California Death Penalty. Vote November 8th

There are two measures  that deal with the death penalty in California that are on the ballot in the forthcoming November 8th election. California has the largest number of inmates awaiting the death penalty of all the states. The last execution in California was about ten years ago when it was legally challenged because of a claim, among other things, that the process of using lethal injections was inhumane. The last attempt to abolish the death penalty occurred in 2012.

The first measure on the ballot is Proposition 62, which replaces the death penalty with life in prison without any possibility of parole and applies retroactively to all previous and existing cases in which anyone is currently incarcerated and facing the death penalty. If enacted into law, it will [also] apply to all future first degree murder convictions in which the death penalty would have been the sentence. In September of this year, a Field poll was conducted of likely voters and found that a plurality of voters (the most posted online votes, but not a majority of all votes which would be over 50%) wanted to abolish the death penalty and, therefore, voted that it be repealed. It is noteworthy that there were a substantial number of “undecided” voters, however,  and they will likely make the difference in the outcome on November 8th.

Those that oppose the death penalty cite, among other things, the following reasons: it is unfairly applied to minorities, the procedure is inhumane, and the process is costing far too much to the people of the State of California. Proponents of execution as the form of punishment assert this penalty is reserved for what can best be described as a most heinous and despicable crime against humanity, causing unparalleled and life long suffering to the families of such victims; and, there are newly developed procedures associated with death penalty cases that are being considered.

The second measure on the ballot, Proposition 66, is considered a competing measure and much different than Proposition 62 in that it speeds up executions and the death penalty process by requiring the outcome of a defendant’s appeal to not take more than five (5) years. A little over 1/3 of those in the Field poll noted above were in favor of this Proposition, but more importantly, about 42% of those who were polled were “undecided” and will indeed make a difference in the outcome of this Proposition.

To promote justice for whom they claim at this point in time are at least 1000 victims and their families, there are District Attorneys in the multitude of California counties, the California Highway Patrol Association and Peace Officers Association, along with victim advocates who are among those behind Proposition 66 declaring it to be much needed. The Office of the California Legislative Analyst reported when it last made a study it costs nearly $50,000 per year per inmate to be incarcerated in our State Prisons. The cost of a death row inmate is about $90,000 more per year due to the costs of lengthy and complex appeals to the California Supreme Court, which currently has a backlog that can take ten or more years for a ruling.

Today, there are about 750 Death Row inmates that for decades have been incarcerated in prisons. Proponents of Proposition 66 also note such inmates get three meals a day in state prisons that have heating and air conditioning; with access to cable TV and a library; and each receive nearly unlimited heath care, including but not limited to eyeglasses; dental care; hearing aids; hip, kidney, knee, heart and sex change surgery, all of which are often far better than most of us who do not get free health care, including senior citizens who often cannot afford the escalating cost of living, prescription medicine and/or a satisfactory long term care facility. In summary, these are stated as further grounds to support Proposition 66 and limit the current delays and streamline the criminal justice system in California.

If both measures were to pass on November 8th, then the one with the greatest number of votes will become law in California.

You are urged to vote on these and other critical issues that concern all of us in the forthcoming election.

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.

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

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).

What To Do If You Get A Call or Letter From The Government?

If you receive a telephone call or a letter from the Government, it is extremely important that you obtain experienced legal counsel at once. It may be possible to “nip it in the bud” during the pre-file and/or investigative stage. This is why it’s so important to seek legal advice in the early stages of a case. Do not be naïve to think you can handle it yourself and/or any lawyer can do so on your behalf.

Some lawyers handle a huge caseload, have their junior associates and paralegals perform the work, and may be best described as an assembly line or cookie cutter law firm. You deserve an attorney who will prepare a proper strategy that is accompanied by comprehensive written legal and factual arguments that address the issues.

It is noteworthy that there are several possible outcomes of an investigation, including the following:

1. Closed, the complaint is found to be “unsubstantiated;”
2. Closed, the complaint is found to be “inconclusive;”
3. Closed, the complaint is found to have merit but insufficient evidence to prosecute given the burden of proof and likelihood of prevailing;
4. Closed, an investigative fine is imposed;
5. Referred to the local District Attorney, referred to the State of California Attorney General for the filing of an Accusation, civil complaint and/or an Interim Suspension Order, referred to the U.S. Attorney, local City Attorney, or other Legal Division for prosecution;
6. Referred for issuance of a citation; and/or
7. Referred to another law enforcement agency for prosecution.

How important are the following? Your career! Your personal and professional image and reputation! Your credibility! Your ability to maintain your current and/or have the opportunity to obtain future employment!

If an investigation is opened against you, is the number one priority the cost of your defense? However, does it make sense that the reason a lawyer may charge less is to do less? Is it likely a cut-rate attorney charges a lesser amount because (s)he handles a large volume of cases and, therefore, your expectation of personal service and winning results may be unfulfilled? Is it sufficient for you if the attorney does the obvious and no better than an “ok” job? Do you prefer quality, passion and a dedicated lawyer who is extremely motivated to win, works harder and seeks to go beyond the minimum, with a strategy for a compelling defense and offense? Do you want a lawyer with consistent winning results or are you willing to gamble on the outcome?

When you receive a call, visit or letter from an investigator, consider each of these factors when selecting a lawyer with a proven record and one who will truly fight for you. Remember, the investigator has the government on his/her side with superb lawyers to prosecute their cases and you deserve to have a formidable and premier attorney on your side, and to level the playing field.

Unintended Consequences of Criminal Offenders Being Transferred from State Prison to County Jail

The growing population of over 150,000 inmates in state prisons in California has exceeded the level the U.S. Supreme Court opined in 2011 is permissible. There has been litigation in Federal Court to obtain a more speedy reduction of the state prison population, and a new law has been enacted as a result of the Governor and Legislature in California establishing the state’s prison realignment; this is the name given to transferring inmates to county jails to reduce the state prison population to about 110,000. A Federal three-judge court previously set June, 2013 as the deadline for California to reduce by over 37% its state prison population beyond each prison’s building capacity. The date was recently extended to February, 2016.  This narrative has been based upon the perceived challenge of the State of California to provide adequate health care to inmates.

The Federal Court allowed this additional period of time subject to transferring state prisoners to private correctional centers and county jails in California, but not any longer to out of state facilities. This was also based upon, among other reasons, the representation of Governor Brown that shorter sentences would be imposed on non-violent criminals; issuing additional good behavior credits to prisoners so they could be eligible for an earlier release; speeding up and expanding early parole for those over 65 years of age with at least 25 years in prison; along with those who are medically incapacitated, as well as expanding the rehabilitation programs provided to inmates.

The problem is not simply the transfer of inmates to County Jails, but now the local detention facilities statewide are overcrowded. Moreover, it has been alleged there is an even greater conundrum in that far more sophisticated criminals are now incarcerated in County Jails.  For example, the San Diego County Sheriff’s Department that oversees the jails in this County has reported there has been an increased number of drugs being smuggled into the jails; this drug trade that previously was typical of state prisons has now become a serious problem in county jails.  It has been reported there were 221 of these drug and alcohol cases in the San Diego County Jails in 2012, which constitutes over a 50% increase from that in 2011. There was a total of 279 of such cases in 2013, and about 335 of these particular cases between January and September, 2014.

To better address one of  these problems, San Diego has installed body scanners at a cost of $150, 000 each unit and $10,000 each year to provide service and maintenance. This month, the County Board of Supervisors also approved spending more than three-quarters of a million dollars to obtain four additional scanners and for a five year maintenance agreement. Besides visitors hiding contraband, some of those picked up for minor probation and parole violations have been smuggling drugs into the jails, as they may only be incarcerated for up to 10 days.

But what is the best solution? Clearly, we need to implement greater rehabilitation and educational programs. For the most part, we are spending the money to incarcerate people who are addicted to alcohol and drugs, have a mental illness and/or do not have sufficient education and labor skills, when rehabilitation will have a far greater impact on this growing societal problem. Many advocates believe it can help to let local and state legislators know our political views, and of course, to become more involved in community programs.

 

 

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.