dislocates her shoulder in trying to lift her out of the water), he is protected from any future lawsuit based on his actions. As long as Bob acted reasonably in trying to save the victim’s life he is protected by the Good Samaritan laws. Without those laws everyone would be afraid to render aid, lest their actions be deemed harmful rather than helpful.

 

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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.  

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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.
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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.  

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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.

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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.

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I have had many clients come to me and say, either jokingly or for real, can’t I pay someone to “take care of this?” I always laughingly say, “This isn’t Chicago with Al Capone and gangsters running the courts”. Apparently, I was wrong. At least 600 cases involving traffic citations, DUI arrests, and other assorted cases being “fixed” are being investigated in the Orange County court system.

Many defendants in Orange County are being called into court to explain how their cases were either dismissed, fines suspended, charges reduced, or otherwise resolved all without anyone actually appearing on their matters. The answer appears to be that a clerk in a supervisorial position in the Orange County court entered into the record fraudulent transactions resolving the cases in return for lots of money.

From many defendants’ point of view the idea of paying someone to handle their case is in line with their cultural beliefs. Many in our community have recently immigrated from countries where paying money to government officials to resolve their matters without going to court is a way of life. Coming to the United States and continuing that practice is not something that is seen as criminal but is a normal manner of dealing with the government. A large segment of the community is not educated in the law and as long as they don’t have to go to court and face a judge, paying more than would be required to a third party is a small price to pay.

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Who-Says-Crime-Doesnt-Pay1.jpgRené “Boxer” Enriquez was a high level Mexican Mafia crime figure. His life was based on intimidation, murder, drug sales and evil. Boxer was a made member of the Mexican Mafia. What’s a made member you ask? It’s somebody who has killed for the Mexican Mafia and is such a trusted comrade that he proudly wears the black hand tattoo.

Sentenced to life in prison for murder and other crimes which he committed on behalf of the Mexican Mafia, he never expected to see the light of day. However, after numerous attempts on his life by other Mexican Mafia gang members, he left Pelican Bay in a helicopter escorted by the FBI and other law-enforcement agents.

What was his destination? It was a new life as a consultant on the government payroll earning thousands of dollars as an informant and an expert witness against his former brothers in the Mexican Mafia. All this while in protective custody housed in a federal prison for a California life sentence. He now writes books, lectures college students and even attends benefit lunches escorted by law-enforcement. In his spare time he testifies as an expert witness for the government in a variety of prosecutions.

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Wyoming-Prison.jpgRecently an inmate in Wyoming was released after serving 24 years in prison for a crime he did not commit. Many states recognize the injustice suffered by the wrongfully imprisoned and require the state compensate the victim. When our system of justice fails it can have disastrous consequences for those victimized. The criminal justice system is not infallible, and when it makes a mistake that costs a person most of his adult life there is a method of providing monetary compensation.

In Wyoming the State Legislature decides if the innocent is worthy of compensation and how much. In this case, Mr. Andrew “A.J.” Johnson had a criminal record prior to his being incarcerated for 24 years for a crime he did not commit. You might think that spending 24 years in prison is worth some kind of compensation. You might think that 24 years of your life spent wasting away in a prison cell, when you are innocent of the crime charged, would be worthy of some type of compensation by those who wrongfully took your freedom and liberty away. In Wyoming, you would be wrong.

You see, Mr. Johnson had a criminal record prior to his being wrongfully accused and convicted and put away. He had a record for theft and burglary. In Wyoming that means the legislature does not feel it necessary to compensate him for the 24 years spent in prison. In fact, Mr. Johnson was awarded nothing. He was given no compensation for losing most of his life to a criminal justice system that failed him.

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OC-District-Attorneys-Office-Accused-of-Violating-Constitutional-Rights.jpgRecently the Orange County Public Defender’s Office filed a 500 page brief with the Orange County Superior Court alleging that their client, Scott Dekraai, had his Constitutional Rights violated by intentional misconduct by the Orange County District Attorney’s Office. In essence, among other claims, the OCPD says that prosecutor’s office sent a police informant into the jail AFTER Dekraai was represented by an attorney. Dekraai then made incriminating statements to the informant which were recorded on a hidden recording device. All of this conduct by the OCDA was accomplished with the covert assistance of the Orange County Sheriff’s Department.

Who is Scott Dekraai? Well, he’s the defendant who is charged with murdering 8 people in the biggest mass murder case in Orange County history. In such a heinous case, many would say, who cares? Who cares if law enforcement is covertly recording statements he makes to a police informant.

Well, the United States Constitution cares. That sacred document that spells out all of our rights as citizens and members of a free society, is not just a piece of paper that applies only to those who are sympathetic. The United States Supreme Court ruled in 1964 in Massiah v. U.S. 377 US 201, that after an accused is represented by an attorney, law enforcement cannot interview or get statements out of him out of the presence of his lawyer. The OCDA knows this long standing rule of law yet apparently chose to ignore it in the pursuit of a conviction.