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 Recent Change to Marijuana Law

Under the ballot measure designated as Proposition 64 that was passed by 57% of the voters in the November 8, 2016 election that became effective November 9th:

1) those convicted of a felony as a result of possession, transportation &/or cultivation of marijuana can have it reduced to a misdemeanor;

2) the County Public Defender in San Diego has offered to file the Petition for free even if the crime occurred years ago, and even if the defendant was previously represented by private counsel;

3) if the San Diego District Attorney decides there is a basis to have the felony reduced to a misdemeanor, the defendant may not even have to appear in Court;

4) the current process in San Diego allows the Superior Court to re-sentence a defendant from a felony to a misdemeanor, or dismiss the charges [it would seem beneficial to have private counsel if one hopes to obtain a full dismissal of a prior felony conviction];

5) the law also now permits anyone over age 21 to possess up to 28.5 grams of marijuana, or grow at any one time up to six marijuana plants at their residence.

6) the maximum penalty is now up to six months in the County Jail and/or a fine of up to $1,000 for those who grow, transport or sell marijuana, which are now misdemeanors.

7) there are certain exceptions causing the case to be charged as a felony, such as:

  • the defendant has prior convictions for the sale of drugs;
  • the defendant is charged with transporting marijuana into the United States &/or across state borders. For example, one cannot obtain marijuana in a state in which recreational use is legal and bring it into California;
  • the defendant has a prior conviction of certain felonies that are deemed “strikes;”
  • the defendant is a Registered Sex Offender [RSO].

8) in addition, there are miscellaneous restrictions in connection with marijuana, such as:

  • there are Federal laws that apply to the use, possession, sale, transportation and/or cultivation of marijuana;
  • driving while impaired by the use [under the influence] of marijuana is a crime in California;
  • smoking marijuana (a joint) (pot) in public is still illegal;
  • a store, shop, or retail establishment that sells recreational marijuana must check ID’s to be certain they are not selling marijuana to a minor; and such a business cannot be within 600 feet of a school, daycare or youth center;
  • unless the law is amended, a medical marijuana dispensary and/or an entity that cultivates marijuana cannot legally sell to an adult recreational user [includes social, personal or nutritional uses] until January, 2018;
  • advertising that is aimed to minors is prohibited;
  • a city or municipality has the power to issue an ordinance to ban the sale of marijuana; and if they permit such a commercial entity to do business, they have the power to regulate those entities under zoning laws.
  • an employer can lawfully require all prospective employees to pass a drug test as a condition of employment for certain positions as long as no individual or group is unlawfully selected, such as discrimination on the basis of race, nationality, religion, sexual preference, etc.
  • an employer can lawfully refuse to hire an employee who has tested positive for marijuana, even though it was legally prescribed for a medicinal purpose

9) nonetheless, there are still advantages to have a felony reduced to a misdemeanor, including but not limited to allowing an individual to maintain &/or obtain current and future: employment, security clearance, insurance, rent or lease property, and, in specified instances to possess a firearm, etc.

On the other hand, it is still likely if one has a professional or occupational license in California, or seeks to obtain such a license,  the state licensing Board, Bureau, or Department will require one to report a crime, whether a felony or misdemeanor; and, they will investigate and likely file an Accusation even if a misdemeanor is expunged. At Spital and Associates, we aggressively seek to present a comprehensive and cogent treatise with a compelling defense and offense and utilize forensic experts (adding the technical science) to marginalize any such investigation or Accusation.

Any discussion of marijuana of necessity has to include what opponents consider to be the dangers of such use. The short term effects include but are not limited to causing changes in a person’s mood, but  it can also impair body movement; as well as difficulty in attention and/or memory (learning) and/or problem solving (thinking). It has also been reported that marijuana raises one’s heart rate, which can increase the risk of a heart attack, particularly with older individuals and/or those with congenital or later developed or contracted heart problems.

The long term effects can adversely impact the previously mentioned mental abilities, and possibly cause permanent loss of certain brain functions. In some individuals,  the long term use of marijuana can cause temporary symptoms such as paranoia and hallucinations, as well as anxiety and depression that has been linked to mental illness. Not only can there be a loss of physical and/or mental health, but it has also been described as a “gateway drug” because it can lead to the use of other drugs and narcotics (some of which are highly addictive and deadly).  In addition, the smoke can harm a person’s lungs and, therefore, cause lung cancer. The risk to the development of a child during and after pregnancy is still unknown. When one seeks to stop using marijuana, there may be withdrawal symptoms.

You are encouraged to consult with a physician in terms of  medical and psychological issues; and, it is recommended that you obtain the advice of an experienced lawyer in regards to each and all of the above items to determine whether and to what extent any apply to you, a loved one, and/or a friend or associate. If you desire a Free Attorney Consultation, call 619.583.0350 and ask for Sam Spital, Managing Lawyer or send an email

Do You Know Whether You Are Using Fake Apps (Applications)?

Almost everyone uses a cell phone today. And, the number using a smart phone and/or any other mobile device, such as a tablet, is increasing daily.  We know that cell phones can be used to send instant text messages, which for many are used more frequently than communicating in person, on the telephone or sending an email. And, it has been reported that some individuals now spend more than four (4) hours or more a day using mobile devices. With the added time spent surfing the internet on all devices, using (icons on a desktop or) applications on a mobile device has become increasingly advantageous and customary for many of us.

Applications are more commonly referred to as “apps.” At this point there are approximately  4 million apps for Apple and Android cell phones.  Using apps save a lot of time, do not require entering information on a search bar, and then selecting from a host of different entries or listings. As  result, many consider apps to have become priceless (not just the free ones, but even those that come with a fixed price at the beginning and/or even a monthly fee).

Some apps are simply a convenient way to reach a business, and for many apps that are free there often are lots of advertisements that can be a nuisance. But, some apps bring with their use both spam and viruses, while others can cause a great deal of harm, for example when a culprit uses their fake app to obtain all of our confidential information stored on our device.  Yes, there are a growing number of apps every day that are fake & not genuine. The average individual would not ordinarily be able to discern whether an app is legitimate because they use the exact logo, same address and everything including the order form that makes them look genuine, except the telephone number and email address with which you are using to communicate.

Even worse once you find an object on the internet using a counterfeit or fake app (and, not knowing it is not authentic) to order and make a purchase,  you will never get the product, but your credit card will be charged. Then, all of your identification information will have been gathered, and before you know it you will have to cancel your credit card because it has become an object of identity theft of hundreds and potentially thousands of dollars. You may be naive to what has taken place and innocently give your address, your driver’s license number, and/or Social Security number (even just the last four digits). The problems just begin, having to report the suspicious and illegal activity, and cancel your credit card, which can ruin your credit.  In addition, some or all of your private and confidential information stored on your device, however, may also be hacked and open to countless others.

An alternative may be to go online and find the “actual” business, then search to see if they have an 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. But, next time be cautious and  really certain the app is genuine before you provide your identification information to a retailer or anyone when surfing the internet. This cautionary note is also relevant when providing information to anyone with whom you are speaking, whether in person or on the telephone; and, take the same precautions whether you have contacted a business to make a purchase or sought a service through the internet.

Court of Appeal Recuses Orange County District Attorney’s Office in Murder Case

On November 23, 2016, the Fourth District Court of Appeal affirmed the Superior Court’s Decision  recusing the entire District Attorneys Office in Orange County [OCDA] in the penalty phase of a case in which the defendant had previously pled guilty to eight counts of murder. The Superior Court concluded the OCDA had such a severe conflict of interest (its duty to fairly prosecute a case under the rule of law) with the [OCSD] Orange County Sheriff’s Department (in which the loyalty by prosecutors to  the sheriffs conflicted). As a result, the court held  it was unlikely the defendant could have a fair trial. This determination came after hearings over a period of six months in which nearly forty witnesses testified as to the systemic, known and prejudicial use of confidential informants that violated the constitutional rights of inmates, along with substantial discovery failures of the OCSD.

The ruling came after a  murder trial heavily reported by the media involving a defendant who with a barrage of gunfire killed eight individuals at a hair salon where his former wife was working. Although the Deputy Public Defender representing the defendant eventually discovered sheriff’s deputies were using confidential jailhouse informants to solicit incriminating statements from high-profile defendants, the District Attorney’s Office and its prosecutors on an ongoing basis failed to disclose this practice.

 

WHAT TO DO IF YOU GET PULLED OVER?

Knowing what to do in the event you get pulled over is very important. However, it is equally important to know the reasons for getting stopped by a law enforcement officer so as to avoid being pulled over in the first place.

Here are a few of the top reasons:

  1. Speeding. Clearly, driving above the speed limit is most likely going to catch the attention of the police, sheriff or C.H.P. Because it will take longer to react to an unexpected event, and the braking distances increase the faster one drives, this is the number one reason law enforcement pull over drivers as it obviously helps prevent accidents.
  2. Cell Phones. With the proliferation of mobile devices, nearly everyone is using a cell phone throughout the day and night. However, using a cell phone to text and/or talk with another person while driving a vehicle is another major reason you will get pulled over. And, to deny you were using the phone or to throw the phone on the seat next to you may not be as clever as it might seem; cell phones not only maintain their own records on the device, but can be traced to the cell towers to identify the time and location of our communications.
  3. Unsafe & Hazardous Driving. It should be no surprise that, among other things, following too closely; driving through a stop sign or red traffic signal; making an illegal U-turn; failing to yield to other vehicles; unsafe and/or improper lane changes; driving too slowly; not wearing a seat belt; and, failing to signal are at the top of the list of the various reasons for getting pulled over by law enforcement.
  4. Vehicle Equipment. At the top of the list of equipment violations are improperly (extremely) tinted windows; headlights that are inoperative (such as burned out); expired registration license plate stickers; and, having no license plate on the front bumper. These are vehicle equipment reasons officers make traffic stops.

 

Considerations:

Once you become aware an officer intends for you to stop your vehicle, you should cautiously pull over to a safe area of the road or freeway as soon as possible. When the vehicle is at rest, the motor should be turned off.

The officer will request your driver’s license, vehicle registration and proof of insurance. Being evasive or denying any wrongdoing when it is clear you violated the law is not likely to be in one’s best interest. Also, do not argue with the officer. Being polite as in most situations we face is generally the wisest decision.  By talking back to or arguing with an officer, it is likely the officer will be angered; and, being confrontational, probably will exacerbate the situation. Since an officer has discretion on how to proceed, there is little or no reason to get into a conflict with him/her. On the other hand, if the officer asks “Do you know why I stopped you,” it is noteworthy that anything you say can and will be used against you (see information below).

Some Relevant Laws:

The Fifth Amendment to the U.S. Constitution: This Amendment to the Constitution guarantees one the right to remain silent and to be free from self-incrimination. In the situation of a traffic stop, however, refusing to talk to an officer can result in unintended consequences. Ordinarily, a traffic stop is deemed an investigatory process; at the outset, you are not considered to be in custody and, therefore, there is no requirement to be admonished by law enforcement as to your rights. If you are asked to “voluntarily” come in to the police or sheriff’s station for questioning, you can refuse. On the other hand, once an individual is arrested, you will be taken into custody and, therefore, should obtain the advice of a criminal defense lawyer before making any statements. And, if the traffic stop escalates into an arrest, you should affirmatively invoke your Miranda rights under the Fifth Amendment and remain silent. However, it is important to do all of the above calmly and politely.

The Fourth Amendment to the U.S. Constitution: If an officer decides to detain you, there may be sufficient evidence to do so. If there is probable cause to make an arrest, however, the situation as noted earlier becomes one in which you are in “custody;” then, the officer must state (commonly referred to as the Miranda rights)  you have a right to remain silent; anything you say or do can and will be used against you in Court; you have a right to an attorney; if you cannot afford a lawyer, the court will appoint one. At the point of what can be characterized as a custodial interrogation, it is highly recommended you do not answer any questions nor voluntarily provide your own narrative of the facts without the prior advice of legal counsel.

This blog is not intended as legal advice. Each situation requires a proper and thorough evaluation of all of the facts and circumstances. It is noteworthy that there are many articles on the above subject matter. In addition, you can view more information by clicking the topic Probable Cause and Miranda rights.

Federal Appeals Court Bars DOJ From Prosecuting Medical Marijuana Cases

On August 16, 2016, a three- judge panel of the 9th Circuit of the United States Court of Appeals (this is the federal appellate court that covers California) ruled against the Federal Government, holding the Department of Justice (DOJ) cannot prosecute marijuana cases when a STATE permits medical marijuana &/or a business or individual is in compliance with state law.

In 2014, Congress passed a bill known as the Rohrabacher-Farr Amendment that DOJ cannot use any of its funding in any given fiscal year to interfere with medical marijuana laws in the states. In other words, the Federal Government is barred from preventing states from how they regulate the use or sale of marijuana.

This is a victory for proponents of medical marijuana laws, but there are two apparent limitations:

  • The cases will likely turn on whether there is strict compliance with the relevant conditions of state law; and
  • The Congressional appropriation restriction noted above expires 9/30/16 and, unless Congress passes a new bill to extend that prohibition, it will soon expire.

This is a unique situation inasmuch as the Federal Government has not updated its laws for40-50 years while approximately 41 states authorize at least one form of medical marijuana use. Some commentators argue the Federal Government is out of step with [what seems] a growing trend in a majority of states

We can expect to see new legislation by Congress regarding this subject very soon.

 

California Petty Theft Laws: Detention and Civil Demands

Unless specifically set forth as grounds for Grand Theft, the Petty Theft laws apply, as follows:

  •  Petty Theft is often referred to as shoplifting; as a general rule it takes place when one obtains property by theft, that involves a value less than nine hundred fifty dollars ($950);
  • A first conviction generally constitutes and is punished as a misdemeanor. Penal Code Section 490 provides for a fine for each violation of up to one thousand dollars ($1,000), or up to six (6) months in the county jail, or both;
  • The prosecutor (District Attorney or City Attorney) has the discretion to charge the defendant as an infraction if the person has no prior theft or theft-related conviction (Section 490.1);
  • In addition to other civil remedies, the merchant can make a civil demand and collect up to five hundred dollars ($500), plus costs. In addition, the store may collect the retail value of the merchandise;
  • Pursuant to 490.5 (f) (1) of the Penal Code, a merchant may detain a person for a reasonable time to conduct an investigation if the merchant has probable cause to believe the person of interest unlawfully attempted to take or has unlawfully taken merchandise from the premises of the store.
  • A reasonable amount of force not likely to cause great bodily harm may be used if it is necessary and, therefore it becomes, justifiable, to protect oneself and/or to prevent the person who has been detained from fleeing &/or the loss of the merchant’s property;
  • Following the above principles, the merchant may request the person who has been detained to voluntarily surrender the item in question, and if refused, is permitted to conduct a reasonable search to recover the same. This involves and is limited to handbags, packages, shopping bags and/or other property possessed by the detained person; this search does not, however, encompass any clothing worn. Crimes Against Property:

Although a merchant may demand attorney’s fees or threaten to cause harm to a person’s credit, they do not have the power to do so [attorney’s fees are prohibited in such a case, and because there has been no adjudication of money owed, they cannot report someone to a credit bureau]. Also, it may be deemed a violation of State extortion and Federal collection laws for a merchant to threaten criminal &/or civil action

The facts and circumstances differ in one case from another and, therefore, the information in this Blog is not intended as legal advice.

California Measure on November Ballot to Repeal Death Penalty

Residents of California over 18 years of age and a U.S. citizen who are not currently in prison or on parole for the conviction of a felony and not currently found mentally incompetent by a court will have an opportunity to vote in the November election whether to repeal California’s death penalty law.

If passed, the initiative is intended to repeal capital punishment and replace it with life in prison without parole. Proponents of the measure claim the initiative will reduce the number of inmates as well as lengthy appeals, thereby saving an alleged $150 million per year. In 2012, a similar proposal was barely defeated.

There are over 700 prisoners on Death Row in California, the state with the largest number in the nation. Since 1977 when California reinstated the death penalty, there have been only 13 executions. In January, 2006 and after our last execution, a federal judge concluded there were flaws in the lethal injection procedures along with inadequate training of prison staff and, therefore, the risk of an improper and painful execution was unjustifiable. Since that time, there has been an inadequate supply of single barbiturate (previously used three drug combination) injectable drugs, if any; Judges in the Federal Courts also have not approved new prison procedures and protocols

For an earlier Blog written by this attorney regarding this subject, click here:

2016 New California Laws

There are about 800 new California laws that went into effect on January 1, 2016. Here are a few noted by the following topics:

Driving Under the Influence – drivers convicted of a DUI (whether alcohol or drugs) in four California counties [Alameda, Los Angeles, Sacramento & Turlare], under an existing program that will remain in effect until July 1, 2017 will be required to install an ignition-interlock device (IID) on their cars. The IID registers alcohol on the driver’s breath, and is designed to prevent the vehicle from starting based on a pre-determined level of blood alcohol.

Earbuds – earphones, headsets or earbuds in both ears cannot be used while driving a vehicle or bicycle

Electronic Surveillance – the police, sheriff and law enforcement must first obtain a search warrant before accessing your e-mail, text, social media, data and other electronic information, unless it is determined to be an emergency situation.

Gun ban – those who have a CCW permit (individual who may legally carry a concealed weapon) will not be allowed to bring their guns on school and/or college campuses without advance permission from the school or campus authority.

Gun-violence restraining order – individuals who fear a family member could hurt their self or others can apply to the court for a gun-violence restraining order to limit the person’s access to firearms for up to one year

Medical marijuana rules – a statewide agency will now license and regulate all aspects of the cultivation, manufacture, transportation, storage, distribution and sale of medical marijuana.

Motor-voter registration – adults who apply for or renew a California driver’s license will automatically be registered to vote, although one can opt out if you do not want to be registered.

School Children – must be vaccinated to go to public school

Toy guns – are outlawed (can’t be displayed) in public unless brightly colored such as red, pink or yellow

Work Pay – equal pay is required for men & women. It is not less burdensome for a female employee to challenge her employer if there appears to be a disparity in the pay women receive in contrast to men performing similar work. Employers are also barred from prohibiting workers from talking about their &/or their co-workers’ pay in order to determine wage fairness. The minimum wage in California is now $10/hr. However, fewer minimum wage earners now work a full 40 hour work week as a result of the expanded wage, health, and benefit laws involved in operating a business.

This is a summary only and not intended to constitute legal advice. For the official webpage and guide of the Bills the California Legislature enacted in 2015, click: Bills Enacted in 2015