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Articles Posted in Current Events

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New Rule of Professional Conduct
RPC 5-110(D)
Defense attorneys used to argue all the time with the prosecutors about whether or not they were required to turn over exculpatory evidence (evidence pointing towards innocence) they, the prosecutors, didn’t deem “material”.  In other words, the prosecutor got to decide what would information would be turned over to the defense and what wouldn’t be turned over. If the prosecutor didn’t think it made a difference to the Defendant they were the ones who decided the defense doesn’t get it.  It was like asking the fox who was guarding the hen house if the hens needed protecting…of course the answer from the fox was …no, of course not, I’ll let you know when they’re in danger…Such was the state of the burden on the prosecutors until recently.
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I have tried at least fifty cases that included a police officer who is called by the District Attorney as a “gang expert”.  The gang expert always testifies that the crime committed by the accused was done for the benefit of his gang.  This testimony occurs even when the crime occurs far away from the accused’s home territory and is completely unrelated to anything related to his gang.  For example, I had a case where a Santa Ana gang member and his two friends broke into cars in Laguna Niguel after a night of drinking at a party in the South Orange County area.  No gang signs were left at the scene and no one would have known a gang member had committed the car burglaries.  Even so, the gang expert testified the burglaries benefited the gang because the members gained money from the crime.
This overstretching and tortured testimony is no longer going to be allowed by the courts.  Now in the recent case of People v Perez, decided December 18, 2017 the Court of Appeal reversed a conviction for a gang crime in a case where there just wasn’t any evidence to support the testimony that it was done for the benefit of the gang.  In Perez, the defendant was a validated gang member,, who fired a gun at a party.  The Court ruled in very strong language that ” Not every crime committed by a gang member is gang related…..merely belonging to a gang at the time of the commission of the charged conduct does not constitute substantial evidence to support an inference that sole actor specifically intended to promote, further, or assist any criminal conduct by gang members.”  The police gang expert had testified that any crime of violence enhanced the gang’s reputation by instilling fear in the community.  Finally, a court has ruled that despite the inherent prejudice against gang members and gang crime not every crime is gang related even when it’s committed by a known, validated, heavily tattooed gang member.
Now when I make the same objection I’ve made for years the judge will have to rule in my favor, even though he doesn’t want to.  The rule of law prevails, sometimes it just takes awhile.
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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.

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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.


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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.  


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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.  

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Even if you aren’t familiar with the justice system, most people have heard of Miranda rights by watching TV.  These are rights that are guaranteed to a person when he/she is arrested and the police want to interrogate the person.  Before the police question anyone they have placed in custody, they must read these rights and make certain that the suspect either agrees or disagrees with them.  It is not ambiguous.  The person has to explicitly agree to talk to the police knowing that he doesn’t have to.  These are the Miranda rights:  “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?”

When a police officer testifies falsely that the defendant waived his Miranda rights, what happens if the District Attorney doesn’t reveal there is a video tape of the interview that shows the defendant didn’t give up his Miranda rights?

That’s what happened in the recent case of People v Harrison decided by the 2nd District Court of Appeal (B272132 decided October 26, 2017).  The detective testified that he gave the defendant his Miranda rights and then the defendant confessed.  However, a videotape of the interrogation came to light and it was clear that the defendant invoked his right to remain silent.

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There is good news for juveniles convicted of crimes that required a life without the possibility of parole sentences.  New California legislation provides relief for individuals who were convicted of crimes that required a life without parole sentence if they were under the age of 18 at the time the crimes was committed.  For example, previously someone who was convicted of murder for the benefit of a gang would receive a sentence of  life without the possibility of parole even though the individual was as young as 14 years old.  Now under AB1308 individuals in prison will get a chance at parole after 25 years of incarceration.  


It may seem that 25 actual years is a long time to wait for the Parole Board to hold a hearing for a crime but in comparison to never getting out of prison for a crime committed when the person was very young, it is a huge improvement.   

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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.