In California, felony sentencing is governed by complex laws that take into account various factors such as the nature of the crime, the defendant's criminal history, and specific sentencing guidelines. Here's a brief summary of how felony sentencing works in California: California utilizes determinate and indeterminate sentencing depending on the nature of the offense and the defendant's criminal history:
Sentencing Factors Several factors influence the length and type of sentence imposed:
Three Strikes LawCalifornia's "Three Strikes" law mandates harsher sentences for individuals convicted of a felony who have previous serious or violent felony convictions. A third strike can result in a sentence of 25 years to life, even for non-violent felonies. Probation and Alternative SentencingIn some cases, instead of prison time, the court may grant probation or alternative sentencing options like community service, drug rehabilitation programs, or electronic monitoring. These alternatives aim to rehabilitate the offender while reducing prison overcrowding. Recent Reforms and Considerations Based on various and numerous studies and report (example here) ecent legislative changes in California have focused on reducing mass incarceration and addressing disparities in sentencing. Efforts include reevaluating mandatory minimums and expanding eligibility for parole and early release programs. Conclusion California's felony sentencing laws are designed to balance punishment with rehabilitation and public safety considerations. The system incorporates both determinate and indeterminate sentencing based on the severity of the crime and the defendant's criminal history. While there is a focus on punitive measures, there are also provisions for probation and alternative sentencing aimed at reducing recidivism and integrating offenders back into society. As the legal landscape evolves, ongoing reforms seek to achieve a more equitable and effective approach to felony sentencing in the state. If you need a lawyer, contact Devina here. In California, the bail system serves as a crucial component of the criminal justice process, allowing individuals accused of crimes to secure their release from custody while awaiting trial. Bail laws in California are governed by various state statutes and are designed to balance public safety concerns with the constitutional rights of the accused, particularly the right to be considered innocent until proven guilty.
Bail Basics:Definition of Bail: Bail is the monetary amount set by a court that a defendant must pay to be released from custody pending trial. It serves as a form of security to ensure the defendant's appearance at all court proceedings. Types of Bail:
Recent Changes and Reforms:California has undergone significant bail reform efforts aimed at reducing reliance on cash bail and addressing disparities in the criminal justice system. In 2018, Senate Bill 10 was signed into law but was later suspended due to a voter referendum. The law aimed to replace cash bail with a risk assessment system to determine whether defendants should be released pretrial. California continues to debate and implement reforms to the bail system, with a focus on alternatives to cash bail that consider the defendant's risk to public safety and flight risk rather than their ability to pay. Despite efforts at reform, California's bail system has faced criticism for perpetuating inequality, as defendants unable to pay bail may spend extended periods in jail awaiting trial, impacting their employment, housing, and family stability. Critics argue that cash bail disproportionately affects low-income and minority defendants. The bail process in California is a complex system designed to balance the rights of the accused with public safety concerns. While recent reforms aim to address issues of fairness and equality, challenges remain in ensuring a system that is both effective and equitable for all defendants. As California continues to navigate these issues, ongoing debate and reform efforts seek to improve the pretrial process and reduce disparities within the criminal justice system. In California, obtaining a civil harassment restraining order (CHRO) is a legal process designed to protect individuals from harassment, threats, violence, or other forms of abuse inflicted by another person. Here’s a detailed summary of how one can pursue a CHRO in California, as determined by California Civil Code 527.6:
Understanding Civil HarassmentCivil harassment occurs when someone harasses, threatens, stalks, or commits acts of violence against you, causing substantial emotional distress or fear for your safety. It typically involves behavior that is not connected to a close familial or intimate relationship, such as neighbors, coworkers, or strangers. Eligibility to Seek a CHROTo seek a civil harassment restraining order in California, you must meet specific eligibility criteria:
2. Court ReviewAfter filing your request, a judge will review your petition and decide whether to issue a temporary restraining order (TRO) based on the information provided. A TRO can provide immediate protection until a hearing is held to determine whether a permanent restraining order is necessary. 3. Serving the RespondentOnce the TRO is issued, the next step involves serving a copy of the order and the court hearing date to the person you are seeking protection from (the respondent). This ensures they are aware of the legal proceedings and have an opportunity to respond in court. 4. Court HearingA hearing will be scheduled where both you (the petitioner) and the respondent can present evidence, witnesses, and arguments to support your respective cases. It’s crucial to gather any relevant documentation, such as police reports, witness statements, or records of communication, to substantiate your claims of harassment. 5. Judge’s DecisionBased on the evidence presented and California state law, the judge will decide whether to grant a permanent civil harassment restraining order. If granted, the order typically remains in effect for up to five years and can be renewed if necessary. Key Considerations and Legal Standards
ConclusionObtaining a civil harassment restraining order in California involves a structured legal process aimed at protecting individuals from harassment, threats, or violence perpetrated by others. By following the necessary steps, gathering evidence, and presenting your case effectively in court, you can seek the legal protection necessary to ensure your safety and peace of mind. Understanding your rights and responsibilities during this process is essential for a successful outcome in obtaining a CHRO. Rueter's Super Lawyer program recognizes top legal professionals annually based on peer nominations and evaluations. Lawyers undergo rigorous assessments by an independent research team, evaluating criteria such as professional achievement and peer recognition. Those selected demonstrate exceptional legal skill and ethical standards. Being designated a Rueter's Super Lawyer indicates significant respect from peers and confirms excellence in the legal field.
Devina Douglas is proud to announce that she was recognized as a Super Lawyer's Rising Star for the 2nd year this year. Her first award was received in 2023.
While the authors of a recent bill note that it is difficult to find comprehensive, up-to-date statistics on the prevalence of drink-spiking/drugging, various state officials and police departments from across the country have stated that it is a problem that needs to be addressed. “Date rape drugs” can cause disorientation, confusion, and temporary paralysis or loss of consciousness—meant to make a person’s potential victim vulnerable—and are substances such as flunitrazepam, ketamine, and gamma hydroxybutyric acid. According to the author's office, "the underreported epidemic of drink spiking is often used to facilitate the commission of other crimes, such as sexual assault and rape. While anyone can have their drink spiked, the targets of this act are all too often women. Although drink spiking can be perpetrated in almost any setting, a common location for this activity to take place is at bars or night clubs, where alcoholic beverages are being served.” Under AB 1013, which took effect 7/1/24, establishments must provide kits that can detect these substances. The program will be administered by the Department of Alcoholic Beverage Control (ABC), and non-compliance could affect a licensee’s ability to obtain/maintain their license to sell alcohol. Licensees are responsible to purchasing the kits, and are then free to either give the tests away, or charge “a price not to exceed a reasonable amount based on the wholesale cost.” The bill follows a test program in Long Beach that provided residents with a free test strip that could be used identify specific “date rape” drugs in a beverage. The new law also requires bars to display a prominently placed sign stating: “Don’t get roofied! Drink spiking drug test kits available here. Ask a staff member for details.” Two new laws have gone into effect today which affect the purchase of firearms in CA. The first of these is AB-28 which establishes the California Violence Intervention and Prevention (CalVIP) Grant Program, administered by the Board of State and Community Corrections, to award competitive grants for the purpose of violence intervention and prevention. The author of the bill states that "Californians are counting on us to do everything possible to keep them safe from mass shootings and gun violence. AB 28 is a common-sense measure that will fund school safety measures and gun violence prevention programs that have proven to be some of the most effective ways of stopping gun violence. A modest tax will provide us with a permanent, sustainable funding source for these essential programs and help protect communities across our state."
While the author calls the tax “modest” the reality is that the new law imposes an 11% tax on the gross receipts from the retail sale of a firearm, firearm precursor part, and ammunition. The money, one collected will be distributed as follows: · The first $75 million will be annually allocated to the Board of State and Community Corrections (BSCC) to fund CalVIP Grants and administration and evaluations of CalVIP-supported programs. · The next $50 million will be annually allocated to the State Department of Education to fund school mental health and behavioral services and school safety measures, and for physical security safety assessments. · The next $15 million will be annually allocated to the Judicial Council to support a court-based firearm relinquishment grant program to ensure the consistent and safe removal of firearms from individuals who become prohibited from owning or possessing firearms and ammunition because of a court order such as a domestic violence restraining order, gun violence restraining order, civil harassment restraining order, or workplace violence restraining order. · The next $15 million will be annually allocated to DOJ for a justice “for victims of gun violence program to support evidence-based activities to equitably improve investigations and clearance rates in firearm homicide and firearm assault investigations in communities disproportionately impacted by firearm homicides and firearm assaults.” As expected, the bill faced opposition from gun-rights ground such as the California Rifle & Pistol Association, which asserted "All of California's law-abiding citizens benefit from efforts to implement programs which remediate the impacts of illegal gun violence upon our public, and all should equally help to fund their implementation. Yet, AB 28 would unjustifiably place the entire burden of funding efforts to address illegal gun violence on the backs of law-abiding citizens who legally purchase and lawfully use firearms and ammunition.” They continued "Additionally, by substantially raising the cost of purchasing a firearm and ammunition in California, AB 28 would disproportionately impact the ability of economically disadvantaged communities and individuals to legally purchase a firearm and ammunition to protect themselves and their loved ones. Further, AB 28 would impede their equitable access to hunting and shooting sports – at a time when the Administration and the Legislature are seeking to increase participation in outdoor recreation and access for all Californians.” The second law which went in effect today was AB 1587 which required credit card payment networks to create a unique identifying code for gun and ammunition retailers so that transactions can be better tracked. All credit card processing networks use these credit codes to designate the type of goods or services a merchant sells allowing as to help with tax compliance, to establish the interchange rate, or to pay rewards to cardholders for certain types of expenditures. The author wrote "This bill is simple. It would mandate that banks and credit card companies utilize this life saving tool and attach the MCC code to California businesses that have, or are expected to have the highest sales volume, of firearms, firearms accessories, or ammunition. This is consistent with how other MCC codes are used for all other businesses in California, all over the country and all around the world. This will allow financial institutions to identify and report to law enforcement known patterns that are highly suggestive of illegal firearms trafficking — such as repetitive purchases at the same gun store or purchases at multiple gun stores with corresponding cash deposits supplying them with a critical tool to interrupt trafficking rings that flood our communities with guns and violence. This is how we can stop gun violence BEFORE it happens." However those opposed claim that as a result of this bill’s passage, the "DOJ will gain no new data that it does not already possess in the status quo through firearms and ammunition purchases. Given the fact that MCCs will not provide any additional information to solve crimes, it appears that the intent is focused on placing law-abiding citizens in harm’s way. Imagine a parent supporting their child by making a purchase of shotgun ammunition for competitive shooting at the range and having a completely unwarranted visitation by DOJ agents for doing nothing illegal." A lot of good folks do a lot of bad things when they feel they have no choice. While most attornies hate giving out free legal advice, I'm going to hand some out here and now. DO NOT do what these people did:
Recently, the Cal. Dept of Fish and Game has become a major player in the State’s efforts to shut down illegal marijuana grows. Below is an excerpt from the News section of their website:
"Building upon the momentum in Q1 2023, the Unified Cannabis Enforcement Taskforce (UCETF) seized more than $109 million in illegal cannabis in Q2 2023. This total represents a 104 percent increase from the $52 million in unlicensed cannabis and cannabis products in Q1 2023. Additional highlights from the period April 1, 2023, through June 30, 2023, include a 130 percent gain in the number of plants eradicated and a 375 percent increase in the number of firearms seized. The complete details of UCETF’s Q2 2023 results are listed below. 'This well-orchestrated taskforce continues to reach new heights on shutting down a variety of illicit operations that range from dispensaries to indoor grow houses to outdoor cultivations sites among other facets in the illegal supply chain,” said David Bess, Chief of Enforcement for the California Department of Fish and Wildlife (CDFW). “These enforcement numbers speak volumes on the dedication, perseverance, and organization of this multiagency taskforce. I could not be prouder of what we are accomplishing as a team.' 'Our enforcement efforts are becoming increasingly diversified along the illegal cannabis supply chain as we served warrants on several unlicensed dispensaries in this quarter in addition to unlicensed cultivation operations,” stated Bill Jones, Chief of the Law Enforcement Division for DCC. “As the taskforce continues to evolve and the combined resources of our partners plays an even greater role in our operations, we will be disrupting the illegal market at several different points along their supply chain.'" The website reports (comparing Q1 and Q2 of 2023,) a 338% increase in the number of warrants served, 108% increase in the number of pounds of marijuana seized, and a 1776% increase in the amount of money seized. Really makes you wonder what Fish and Wildlife's real interests are if, based on executing over 3 times as many warrants and seizing approximately the same amount of marijuana, they end up collecting nearly 18 times the amount of money which will likely have to be forfeited from citizens. The full article can be found here. In 2016, Proposition 64, and in 2018, AB 1793, told Californians that the records of low-level marijuana-related arrests and convictions would be automatically sealed in light of the fact that cannabis was now legal under state law, allowing people to move on with their lives without serving the life sentence of dealing with the collateral consequences which often result from having a criminal history. While AB 1793 required the automatic sealing of cannabis records, the records of tens of thousands throughout the state have not yet been sealed.
In a state where more than 12,000 cannabis licenses have been issued, California has a moral and economic imperative to not leave tens of thousands of residents with cannabis criminal records behind, especially those people of color, disproportionately targeted by the War on Drugs. Data suggests that many who are eligible for resentencing or redesignation are unaware of the process established by the initiative, or lack the resources to navigate the process on their own. To address this, AB 1793, created an automatic process for certain marijuana-related convictions, and established the following deadlines:
Unfortunately, neither Proposition 64 nor AB 1793 set forth a deadline by which local courts needed to process the challenges, nor did they include a deadline for the DOJ to update its criminal record database. According to an investigation by the Los Angeles Times, there are at least 34,000 cannabis-related records that still have not been fully processed by the courts, despite the long-passed January 1, 2020 deadline.[1] Following the passage of AB 1706 this past year, all convictions eligible for relief under Proposition 64 that have not been challenged by the prosecution as unchallenged are deemed recalled, dismissed and/or redesignated, as applicable. This bill would establish a deadline of March 1, 2023 for the courts, on their own accord, to automatically resentence or redesignate all eligible convictions, in cases where the prosecution did not file a challenge by the original January 1, 2020 deadline. This bill further requires that the courts update their records and report all convictions that have been recalled and redesignated to the DOJ by March 1, 2023, and requires the DOJ update its records in the state summary criminal history database by no later than July 1, 2023. With any luck, this will help thousands through the state move on with their lives in a more productive manner. If you need help with any pending drug-related charge in the North Bay, reach out to Devina here. _______ [1] The Truth About California’s Promise To Clear Marijuana Convictions, Los Angeles Times. In California, manslaughter is the unlawful killing of a human being without malice[1] and is divided into three kinds: voluntary, involuntary and vehicular. For the purposes of this article, we’re going to focus on this last type: vehicular.
There are three general ways a person could commit the crime of vehicular manslaughter:
Under a change in the law, effective January 2023, meant to curb dangerous driving activity, for the purposes of determining whether an act constitutes vehicular manslaughter, “gross negligence” includes: (1) Participating in a sideshow, (2) an exhibition of speed,[5] and (3) speeding over 100 miles per hour. This change comes on the heels of the California Highway Patrol launching the Communities Against Racing and Side Shows campaign in October 2020, a campaign focusing on statewide public awareness campaigns on speed-related crashes and focused enforcement. According to the Department of the California Highway Patrol, in 2021, CHP responded to almost 6,000 street races and sideshows, issuing 2,500 citations statewide, making 87 arrests, and recovering 17 firearms. As illegal street racing becomes a more prevalent problem statewide, the National Highway Traffic Safety Association (NHTSA) has reported that these type of dangerous driving activity are often associated with other risky behavior including driving under the influence of drugs or alcohol and driving without a seatbelt, and there is a strong link between most fatal crashes and risky driving. As indicated by the legislature when the bill underlying this change in the law was introduced, there is a feeling that “repeat reckless driving and excessive speeding offenders fail to see the potential consequences of their actions and do not believe their behavior possess a threat to those around them, feeling instead they have everything under control, until their reckless behavior turns their vehicle into a deadly weapon ‘accidentally’ harming other motorists and pedestrians.” So if you’re thinking of taking part in sideshows, be aware! If you have been charged with a crime related to sideshow activity and would like to speak with Devina regarding representation, feel free to reach out to her here. [1] Malice can be express or implied. (Pen. Code § 188.) It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart. [2] This is punishable by a wobbler with up to one year in county jail or state prison for two, four, or six years. [3] This is punishable by imprisonment in the county jail by not more than one year. [4] This is punishable by imprisonment in the state prison for four, six or 10 years. [5] This includes burning out tires, revving engines, circling, and other activity intended for an audience or “sideshow” that ultimately leads to a speed contest. Anyone who knows me, knows I think that having a pet can do wonders for your mental health. What’s why I am happy to report that the legislature has specifically expanded the crime of “theft of dogs” to now include the theft of any “Companion Animal.”
According to the Humane Society of the United States, "the exact number of stolen or ransomed animals per year is unknown, as reporting to law enforcement is inconsistent. For the incidents that are reported, there is no national system to compile the data. However, the Animal Legal Defense fund estimates 2 million pets are stolen on average each year in the United States.” Prior to this change in the law, Penal Code 491 specifically addressed the fact that dogs were “personal property” and thus the act of stealing them constituted the crime of theft.[1] The legislature has now clarified that stealing any companion animal is theft, defining "companion animal" as an animal that a person keeps or provides care for as a household pet or for the purpose of companionship, emotional support, service, or protection." Excluded from being a “companion animal,” however, are “feral cats” which are “a cat without owner identification of any kind whose usual and consistent temperament is extreme fear and resistance to contact with people. In short, a feral cat is totally unsocialized to people.” (Food & Ag. Code §31752.5.) [1] Pen. Code §484 states that every person who steals, takes, carries, leads, or drives away the personal property of another, or who fraudulently appropriates property which has been entrusted to them, or who knowingly and designedly, by any false or fraudulent representation or pretense, defrauds any other person of money, labor or real or personal property, is guilty of theft. Finally! A change in the law that we all can get behind. Perhaps there is no one law that is ignored by more people than the “crime” of jaywalking, but effective in 2024, that “crime” almost entirely goes away. Under what is being called the “Freedom to Walk Act,” law enforcement will not be allowed to ticket for Jaywalking-type infractions, unless there is immediate danger of a collision.
Of note, the law will state: “A peace officer … shall not stop a pedestrian for a violation of [certain infractions listed below] unless a reasonably careful person would realize there is an im-mediate danger of a collision with a moving vehicle or [specified] device.…” The infractions alluded to above are: • VC 21451(c) and (d), and VC 21955, which requires pedestrians to cross the street on a green light, using the crosswalk. • VC 21452 (b), which requires pedestrians to not enter the roadway on a yellow light. • VC 21453 (d) which prohibiuts pedestrians from entering the roadway on a red light. • VC 21456 (a)(1) to (a)(3), which requires compliance with the signage regarding the “Walk, “Walking Person,” “Don’t Walk,” “Wait,” or “Upraised Hand” signals • VC 21461.5, which requires pedestrians to obey signs and signals. • VC 21462 which requires pedestrians to obey applicable traffic signals, with exceptions. • VC 21950, which requires pedestrians to use due care, and prohibits (1) dangerous actions while in a crosswalk, and (2) unnecessarily stopping or delay traffic. • VC 21953, which requires pedestrians to yield to hazardous vehicles where there is a pedestrian tunnel or overhead. • VC 21954, which requires pedestrians on a roadway, other than within a crosswalk, at an intersection to yield to all vehicles that are an immediate hazard. VC 212956, which requires pedestrians to walk only close to the left-hand roadway edge • VC 21966, which prohibits pedestrians [from using a bicycle path where there is an adjacent pedestrian facility. Jury duty! A civic obligation most of us dread, but one that is sooo important to our system.
The Trial Jury Selection and Management Act. (Code Civ. Proc. § 190 et seq.) spells out the policy that California requires that people selected for jury service[1] be selected at random from the population of the area served by the court, and as relevant here, that all qualified persons have an equal opportunity to be considered for jury service. To that end, it is the responsibility of jury commissioners to manage all jury systems in an efficient, equitable, and cost-effective manner. To offset travel costs, the law states that jurors in the superior court, in civil and criminal cases, are to be reimbursed for mileage at the rate of $0.34 per mile for each mile actually traveled on the way to court after the first day, but effective Jan. 1, 2023, the legislature has increased the amount of travel reimbursement to which a juror is entitled by including all mileage actually traveled returning from court after the first day of service, and provides that all jurors and prospective jurors who have been summoned for jury service must be provided with public transit services at no cost utilizing either of the following options: either (a) a new or existing partnership between the court and a local public transit agency that provides no-cost service for jurors and prospective jurors, or (b) method of reimbursement established by the court to reimburse up to $12 in transit costs. (Of note, because it often comes up, the law provides that, unless a juror is employed by a public entity that pays a regular salary when an employee is serving on a jury, the fee for jurors in the superior court, in civil and criminal cases, is $15 a day for each day’s attendance as a juror after the first day.[2]) _____ [1] People selected for jury service are to be selected at random from sources inclusive of a representative cross section of the population of the area served by the court including, but not limited to, Department of Motor Vehicle records, voting rolls, tax filer lists, customer mailing lists, telephone directories, and utility company lists. (Code Civ. Proc. § 197.) [2] (Code Civ. Proc. § 215 (a).) Effective now, a substantial portion of the Government Code has been recodified make the Code more “user friendly.”
Under AB 474, about 420 changes were made to The California Public Records Act (CPRA), without changing the substance of the code. Since its enactment in 1968, the CPRA has been revised many times, in a somewhat piecemeal fashion. This has resulted in a statute that is poorly organized and cumbersome for members of the public to use and understand, impeding fulfillment of the goals underlying the CPRA. The rewritten and recodified CPRA, is divided into seven parts: Part 1, “General Provisions,” is §§ 7920.000 to 7920.545 Part 2, “Disclosure and Exemptions Generally, is §§ 7921.000 to 7922.210. Part 3, “Procedures and Related Matters,” is §§ 7922.505 to 7922.725. Part 4, “Enforcement,” [by “[seeking] injunctive or declarative relief, or … a writ of mandate.…”] is §§ 7923.000 to 7923.500. Part 5, “Specific Types of Records,” is §§ 7923.600 to 7929.610. Part 5, Ch. 1 is “Crimes, Weapons, and Law Enforcement.” Part 6, “Other Exemptions from Disclosure,” §§ 7930.000 to 7930.125. This “Secrecy Code,” lists, in alphabetical order, scores of specific exemptions. Part 7, GC 7931.000. This was done for several reasons, notably to:
Having trouble interpreting a statute that affects a criminal case in which you are involved? Contact Devina Douglas here. While not entirely relevant (yet) to California law, it's interesting to note that lawmakers in Washington State have introduced a bill which would lower the BAC limit for a DUI from 0.08 (which is the limit here in CA, too,) to 0.05.
To read more: see here. Old drug convictions are potentially no longer a bar to applying for a teaching credential under a new change in the law, effective now.
Prior to a change in the law this year, the Commission on Teacher Credentialing had to deny an application for a credential teaching credential or the renewal of a priorly-issued one for a person who has been convicted of certain drug offenses. After the passage of SB 731, the law now prohibits the record of convictions for possession of specified drugs that are more than 5 years old and for which relief was granted from going to the committee or from being used to deny a credential. Now, pursuant to Penal code 851.93, “A person is eligible for relief … if the arrest occurred on or after January 1, 1973, and [their case] meets any of the following conditions:
Greg Fleniken, a landman for the company he co-owned with his brother, traveled a lot for work. When his body was found on the floor of a locked hotel room, cigarette in hand, a small wound on his scrotum and rug-burn on his cheek, but no other signs of injury, the police were initially baffled. And after the autopsy, things got weirder. The medical examiner found damage to numerous internal organs and two broken ribs, the type of injuries consistent with being beaten or crushed, yet Fleniken didn't have a bruise to be found. Announcing that Fleniken probably bled internally to death just a few minutes as a result of these injuries, the medical examiner ruled the death a homicide.
The police began an investigation which uncovered the following facts:
The investigation seemed to hit a dead end. ...Until the family hired a PI. When the PI and the police returned to the hotel room, the PI noticed a small hole in the wall of the room, and later they discovered another corresponding hole in the wall of the adjacent room, patched up with toothpaste. When the police lined the two holes up, they reasoned that the holes might mark the trajectory of a bullet which had gone through the wall in the electricians’ room and exited in Fleniken’s. Using a laser, the police determined that a bullet on that trajectory would have struck Fleniken bed: the bed where he had likely been laying watching TV. This discovery led the police to start investigating the hotel neighbors that night, men who were coworkers, in town on electrician business unrelated to Fleniken's. With this new lead, the police followed up with the men who had been in the neighboring room that night. Two of the three men cooperated with the police and Fleniken's family finally got some answers. Apparently, the three men had all been drinking and when the alcohol in the room ran out, one man sent another down to his car to retrieve more alcohol and--for reasons unknown--his gun. When the second man returned with both items, the first took the gun, and playfully pointed the gun at the others, at which time the gun accidentally discharged, barely missing his friends. None of the men checked the room next door to see if the story bullet had caused any damage, opting instead, to head down to the hotel bar and pretend nothing had happened. ...But when one of them saw a gurney being rolled out of the hotel the next morning, they knew something had gone horrible wrong the previous night. The final conclusion reached by the police: while Fleniken was laying on the bed, the bullet came through the wall, hit him in the scrotum and then bounced around inside his body, ricocheting off his ribs shredding his internal organs, and causing massive internal bleeding. The shooter ultimately pled no contest to manslaughter, and was sentenced to 10 years in prison. On June 11, the Beerfest in Santa Rosa returned to the Luther Burbank Center after a 2-year hiatus following the COVID lockdowns. More than 40 breweries came out to share their beers, ciders and kombucha.
...And Devina was there to answer any questions the attendees had about DUIs, and defending against criminal charges of DUI. But while that sounds pretty boring, attendees also got to play the "Guess Your BAC" game. The high this year? 0.31. It was great to get out there to connect with folks before they became involved in the criminal justice system. In these times of increasing complaints against members of the law enforcement (LE) community, California is taking further measure to increase transparency, and help pluck out the “bad apples” within the that community through the passage of SB 2 late last year. This change in the law comes, perhaps, in large part in response to the number of stories of law enforcement gangs we’ve seen of late, with officers systematically taking advantage of their positions of authority. [1] While these gangs have been reported to be primarily located in the Greater LA area, such gangs have also been identified in Northern California.[2]
As part of holding law enforcement accountable, those who have felt wronged by law enforcement have long been eligible to file a civil lawsuit for damages under the “Tom Bane Civil Rights Act, which states that if a LE member, “whether or not acting under color of law,” interferes or attempts “to interfere, by threats, intimidation, or coercion, with the exercise or enjoyment of any rights secured by …[the law]” those injured are “authorized to bring a civil action for equitable relief and a civil penalty.”[3] That said, “public employees are not liable for injury caused by their instituting or prosecuting any judicial or administrative proceeding within the scope of their employment, even if they act maliciously and without probable cause.”[4] Further, there is also a lot of protection, shielding LE departments from such claims. For example, under the Government Claims Act, unless a statute provides otherwise, “a public entity is not liable for injury, whether such injury arises out of an act or omission of the public entity or a public employee.... However, a public entity is liable for injury proximately caused by an act or omission of an employee within the scope of their employment if the act or omission would otherwise have given rise to a cause of action against that employee.[5] So what can be done when bad officers are polluting the officer pool? Let’s go after LE Officers’ ability to actually be qualified to perform their jobs! Even prior to this change in law created via SB 2, both the Penal and Government Code required certain minimum training and moral character requirements for peace officers, and established some disqualifying factors for employment as a peace officer, such as having a felony conviction on their record. A large portion of this “minimum training” involved training and certification through the Commission on Peace Officer Standards and Training (POST,) which develops training courses and curriculum, and establishes a professional certificate program that awards different levels of certification based on training, education, experience, and other relevant prerequisites. While POST was allowed to cancel a certificate that was awarded in error or fraudulently obtained, it was prohibited from canceling or revoking a properly-issued certificate. …So it was hard to sue law enforcement, and even harder to get an officer fired. Out here in the civilian world, one of the problems many in the community faced in trying to seek justice following an encounter with an out of control LE officer involved trying to get the personnel records and other such records of potential misconduct as such records were considered confidential. In recognition of the need for more serious measures through which to hold law enforcement accountable, SB 2 now (1) requires POST to adopt a definition of “serious misconduct” to serve as the criteria to be considered for ineligibility for—or revocation of—certification, (2) grants POST the power to investigate and determine the fitness of any person to serve as a peace officer, and to audit any law enforcement agency that employs peace officers without cause at any timeby (3) creating and empowering a new division to investigate and prosecute proceedings to take action against a peace officer’s certification. To lay the groundwork for what will be deemed “serious misconduct” the bill sets out a number of criteria which will automatically be included:
Further, the bill eliminated specified immunity provisions for peace and custodial officers, or public entities employing peace or custodial officers sued under the Tom Bane Civil Rights Act. Lastly, and perhaps most importantly in this era of desired transparency, the bill made it so all records related to the revocation of a peace officer’s certification are public and requires that records of an investigation be retained for 30 years. With any luck, the passage and adoption of this change in law will help keep the credibility of law enforcement above reproach, and keep us all safer as a result. __________ [1] See “Los Angeles Deputy Says Colleagues are Part of Violent Gang” Dazio, NBC, August ,4 2020, available at: https://www.nbclosangeles.com/news/local/gang-los-angeles-county-sheriffs-deputies-executioners-compton/2407924/, [as of April 21, 2021].), _“In L.A. County, Gangs Wear Badges” Cheney-Rice, New York Magazine, September 4, 2020, https://nymag.com/intelligencer/2020/09/l-a-county-sheriffs-department-has-a-gang-problem.html, [as of April 21, 2021,] and “Los Angeles Sheriff's deputies say gangs targeting "young Latinos" operate within department” https://www.cbsnews.com/news/los-angeles-sheriffs-deputies-gangs-young-latinos/, [as of April 21, 2021]. [2] “Vallejo Police Launch Independent Probe Into ‘Badge Bending' Allegations,” NBC Bay Area, July 31, 2020, available at: https://www.nbcbayarea.com/news/local/north-bay/vallejo-police-launch-independent-probe-into-badge-bending-allegations/2336588/, [as of April 21, 2021]. [3] Civil Code Section 52.1. [4] (Government Code Section 821.6.) [5] Government Code Section 814 et seq.) |
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