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

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.

 

Are Firearms The Real Problem or People Who Abuse them?

With the escalating scourge of mass killings, we are obliged to examine both the underlying causes of and potential solutions to drastically reduce mass shootings, by those with depraved and evil minds, sociopaths, psychopaths, terrorists and barbarians who without any conscience (morals) whatsoever use military style assault weapons and/or stockpile and then utilize huge quantities of bullets and large quantities of ammunition magazines to murder innocent and unsuspecting individuals regardless of age, race, sex,  .

It is noteworthy, the subject of colossal shootings is complex and there are clearly two sides of the equation. Moreover, these concerns are not new; sadly and repeatedly have political overtones. Hence, it is hoped the reader of this blog will perform his/her own search on the internet to review state and federal firearms laws, exceptions, limitations and other issues, including actual statistics. We should be mindful that these are serious and horrific acts, yet we need to acknowledge there also are far more deaths that are due to other causes (such as deaths due to driving under the influence, but for the sake of this comment only and albeit an over simplification and generalization, but we do not outlaw or seriously limit the sale &/or consumption of alcohol).

Proponents of gun control claim we need stricter gun control laws. Opponents claim we already have strict regulations, and in those jurisdictions that have “gun-free zone” laws in which it is prohibited from having a firearm these locations have a far higher number of shootings.

First, it is noteworthy, that the Federal Gun Control Act, enacted in 1968, establishes a list of those (such as felons) who are prohibited from possessing, obtaining or receiving firearms and ammunition. In addition, there are many other restrictions as to the sale, use, possession, transfer, etc. of such weapons. Click the following link for the 247 page Federal Firearms Regulations: Federal Reference Guide

Second, California has one of the strictest gun control laws in the United States. Yet, the recent shootings in San Bernardino, a large metropolis in California, occurred even though assault weapons were used and are already against the law. Also, California has a huge number of restrictions, such as limiting large capacity magazines that hold a dozen or more bullets. Click the following Link for the California Firearms Laws summary: California Firearms Law

Is the solution to enact tougher gun laws? If so, why did the most recent shootings occur in three states (California, Colorado and Oregon) that already have very strict gun laws?

Some pundits argue the states that have the most lenient rules and regulations regarding firearms have the lowest number of mass shootings; perhaps, because terrorists look for sites where they will not face opposition by individuals that “carry” weapons. Maybe that is one of the reasons movie theaters and malls, shopping centers, schools, churches and social centers, etc. have been the place of choice and selected by such terrorists. These same pundits encourage individuals to arm them self to be able to defend and/or fight back; they note that police cannot be on every corner and the drive time to respond is too great to risk your death or anyone else in the interim. Some advocate we urge our legislators to pass emergency legislation to increase the number of police, sheriff and FBI, and give them the power they need to accomplish their job.

It is hoped this blog will open a further dialogue in the reoccurring debate that includes many who claim taking away &/or more severely limiting those law abiding individuals who desire to possess and/or carry firearms will not prohibit the lawless, who it seems inevitably find ways to obtain whatever weapons they desire, whether illegally or not. Choose the narrative you feel comfortable with, but be open to seeking a realistic solution that is based upon logic, reason, and, of course, our United States Constitution, and not political rhetoric. Contact your state and federal legislators to voice your opinion.

Appeals Court Upholds California Death Penalty

On November 12, 2015, the United States 9th Circuit Court of Appeals upheld
the constitutionality of the California Death Penalty and in so doing reversed the ruling by the US District Court that decided under the 8th Amendment it was unconstitutional as cruel and unusual punishment because of lengthy and unpredictable delays. The California Attorney General argued the delays were a result of the number and length of time involved in the legal maneuvers and appeal process that affords inmates their constitutional right to file appeals and writs of habeas corpus.

The history of the case is that in 2003, the California Supreme Court upheld the underlying conviction of the defendant/inmate on first-degree murder and rape charges.

In California since 1978, there have been approximately 900 defendants sentenced to death, with only 13 actual executions, and none in about ten years. Executions at San Quentin State Prison have been on hold since 2006 when a Federal Judge deemed there to be legal issues with the then current and past combined multi-drug lethal procedures. Since there is now a national shortage of single lethal drugs that too poses additional problems. In California, there are now about 750 inmates on death row (about 100 died while imprisoned due to other causes).

Should law Enforcement Be Permitted to Stop and Search on the Basis of an Anonymous Tip of Reckless Driving?

In the U.S. Supreme Court case of PRADO NAVARETTE et al. v. CALIFORNIA, 12-9490 (April 22, 2014), the Court held the Fourth Amendment to the U.S. Constitution was not violated and, therefore, the traffic stop by a CHP law enforcement in which the officer searched the bed of a pickup truck and found about thirty pounds of marijuana was lawful since he had a reasonable suspicion of criminality, smelling marijuana and having a belief the driver was intoxicated.as a result of an anonymous tip given by a 911 caller.

The Dissenting opinion in this case captured the essence of the issue by writing a compelling summary stating all of us are at risk of losing our freedom of movement by an anonymous telephone tip such as this one regarding a reckless driver, whether true or false. Further, other opponents of these types of searches argue law enforcement should not be able to stop and search the public on an en masse basis. Criminal and constitutional lawyers maintain this Supreme Court opinion constitutes a further loss of our freedom to be secure from government intrusion.

Boston Bombing – A Fortuitous Event?

On the anniversary of the Boston Bombing, April 15, 2013 in which three innocent victims were killed and nearly 300 others were injured, many are asking whether this was a fortuitous event, or calculated killings by terrorists using weapons of mass destruction. Even more compelling is the surfacing of information that one of the bombers has been linked to a triple murder in 2011 in which three individuals had their throats sliced. These insights raise a question as to whether the bombings last year could have been prevented had even only one of the radical extremists been arrested and convicted for the slayings in 2011.

Some commentators contend the government lacks the tools to prevent such horrific crimes to maintain the safety of our citizens. Others believe it may be politics and a lack of communication between agencies; they remind us of the 9/11 deaths they claim may have been prevented had the CIA and the FBI shared data bases and the substance of their respective investigations. The sad reality is that religious fanatics are rapidly increasing all over the world, and many in society are afraid to criticize under the veil of freedom of religion. Regardless how small in number they may be the fact remains the murders that have been committed have changed the way far too many people all over the world now have to live. Few will take issue with the fact we need to do more for the family members of those killed, other survivors and first responders, and to pay tribute to each and every one of them.No one disputes that we need to put a stop to senseless carnage.

Senate Committee Approves Eliminating and Reducing Certain Criminal Sentences

On January 30, 2014, the Senate Judiciary Committee approved a bill that would abolish mandatory minimum sentences for drug offenders who do not have a prior criminal history, as well as reducing by 50% mandatory minimum sentences for specified nonviolent drug offenses. The proposed law among other things eliminates mandatory minimum sentences if there is a finding by the Judge that the defendant does not have any previous conviction for crimes involving a firearm, violence, terrorism, a sex offense, racketeering or conspiracy involving illegal drugs. It would also reduce mandatory minimum sentences from 20 to 10 years, from 10 to five years, and from five to two years. There would be no change lowering the maximum sentence.

Opponents believe this law could result in prosecutors being unable to curtail gangs and drug organizations (drug cartels, etc.). Moreover, it is argued that there are very few criminals in federal prison for only simple drug possession, and the rest are mainly drug dealers that are the subject of the bill.

Proponents site the overcrowding and excessive costs of our Federal prisons, the latter estimate being as much as $3 billion over 10 years. They also claim the current laws do not sufficiently distinguish career criminals from low level offenders, and further that nonviolent drug offenses only would be the subject of the new law if it is passed by the full Senate, and goes through the rest of the process in which new laws are made.

Former BP Engineer Convicted of Obstructing Justice

In New Orleans today, there was a jury verdict after the U.S. Department of Justice charged Kurt Mix, a former BP engineer, of deleting hundreds of text messages from his iPhone, thereby thwarting the investigation of the 2010 BP oil spill in the Gulf of Mexico.

Although none of the top executives of BP have been charged with crimes, this corporate entity acknowledged its responsibility earlier this year by pleading guilty to manslaughter charges for the deaths of 11 workers; and thereafter, BP agreed to pay $4 billion in penalties.

Mix was part of the team of experts involved in the efforts by BP to stop oil from gushing out of their blown-out well using a technique called “top kill.” He had access to internal data about how much oil was actually flowing from the blown-out well. It was reported that Mix received 10 individual BP notices that he was obligated to preserve all of his spill-related records. One of the texts messages was an exchange with his supervisor in which Mix estimated there were about 630,000 gallons of oil spilling per day; this amount was actually about three times greater than the estimate BP disclosed to the public at the time. By deleting text messages, the BP engineer was destroying inculpatory evidence, which would be critical proof that would tend to establish guilt of BP and its agents and employees.

 The sentencing hearing is set for March 26, 2014, and Mix faces up to 20 years in prison for this conviction.

Los Angeles County Deputy Sheriffs Charged with Corruption and Civil Rights Violations

Charges were filed yesterday that involve approximately 17 current and 2 former deputies who have been accused of beating inmates and visitors, falsifying reports, as well as obstructing justice, conspiracy and corruption. The criminal complaint and grand jury indictments contain, among other charges against the deputies, allegations that records were falsified, visitors to and inmates at the L.A. County Jail were unlawfully detained and excessive force was imposed. One of those charged was a Lieutenant who oversaw the safe jails program and another Lieutenant was responsible for investigating allegations of crimes committed by sheriff’s personnel. Three deputies were also accused of mortgage fraud.

The U.S. Attorney said “These incidents…. demonstrated behavior that had become institutionalized [and] shows how some members of the Sheriff’s Department considered themselves to be above the law.”

County Sheriff Lee Baca said he has made improvements to the Men’s Central Jail, such as a newly hired head of custody, reorganizing the command staff, and to create a database to track inmate complaints.

The fact remains that while there have been enhancements and changes to the L.A. County jails, and they have been under scrutiny for brutality and corruption, the ongoing investigations seem to have taken far too long to rise to the level for charges to be ultimately filed.

Did San Diego Sheriffs Use Excessive Force When They Killed a Suicidal Suspect?

On December 2, 2013, the 9th Circuit Court of Appeals in the case of CHELSEY HAYES V. COUNTY OF SAN DIEGO, Case #09-55644 , heard this civil rights Complaint brought under the Federal statute 42 U.S.C. § 1983 and California law wherein a minor daughter alleged violations of her 14th and 4th Amendment rights and her deceased father’s 4th Amendment rights when San Diego County Sheriff’s deputies acted negligently in shooting and killing her father who allegedly was suicidal and wielding a knife during a response to a domestic violence call.

 In the underlying case, the Court said there was no evidence the sheriff’s fired their guns for any other purpose than self-defense and, therefore affirmed the District Court’s Decision by declaring there was no violation of plaintiff’s rights under the 14th Amendment. On the other hand, the Court reversed the lower Court after it determined a jury could conclude the use of deadly force by the sheriffs was not objectively reasonable and that under California law supported a basis for a wrongful death claim.

A compelling argument was made on behalf of Hayes that the sheriffs could have avoided the incident by obtaining more information about the suspect or requesting a psychiatric emergency response team (“PERT”) when the first deputy responded to a domestic violence call at a neighbor’s house and learned there had been no physical altercation, and before the second deputy arrived and they both entered the home. At that point it became a matter of whether the officers used excessive force.

The above reported Decision can be found at the following link: http://cdn.ca9.uscourts.gov/datastore/opinions/2013/12/02/09-55644.pdf