DISCLOSURE OF CONVICTIONS TO EMPLOYERS

Effective January, 1, 2018, employers in California with five or more employees cannot make employment decisions regarding convictions unless first performing an individualized assessment. The Assessment entails consideration of: [1] the underlying facts of the crime as they relate to the nature and seriousness of the conviction; [2] the period of time that has elapsed since the crime was committed and whether the terms and condition of the sentence have been completed, along with [3] the duties and functions of the employment position [nature of the job] in question. Under the existing law through and including December 31, 2017, only governmental entities (City, County and State) were barred from making such personnel decisions.

Additionally, a private employer cannot ask questions, whether during a face to face interview and/or on the Application for Employment form, regarding a criminal history of a prospective employee until after a preliminary decision has been made that the applicant is qualified for the open position. Essentially, an employer cannot consider a person’s criminal history until after a preliminary or conditional job offer has been made to the prospective employee. As such, the employer is prohibited from having a background check performed until after making a conditional employment offer.

Assembly Bill 1008 (AB 1008) was signed into law on October 14, 2017 and, as a result, a new section has been added to the Fair Employment and Housing Act, commonly referred to as FEHA, to wit: Government Code Section 12952.

Shortly before signing into law the above mandate, on October 12, 2017, the Governor took a quite similar position as above when he made it a misdemeanor for violating AB 138, which prevents an employer from asking questions of a prospective employee regarding their previous salary, nor could employers consider the salary history as a factor in making decisions regarding an applicant for employment. The new law does not prohibit an applicant from voluntarily providing salary history information and it can be used by the prospective employer in making its own decisions in connection with the salary to be offered. Labor Section 432.3

None of the above should be interpreted as a prohibition against any Governmental agency (Board, Bureau and/or Department) from inquiring as to a conviction, commonly referred to as a background check, as part of the process of obtaining a professional or occupational license; similarly, this inquiry is an integral part of the renewal process regarding any such license. It should be remembered, there are approximately 50 agencies, including the California Department of Consumer Affairs. All of these state agencies have the power to investigate, deny, suspend or revoke a license, in the interest of the health and safety of the public, and thereby rely upon the underlying facts of the crime, as they relate to the duties and functions of a licensed professional or occupational license. Business and Professions Code Section 475-499.

For additional information, see Administrative Law Attorney.

Rehabilitation of Inmates and Prisoners

When we go back in history, there was a time when those incarcerated would receive vocational training, such as wood shop, electric shop, metal shop, upholstery, plumbing, gardening, and most importantly learn any other skill that would increase their basic knowledge, enhance their self esteem, provide an opportunity for a more positive transition to life outside of prison or jail, and decrease recidivism.

Unfortunately, as the budgets for nearly everything else seem to have increased, the amount allocated to skills building activities within the penal system has substantially decreased and to some extent has become nonexistent.

Recently, with the devastating wildfires, inmates have been allowed to volunteer to assist in fighting these catastrophic disasters throughout California. It has been reported the savings to taxpayers has been in the millions of dollars. Inmates get paid a $1. an hour for fighting the fires, and two days off their sentence while serving in this capacity (in contrast for one day off a sentence for each day of good behavior.

Some commentators object to this policy as they believe the prisoners are being treated as a “captive labor force.”Although there are clearly disadvantages to the utilization of inmates to fight wildfires, there are countless proponents who believe the benefits far outweigh any drawbacks.

Only more time and continued [forensic] studies will produce reliable data evidencing the nature and extent of support and/or activities associated with time spent in prison or jail greatly enhance an inmate’s knowledge, social, physical, vocational, emotional and other positive skills, contributing to unprecedented levels of rehabilitation.

 

 

PUBLIC DISCLOSURE OF VIDEO AND AUDIO RECORDINGS BY LAW ENFORCEMENT

In California, an increasing number of law enforcement officers are using body cameras [more commonly referred to as “body cams”], which are attached to their clothing to record the encounters and work they perform while on duty.

Proponents claim the goal is to increase the public’s trust and confidence in all peace officers, including the most obvious such as the police, sheriffs and CHP; as such, there may be 25% or more police agencies currently utilizing these devices. Additionally, it affords officers an opportunity to have actual evidence of their work in the field, and to defend against false accusations such as police brutality. Others accept transparency and police accountability as a valid premise, however, note the fact these devices can be shut-off and/or not turned on as a reason they feel far less confident in the process.

In criminal cases, body cam footage is available to defense lawyers as part of the discovery. On the other hand, such video records are not readily available in civil cases. However, during the earlier 2017 sessions of the California legislature, Assembly Bill 748 would have made the footage of body cams a public record; although proposed and later amended, AB 748 remains unapproved at this point. Hence, the public does not have an absolute right to the disclosure of video and audio recordings by law enforcement officers.

This subject might seem straightforward to most observers however, it is not. One of the arguments against the public’s right to obtain such audio and video recordings involves a person’s individual right to privacy. Whether it is a traffic violation, a misdemeanor &/or a serious felony, all of us believe in the premise “one is innocent until proven guilty.” As such, an individual’s identity, license number, address and other personal information that is part of the cam footage is and should remain protected. Until the Legislature adopts standards that can be incorporated into a bill that is passed and then signed by the governor, or becomes a referendum initiated by a vote of the public,  the matter remains an open issue depending upon the local jurisdictions in California and/or the courts that may deal with it on a case by case basis.

 

Common Legal Mistakes in Transactions

Clearly,  many of us go about our lives without making legal mistakes. Fortunately, many of us never incur legal problems. However, that should not create a false hope in our mind to ignore the fact that legal issues can arise and we have the power to avoid legal mistakes in our transactions, whether routine or once in a lifetime.

It is not very different than a person who has a spare tire in his/her vehicle, but has hardly used the tire or never used it. It makes good sense to periodically have our tires checked for air [and certainly, the spare tire]; in fact, tire manufactures and safety proponents recommend replacing tires after a certain period of time because the rubber and material that comprise tires wear out, even if there is still plenty of tread remaining on a tire [some recommend replacing a tire after six years, while others make the recommendation after eight years).  The same analogy can be made for purchasing home or renter’s liability and fire insurance. Some of us have purchased fire insurance for 10, 20 or even 30 years, yet never had the misfortune of having a fire; yet, there are very few of us  who do not have fire insurance.

If we do nothing to prevent problems and/or fail to realize the expectations in our daily transactions these situations can result in legal mistakes at best; but at worst, they can be the basis of a lawsuit. For example, one may forget the critical importance of having a detailed written contract when having a home remodeled, or when entering into other verbal agreements. However, enforcing our agreements and realizing our goals in many of our transactions can be a challenge if adequate consideration is not given to the scope and purpose of our agreement(s) and the unintended consequences. Moreover, it is hardly a mistake for a business, vendor, contractor, or sales person with whom one enters int a transaction to set forth the least amount of information. Whether this is deliberate or simply a result of being in a hurry or carelessness, we can describe the result as a legal mistake. Sadly, there can be one or more common omissions that are critical to an agreement, whether verbal or written. In this regard, you should consider the importance now and in the future to have a transaction spelled out in full in a written agreement, particularly crafted both in your favor [rather than the third person or business] and with the most number of details as possible.

When you contemplate or are about to enter into a transaction or an agreement, the first step is to have a clear plan of action. This includes making an itemized list of what you desire, along with what you expect to be performed, each of which to be included in the transaction, oral agreement or written contract. Then, you should request each and every one of those important items, facts, services and the steps or process to be used, to each be spelled out in writing, thereby becoming the important content of the agreement. From a legal standpoint, these are often called specifications, details, technicalities, terms and conditions, etc.  Avoiding legal mistakes in the transactions we enter into can not only save us money, but avoid disappointments and heartache.

 

Federal Judge Halts California Ban on 10 Bullet Gun Magazines

California has one of the strictest gun laws in the nation. After voters on November 8, 2016 passed Proposition 63, the state legislature concurred and the Governor signed into law a ban on possessing high capacity ammunition magazines (those that hold 10 or more bullets), which law was to go into effect July 1, 2017, making it a misdemeanor with punishment of a $100 fine and up to one year in County Jail. Previously in 2000, it was only unlawful to sell or buy high capacity gun magazines. On June 29th, a San Diego Federal District Court Judge ruled the ban was an unconstitutional violation of the Second Amendment to the U.S Constitution.  A Sacramento Federal Judge previously declined to take such action. At this time, therefore, those that already possess large capacity gun magazines can now keep them until a higher court rules on the temporary injunction or it becomes final.

Proponents of the ban have claimed it forces those using guns to reload by changing smaller capacity gun magazines, thereby allowing a victim to subdue the assailant and/or have an adequate period of time to flee.

Opponents state that argument does not apply to law-abiding citizens who previously were allowed to keep the high-capacity magazines they owned, as part of their constitutional right to defend themselves and their families. Additionally, they argued the law would have taken away private property without compensation.

Although not the subject of this blog, the U.S. Supreme Court decided on June 31st to not hear a case in which gun owners had complained their right to carry a concealed weapon for self-defense outside of one’s home was denied because they could not prove their desire to do so in public was no different than the right to self-protection of the general population. Both Justice Clarence Thomas and President Trump’s recent nomination of Justice Neil M. Gorsuch came out with a very strong dissent to that of the majority essentially criticizing the indefensible power of the State to regulate.

California Bail Policies

There are over one million adult arrested in California on an annual basis. Current statistics reveal that approximately one third of these individuals are bailed out, and only about three percent (3%) fail to appear in court for one or more legal proceeding.

The Eighth Amendment of the U.S. Constitution guarantees equal protection of the law and the right to reasonable bail, but this subject is not simple and for some it is controversial. The intent of the bail system is to protect an individual who is presumed innocent  from being punished unless and until proven guilty. It involves the payment of money or a deposit of security to assure a defendant who is charged with a crime will be present in Court on each of the hearing dates. A fixed amount of bail is established by case law or statute, and it is based upon the severity of the crime(s) and the flight risk of the defendant. In other words, bail is used as an incentive for the defendant to  show up for each of the court proceedings

It has often been argued that being required to post bail places an unfair and unreasonable burden on the middle class, and even a far greater challenge for the poorer population who cannot afford to post large sums of money to be released from jail. Because one is considered innocent until proven guilty, which requires proof beyond a reasonable doubt, the opponents of California bail policies point to the fact far too many are required to remain in jail because they cannot afford to post bail, and these very same individuals may later be deemed not guilty and/or likely enter into a plea agreement of a much lesser crime, which if that reduced offense was charged in the beginning, the bail would have been much lower. These opponents of the California bail system also argue taxpayers have to pay for the time and costs to maintain a defendant in jail, such as the salary of the Deputy Sheriffs, food and many other expenses related to the incarceration. It is further postulated that lawyers who have contested bail by taking the case to one of the six districts of the California Courts of Appeal, universally have been unsuccessful in reversing the Superior Court’s Order re: Bail.  

Proponents of the bail system in California contend that Superior Court Judges do an excellent job in their role of determining at a bail hearing or arraignment whether the facts support no bail (O.R. or free on one’s own recognizance); and/or imposing a lesser or higher bail amount. The Court reviews the defendant’s prior criminal history, if any; the seriousness of the current charges; whether there is  potential danger to the victim(s) of the crime and/or their family; the potential risk of harm to the public safety and, therefore, society at large; whether the defendant has ever failed to appear and, therefore, may now as well be a flight risk; and/or a host of other facts, including the “ties” the defendant has to the community, such as full time employment, a lease or ownership of his/her residence; and, family members; all of which tend to be relevant to the Court’s order regarding the extent of bail, if any.

Should a Lawyer Predict the Outcome or Result in a Case?

It is not uncommon for a prospective client and, for that matter, even an existing client, to inquire as to the likely result(s) in the handling of their case.

It is simply unwise to predict an outcome or even worse to speculate on what can be expected. I do not predict the expected or anticipated result without first doing the required work-up. Moreover and even after performing the necessary case evaluation, factual and legal analysis, and requisite strategy, I still need to prepare and execute a complete plan of action.

It seems reasonable to state there being over 215 five-star client reviews and endorsements from lawyers all over California and the United States; having earned  the “Client’s Choice Award” for ten (10) years in a row since 2007; having served as a Deputy Attorney General for the California Department of Justice between 2000 through 2008 as a prosecution lawyer at the Attorney General’s Office; and, since that time, concentrated my law practice on the defense side of cases with tested protocols we utilize that have produced a winning record.

As a lawyer, there are two guiding and profound principles that are etched in my brain;  they are an integral part of my thought process, and have been my approach for four decades: “what I don’t know, I don’t know.” There is a second I learned from the first day at Loyola Law School: “when you think you will win, you will likely lose.” In short, I practice law without bravado, and I am better for it because I try harder and work longer to find every possible way to develop a defense. Often, and even more important, is my highly effective practice to establish and develop a compelling and comprehensive “offensive strategy” [for those who know the world of  sports, it has been said that more points are obtained by the offense plays that are made].

We find it priceless to first obtain all of the evidence, which is commonly referred to as the “discovery” from the Deputy District Attorney or Assistant U.S.  Attorney in a criminal case; the Deputy Attorney General handling a professional or occupational license matter; and, the Department or Bureau Legal Counsel handling the prosecution case. The next step is to thoroughly review and fully analyze the prosecution evidence [this process cannot be done in an office interview with a client or on the telephone]. Some lawyers may  do this quickly, however, there is too great a risk that one might overlook a legally significant fact, if not much more. The next step is to request and initially obtain a lengthy written rebuttal from our client, which at times is 10, 20, or even far more pages in length; we do not rely upon an abbreviated version that would only be possible during a teleconference or even an office meeting. There are multiple other steps as part of my law firm’s protocol before I and/or my colleagues are able to fully understand a case and then to establish an appropriate plan of action. We simply do not provide legal advice with less; we do not predict a result nor do we gamble on the outcome.

In addition, it has been my practice to utilize forensic experts [the trial science] because only through an expert evaluation can a lawyer  know what is truly the standard practice that is relevant to a specific set of facts. Even though I spent over seven (7) years serving as a Deputy Attorney General and nearly four decades as a Professional License Defense Lawyer, I do not speculate on how to obtain a winning result. My clients deserve more!  In summary, I tell prospective clients: “I cannot predict a result, and no experienced lawyer can do so without a thorough examination of all of the facts and applicable legal principles.” Most importantly, “the more time and work performed, the greater opportunity for a better result.”

For your complimentary attorney teleconference, call Spital and Associates at 619.583.0350. It is even more helpful for you to visit the Contact Us page of this website and send an email with the details of your situation, information and questions you have, along with the desired action you wish a lawyer to take on your behalf; notably, it will be answered by Sam Spital, Managing Lawyer who will contact you in order to discuss the options, alternatives and steps in order to obtain your personal lawyer to level the playing field, and protect your rights and advance your interests.

California Government Considering Law to Become Sanctuary State

California Senate Bill 54 has recently been introduced; it proposes to establish a new law to prohibit law enforcement agencies from cooperating with Federal Immigration Authorities. Whether state law enforcement (State Police; CHP, etc.), county (Sheriff), city (local police),  school police or security departments, organization or individual, they would be prohibited from investigating, detaining and/or arresting anyone suspected of a crime that would constitute or be characterized as aiding, assisting, helping or facilitating the enforcement of immigration laws. The Attorney General of the State of California will also be mandated to publish model policies limiting assistance with immigration enforcement by the U.S.  Immigration and Customs Enforcement (ICE). In addition, the bill would require the University of California, public schools and libraries, along with all other facilities that provide services related to education, wellness, physical or mental health, and courthouses to implement a similar policy.

ICE would still be permitted to conduct deportation raids in California, however, they could not rely upon or be assisted by state or local law enforcement (police, sheriffs, etc.). Basically, California would become a “sanctuary state” and countless numbers of individuals claim the state would be protecting criminal felons from being deported. In addition, ICE would be banned from entering jails to interview inmates suspected of living in the United States illegally.

You may be against the idea of sanctuary cities, but as you can see from SB 54, our California government is currently in the process of establishing it as a “state sanctuary.”

Opponents have argued against this bill because it would allow those with criminal records, such as violent felons, to remain on the streets. Proponents  claim by protecting immigrants, even those who have committed violent crimes and/or other felonies,  it is the only humane thing to do for anyone who lives in California. They cannot accept the proposition that there have been many innocent citizens who have been murdered at the hands of undocumented immigrants with prior criminal felony records.

Additionally, Senate Bill 54 does not distinguish between those non-documented immigrants who have a minor infraction, such as driving with an expired vehicle registration tag or broken taillight, and those who are extremely serious and heinous criminal offenders, such as having been convicted of murder, rape, arson and child molestation. Hence, California’s 2013 Trust Act that protects unauthorized immigrants who came to the United States before the age of 16 and other undocumented individuals living in California, who otherwise have been law-abiding, would be superseded by SB 54 and, therefore, these individuals would then be subject to deportation by ICE officers if they were arrested for an infraction.

 It has been reported that California gets about $1 BILLION A DAY from the federal government, and if that is withheld as a sanction against stopping immigration officers from picking up non-documented individuals (politically correct name for illegal immigrants) who have a criminal record, there will inevitably be budget shortfalls in California.

Even if the majority of the California  population oppose sanctuary cities, and no doubt will oppose SENATE BILL 54 that otherwise will make California a “sanctuary state,” if you want this to go to a referendum (to be put on a forthcoming ballot so everyone can have a chance to vote their conscience), you should place your name, city and email address on the web page posted by and this link from California State Senator Jeff Stone.

VIZIO TV Settles Charges Of Tracking Viewers’ Data

In last month’s case of FEDERAL TRADE COMMISSION et al v. VIZIO, INC. et al, the FTC obtained a stipulated (agreed) settlement with a permanent injunction against, and payment of over $2 million from, Vizio, which is one of the largest television manufacturers in the world.

The FTC alleged Vizio acquired from the video displayed on monitors and TV’s from viewers’ cable, broadband, DVD, over-the-air broadcasts, streaming devices, etc. very specific demographic information, and  second-by-second users’ viewing habits along with the viewers’ age, sex, marital status, size and income of the household, level of education, whether viewer’s owned their home and its value.  In addition, the FTC asserted Vizio sold the data to others, who used it for target advertising to consumers using other devices.

On February 6, 2017, a Stipulated Order for a Permanent Injunction and Monetary Judgment was filed with the United States District Court. Although Vizio denied any liability,  they were charged with participating in deceptive, unfair and unconscionable practices, misrepresentations, false promises, and omitting material facts in collecting and sharing viewers’ data while using the Smart Interactivity feature in over 10 million Vizio TV’s they sold. These are so called “smart” televisions and monitors that can connect to the internet.

Vizio agreed to disclose and obtain consent for the above data collection and sharing practices; and is prohibited from making false statements and misrepresenting the privacy, security &/or confidentiality of the viewers’ information they collect.

It is noteworthy, there presently is a consumer  Class Action lawsuit filed and pending against Vizio involving this subject matter.

Sadly, our respective rights to privacy and individual expectations of being free from daily intrusion from others, whether government, business, and/or others, are being compromised as we seek to enjoy the continuing benefits of the growing number and expanding scope of our electronic devices.

With this link, consumer information published by the FTC, one can obtain varied educational and enlightening topics and subject matter.

CAUTION: You May Get An Email, Text or Pop Up And It May Not Be Authentic !!

One of the newer scams is pop ups; these are windows that automatically appear on your cell phone screen, desktop monitor, laptop, tablet or notepad. Originally they were intended and, therefore, designed as a form of online advertising to attract business to a website. More recently, some have become a tool to not only capture the email addresses on your device, but some may also be fraudulent, using 1000’s of popular site names.

Be extremely cautious before you do anything on your device, such as replying to an email, &/or acting on a text message, or a pop up.

Sadly, they can easily copy genuine logos and addresses.  +The following are examples merely listed to remind each of us these are elusive criminals preying on billions of people and businesses on a daily basis +using all too familiar and very common genuine business names like: Microsoft, Intel, Norton’s, Facebook, iTunes, HP, Epson, Apple, Yahoo, Google, AT&T, Gmail, AOL,  National, Regional or Local Banks, Maps, Media Player, Real Player, Music, Weather, Flashlights, Apps, Texts, a nd many other popular applications that are used by hundreds of billions of individuals, including each of us.

It is not that you have yet to see any of these scams, but when this will occur.

Merely shutting down your device might not be a solution, as it might also be the trigger for them to gain access, if not already!!

They look genuine and are intended for you to simply:

push “ok” 

or

click ” here

or

update now

or to simply

reply

and your Computer, Cell phone, Tablet &/or Laptop is open to them to see everything, including your usernames, passwords, and anything you want to be private; and, then face the huge problem of getting them off, if they have not also “ locked your device ” so you cannot access it without calling or texting a number to pay a ransom.

It has been suggested that the alternative is to go online and find the “actual” and “genuine” business, then search to see if they have and use a genuine app, and/or call and speak to their customer service to inquire if there is a link to their app and the online page for you to click. Remember, to be extra cautious and really certain the email, text message, popup and app is authentic before you click, update, open or reply.

Some cyber specialists also recommend we do not provide our identification information to a retailer; nor to anyone when surfing the internet. Take the same precautions whether you have contacted a business to make a purchase or sought a service through the internet This cautionary note is also important when providing your private information to anyone who has contacted you, whether in person, via text, email or on the telephone.

It is a sad commentary that we have to be guarded when we get an email, text message, see a pop up or we are asked to update a particular software on any of our devices. Now we may even need to have a concern, for example, when we get a call from a charitable organization asking us to make a contribution; here as well, we may want to ascertain if they are the authentic entity who they say they are, and/or do not adequately protect the credit card information you decide to give to them. Some individuals do not respond at all; others have chosen to use a money order or check, and send it through the U.S. Postal Service.