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Articles Posted in Current Events

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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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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.