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a majority of all votes which would be over 50%) wanted to abolish the death penalty and, therefore, voted that it be repealed.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.

 

National City father of injured baby arrested on abuse charges

A man has been arrested for child abuse after police discovered the man’s baby had fractured rigs and bleeding on the brain. The 5-month-old was taken to the hospital by paramedics after someone reported the child was having difficulty breathing and was possibly having a seizure.

At the hospital, doctors discovered numerous rib fractures and several injuries on the brain that led to bleeding. Police in National City went back to the home and arrested the father after interviewing both parents. He has been booked into jail on felony child abuse charges.

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.

Cops Bust Meth Operation at “Party House”

An illegal drug operation in San Diego has resulted in the arrest of 16 people. San Diego police discovered large amounts of methamphetamine at a location known as a “party house”, according to one neighbor.

The neighbor reported having seen a cluster of people frequenting the area. Prior to this raid, several other individuals were arrested. Those prior arrests led investigators to this City Heights home. All of the suspects were arrested for possession of illegal drugs, including methamphetamine.

 

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.

US Atty: Former San Diego Mayor Maureen O’Connor misappropriated funds

“San Diego Channel 10 online ABC News affiliate on February 14, 2013 reported that 66 year old Maureen O’Connor, former San Diego Mayor for two terms from 1986 to 1992, is currently charged with money laundering as a result of a cash transaction of $10,000 or more.

Of note is the fact O’Connor was the first female mayor for San Diego. Her previous professional career spanned over a decade in various positions teaching physical education, as well as a member of the San Diego City Council and Unified Port District Commission. She is also widely known to have married the founder of Jack-In-The-Box fast-food chain, Robert O. Peterson, who also founded Southern California First National Bank, which eventually was purchased by Union Bank. In 1994, her husband died.

The article also revealed the ex-Mayor sold a luxury Heritage House resort for $19.5 million, she later sued the bank that provided financing for the buyers, and in 2010 sold her La Jolla home for $2.5 million, which is now owned by Mitt Romney, 2012 former Republican nominee for president. According to the U-T San Diego, it was a short sale and the county reassessed the property at a $4.5 million soon after the purchase.

The article did not report an interview with the attorney for the former Mayor so it is not immediately clear what defense has been argued nor mitigating facts and evidence, if any. Although O’Connor could be sentenced for up to 10 years in prison and often prosecutors seek to set an example in these cases to deter others from money laundering, a maximum penalty is unlikely as the article referenced a possible and existing plea deal or settlement in Federal Court.”

–Sam Spital

 

Sacramento caregiver arrested in death of 88-year-old

Commentary by Sam Spital, Criminal Defense, Personal Injury, Professional & Occupational Licensing Attorney:

“On February 13, 2013, the Modesto Bee newspaper and electronic edition published an article in which Silvia Cata, the 52 year old owner of a long-term nursing care facility, Super Home Care, in Sacramento, was arrested for multiple criminal charges, including involuntary manslaughter and felony elder abuse against Georgia Holzmeister, an 88 year old patient who was suffering from Dementia that died as a result of reckless disregard of the basic duties in caring for patients. It was revealed that the victim suffered from blackened, Stage IV pressure sores on her buttocks causing sepsis, which is a life-threatening condition that occurs when any part of one’s body develops a toxic and severe response to bacteria or other germs. These are more commonly called pressure sores that form when patients are allowed to lie in one position for extended periods of time or simply not given the proper attention that requires their body to be frequently rotated while confined to bed.

It is an elementary principal of nursing care that patients should not be permitted to lie in bed for any extended length of time without being taken out of bed, taken to the bathroom, use walkers or wheelchairs if not ambulatory,  and of course receive regular care and attention. Unfortunately, some long term care facilities operate on a very low budget due to the nominal reimbursement from Medicare and Medi-Cal; yet, this is inexcusable and the Administrators and nursing personnel have an ethical, moral and legal responsibility to place the patient above the financial remuneration they may receive. If it is not possible to make a profit and do the right thing for their patients, the facility should close its operations. In this case, the California Department of Social Services (DSS) ordered an involuntary closure pursuant to an interim suspension order according to the article.

A Deputy Attorney General will be prosecuting the case for the California Bureau of Medi-Cal Fraud, and the defendant faces up to 12 years in state prison. The author of the article did not provide any details or information regarding the number and licensure of employees of the facility, the census of the facility in question, prior employment or business history of the defendant nor indicate whether contact was made with defense lawyers that handle such cases. It appears this is the first manslaughter criminal case in California that has been filed against an owner of a nursing facility. The case has been reported in countless print and electronic media due to the gravity of the situation.

The following link: http://www.cdph.ca.gov/certlic/occupations/Documents/NursingHomeAdministratorAct.pdf provides a detailed outline and summary of the Nursing Home Administrator Act and the rules and regulations that govern Administrators. No Nursing Home Administrator license or Certified Nurse Assistant license could be found by my law firm in searching the online data for Sylvia Cata, the defendant in this criminal case.  A search of the BRN and BVNPT websites also failed to show an LVN or RN license issued to Ms. Cata.

Family members will likely file a wrongful death lawsuit against the long term care facility as well as the owner, and any of the employees and personnel who were negligent and caused the deadly injuries in the case at hand. This may also include the attending physician, nurses, and anyone that may have billed Medi-Cal and Medicare (such as a physical therapist, podiatrist, occupational therapist, etc. if any of these health care providers were in attendance on one or more days in the period of time leading up to the death of Ms. Holzmeister).

Defense counsel will need to perform a thorough and exhaustive investigation including conferring with the employees of the facility; patients and family members; pharmacists and doctors; utilize forensic experts to develop a defense; and in launching an offense seek to establish compelling mitigating facts and circumstances.”

–Sam Spital

 

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