Articles Posted in General Information on Criminal Law

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The issue of getting a fair and impartial judge to hear your case is obviously important in every case. However, what can you do when you think the judge is prejudiced against you and your case? You could file a challenge to the judge pursuant to the Code of Civil Procedure section 170.6. A 170.6 petition allows you a one time per case ability to disallow the judge who has been assigned to the case from hearing it.  You do not have to prove bias on the part of the judge but you must file it upon hearing who the judge is.  Once you agree to have that judge hear the case you have given up your right to have the judge removed because of the 170.6 petition.   Once the time passes for your 170.6 motion, the only recourse is to file a Motion to Recuse, to remove the judge from your case. Recusing a judge is a serious matter, as it involves the removal of a judicial officer from a case due to a potential conflict of interest or bias. Recusing a judge is a legal mechanism designed to ensure that the administration of justice is fair and unbiased. In California, the primary grounds for recusing a judge can be broadly categorized into two main categories: statutory grounds (Code of Civil Procedure sections 170-170.9) and ethical considerations.

Statutory Grounds:

1. Bias or Prejudice: One of the primary statutory grounds for recusing a judge in California is the presence of bias or prejudice that might reasonably lead a party to believe they will not receive a fair trial. This can be demonstrated through the judge’s prior actions, statements, or behavior that suggests a predisposition against a party.

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In the summer of 2017, a minor, “Joe,” was sitting in a car directly behind his friend’s Infiniti. When the group in front of Joe saw a member from a rival gang cross the street, they stopped their Infiniti. One of Joe’s friends exited the Infiniti and shot the rival gang member. In the weeks to follow, the police recorded a conversation between Joe and a friend, where Joe said, “everybody touched that gun (from the shooting).”

With this information, a prosecutor charged Joe with possession of a concealed firearm. Three reasons led to this charge: (1) Joe’s statement about touching the gun; (2) Joe was close to the weapon when the shooting took place; (3) Joe knew about the gun before the shooting. These three facts were enough to convict Joe of possession of a concealed firearm.

In an effort to bolster their case, the prosecution used a jailhouse informant.  Joe’s friends told the jailhouse informant that Joe had no connection to the gun. Additionally, his fingerprints and DNA were not found on the gun. No matter the lack of solid evidence, the prosecution was determined to try to get a conviction.

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John Christiana was a California resident who had a long history of schizophrenia-related symptoms. Throughout his life, he also committed many crimes in the central region of California. In September 2008, for example, the state charged Christiana with grand theft, vandalism, and unlawful possession of a firearm. Then, in April of 2009, the state charged him with arson for starting a fire at the Schulman Grove Visitor Center in Bristlecone Pine Forest. At a trial for these crimes, four medical professionals evaluated his competence. All four noted that Christiana might have schizophrenia or a paranoid version of it, and three professionals determined him too incompetent to stand trial. With antipsychotic medication Christiana would be competent to stand trial.   The trial judge ordered Christiana to take the antipsychotic medication, but he refused to follow the order.

In California, the State has the right to administer antipsychotic medication when a defendant’s psychosis interferes with a trial. Sell v United States, a Supreme Court case, allowed states to medicate individuals too incompetent to stand trial. In Sell, the Court established a four-factor criteria that all states must follow: (1) Is the crime considered serious? (2) Will antipsychotic medication restore competency? (3) Are there less intrusive methods for restoring competency? (4) Would the drug produce serious side effects?

When Christiana appealed the judge’s order, the appeals court determined his Constitutional Right to Due Process had been violated even though he had refused to take any medication.  The Appellate Court found that the Sell factors 2 and 4 were not met. The experts had failed to  recommend a specific antipsychotic medication and further failed to consider what side effects would result from taking it.

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If the state deports a key witness in your trial, your case could be dismissed. Two cases, People v Torres and People v Roldan, outline when this might happen.

In December 2006, the state charged Juan Roldan with the shooting of Saba Barrera. Roldan allegedly shot Barrera three times due to Barrera’s affiliation with a rival gang. In addition to this charge, the state also charged Roldan with the murder of two more rival gang members. In the time between Roldan’s arrest and the trial, the police also arrested Barrera for his gang affiliation, and he was later taken into custody by Immigration and Customs Enforcement (ICE). While Barrera was in a federal immigration hold, the prosecution collected his testimony at a preliminary hearing. After the preliminary hearing, Barrera was deported and was not able to testify at Roldan’s trial. The prosecution still used Roldan’s preliminary hearing testimony at the trial. Barrera’s testimony was the strongest piece of evidence at the trial. Without it, the jury may not have found Roldan guilty and he would not have been sentenced to life in prison without parole.

Roldan appealed his guilty verdict by challenging the fairness of the trial. As Barrera, the key witness for the prosecution, was not at the trial, Roldan’s defense attorney could not cross-exam the statements made by Barrera. The prosecution didn’t attempt to delay Barrera’s deportation thinking they could just use the prior testimony from the preliminary hearing. The failure to do anything to stop deportation of the key witness against him violated Roldan’s Constitutional Right to Confrontation, the ability to challenge any witness’ testimony. As a result, the Court of Appeals of California overturned Roldan’s conviction and granted him a new trial.

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Mr. Glover, a Kansan pickup truck owner, was driving when he passed a sheriff’s deputy. The deputy, who was randomly checking license plates, searched the plate of his truck. Upon his search, the deputy found that the state revoked the license from the registered owner of the truck. The sheriff, assuming Glover was driving, pulled the truck over, verified that the driver was Glover, and charged him with driving on a suspended license.  Glover did not accept the idea that he was lawfully stopped and detained.  Instead, he believed that the police had no right to stop.  The officer hadn’t witnessed him commit any violation of law.  The deputy only had a  “hunch” he was driving the truck.  After all, he hadn’t done anything that would satisfy the usual standard for probable cause to detain.  That is, something the officer saw that led him to believe that the driver had committed a crime.   Glover’s lawyers argued the misdemeanor case all the way to the US Supreme Court. On April 6, 2020, the United States Supreme Court ruled in favor of the State of Kansas and made law that the rest of the country is going to have to live with as well.  It is now legal for police to assume the driver of a car is also the registered owner.

Before the Glover decision, police needed reasonable evidence to confirm the identity of a driver they knew was driving without a valid license before making a traffic stop. If the identity of the driver wasn’t known to the police there had to be an articulable objective suspicion of criminality before a detention could occur.  No longer, it is now much easier for police to stop your car on the road and issue a traffic ticket.

Our founding fathers created the Fourth Amendment to the Constitution, the protection against unreasonable searches and seizures, to protect us from abuses of power by the government. For this reason, it is essential to continue to fight the idea that police can use this case to justify all traffic stops. This case must be limited to it’s facts.  Unfortunately, based on past experience I believe that law enforcement will use this case to justify many stops based on hunches and speculation.  If there isn’t  reasonable evidence to believe you have violated the law, a vehicle code violation or other grounds to pull you over and detain you, don’t give up on the idea that your right to be free from unreasonable searches and seizures no longer exists.

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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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