Gov. Gavin Newsom signed AB 3234 earlier this month, creating additional statutory mechanisms for Court-initiated Misdemeanor Diversion. Now, via PC 1001.95 et seq, the courts throughout the state can grant client pre-trial diversion, even over the DA's objection, for a very wide array of offenses. (Currently excluded offenses are violations of Penal Code 290 et seq., 273.5, 243(e), and 646.9.  

Previous law authorized a county to establish pretrial diversion programs for defendants who have been charged with a misdemeanor offense and authorizes other diversion programs, including for defendants with cognitive developmental disabilities, defendants in nonviolent drug cases, and traffic violations. Proactive Diversion  programs have been shown to yield lower recidivism rates than seems when the judicial system used tactics more focused on prosecuting and jailing offenders.

Under the law, the defendant can be given up to 24 months to complete whatever conditions are imposed as a part of the diversion offer, and the terms of that diversion plan can be narrowly tailored to the specific facts and circumstances of the defendant's alleged crime. 

Should a candidate not successfully complete the diversion program, the criminal proceedings will be reinstated. Should a candidate successfully complete the diversion program, the net result will be that the criminal case against them is officially dismissed, and the record of arrest will be sealed, allowing a person to avoid potentially lifelong collateral con sequences of a conviction generally associated with having a criminal record. 
​
Because a candidate is not required to enter a plea to participate in diversion under this section, it will not count as a "conviction" for immigration purposes. 

We certainly cannot expect our police officers to make perfect decisions all of the time.  Because of this, the legal doctrine of qualified immunity generally applies to the decision they make.   "Qualified Immunity protects officers from being held personally legally responsible for a variety of constitutional violations (notably now:  the right to be free from the police using excessive force against them) for money damages under federal law if the police did not violate "clearly established law."

But right now, the Supreme Court is debating whether or not this protection for officers should continue to exist. 

OCTOBER 2020 Update:
This legislative session changes in the law have been adopted to help address instances of potential police misconduct:

• AB-1196 (Peace Officers Use of Force) was passed. The law, effective on the first of the year, prohibits the use of chokeholds (pressure to a person’s windpipe) and carotid holds (pressure to slow the flow of blood to the brain) by law enforcement.

• AB-1506 (Police Use of Force) was passed. The law This law will now shift the responsibility for investigating fatal police shootings of unarmed civilians to the Attorney General, and creates a new division (set to begin operating by mid-2023,) within the Department of Justice which will be tasked with reviewing use-of-force policies and make recommendations. 

​For more, see here. 

Public access to records regarding police misconduct has been a hot-button issue for the last several years.  Thankfully, New York is taking steps in the right direction to bring transparency to the misconduct of its officers.

For the full story see here. 

The following information was originally reported by the associated press[1]:
 
“More than a quarter of U.S. states and numerous smaller jurisdictions are looking for ways to reduce the use of solitary confinement, according to the Vera Institute of Justice, which encourages alternatives to a practice behavioral experts say is dehumanizing and can worsen mental illness.

The new policies in California came after Specter’s firm sued seven of California’s 58 counties, alleging that conditions had grown inhumane as jails absorbed inmates who previously would have served their sentences in state prisons. The state in 2011 began sending less serious offenders to local jails for years at a time to ease crowding in state penitentiaries.

Some jurisdictions nationwide are banning isolation for young offenders, pregnant women or those with mental health diagnoses. The California counties’ approach of generally limiting it to those who engage in continued violent behavior has dramatically reduced the number of inmates in isolation and the length of time they stay there….

Sacramento County also is following the policy pioneered by Santa Clara County, while Fresno County is considering it. Among other things, it encourages the use of low-cost incentives to reward good behavior, like the opportunity to listen to the radio, watch a movie or get an extra snack.

Sacramento County has cut its isolated population roughly in half, to about 60 inmates, said Lt. Alex McCamy: “It’s a limited time frame and a limited group, but the initial impression is positive.”

Rick Raemisch, who restricted the use of solitary confinement when he headed Colorado’s prison system, said the violent, tense, dirty conditions in Santa Clara County’s jail improved markedly with the new policy. “Think of yourself being in a cell the size of a parking space for 23 hours a day,” said Raemisch, who consulted with county officials. “At a minimum you’re going to get angry, and when you get angry you’re going to fight back.” 

Inmates nationwide are most often segregated for nonviolent “nuisance infractions” like smoking, cursing, disobeying orders or having unauthorized items from the commissary, said the Vera Institute’s Sara Sullivan. 

Santa Clara County once locked a woman in solitary confinement for 2 1/2 years for talking back to correctional officers or yelling and banging on her cell door with other detainees, according to Specter’s lawsuit.

The California counties’ new policy of restricting its use to continued violent behavior could be seen as a national pilot program, Sullivan said.

...There’s been a decades-long effort to reform solitary, especially in prisons. But what we haven’t seen is a paired reform effort for jails,” said Amy Fettig, director of the American Civil Liberty Union’s Stop Solitary campaign….

Long-term isolation can be so debilitating, Fettig said, that she’s had clients cut themselves “just to feel something because they’ve become numb.”
 ________________________

[1] https://apnews.com/2c40e61703f2a493c4dfa152150e7a29

 
 
Despite the passage of the “Wildlife Traffic Safety Act,” the result of SB 395, it is still illegal to collect or possess roadkill. However, the new law is paving the way for citizens to use the “salvageable wild game [roadkill] meat” meat of deer, elk, pronghorn antelope or wild pig. 
 
According to data from the CHP, approximately 8,000 large game animal vs. vehicle collisions have occurred statewide over the last six years. These collisions have resulted in over 1,500 injuries and at least 24 fatalities to motorists and their passengers.  UC Davis researchers estimate that the costs associated with animal vs. vehicle collisions exceed $200 million annually.  But perhaps more tragically, for the large animals involved in these collisions, approximately 40% of them are killed, and many are injured, however the fate of roughly one-third is unknown. 
According to the author of SB 395, Bob Archuleta, “By allowing the take of large game animals after a highway collision, and by logging the site of the incident, we not only clean up our highways, we gather the necessary data to prevent the occurrence in the future.” 
 
So if the new law doesn’t allow the taking of roadkill, what does it do? The new change in the law gives the California Fish and Game Commission permission to work with the California Department of Transportation, California Highway Patrol and the California Office of Environmental Health Hazard Assessment with the goal of ultimately adopting regulations to establish a “salvageable wild game meat utilization program.” Such a program would almost certainly include a permitting and a reporting process.
 
Currently, California’s best public reporting system on roadkill statistics is that run by the University of California, Davis. (Their California Roadkill Observation System (CROS) allows anyone to contribute roadkill data and photos to the system.) However, the new law allows the Fish and Game Department to create their own roadkill reporting database, with the goal of helping wildlife managers identify the places where wildlife/vehicle collisions are most common. With that information, legislators claim the state can make more pinpointed wildlife conservation efforts. 
 
The permitting process—which per the law’s text, will generate free permits—is expected to be run via a user-friendly and cell-phone-friendly web- based portal. Permitting will take into consideration roadways, locations, species subject to salvage, and any other aspect necessary to ensure the salvage pilot program’s success.  With a permit, any person who unintentionally strikes and kills a specified animal on a roadway or who encounters an unintentionally killed animal of eligible species may recover, possess, use or transport the whole animal and salvage the edible portions. That said, only an officer of the Fish and Game department or a law enforcement may kill a severely injured animal that has been struck by a passing vehicle. However, once an injured animal has been euthanized by one of these designated officers, a permitee can lawfully collect the meat.
With this change in the law, California will be one of among half of the states allow roadkill to be collected, processed and eaten. 
 
If you have been arrested or cited for a Fish and Game violation in Sonoma, or any of Sonoma’s surrounding counties, contact Devina Douglas.
 

​Trapping animals for the sale or use of fur is now illegal in California, the first state to implement such a law. The fur-bearing animals protected by this law include grey fox, coyote, beaver, badger and mink.
 
Previously, trappers were required to obtain a trapping license, but the state claims that the licensing system had become unwieldy. Apparently, the state issued only 133 trapping licenses and four fur dealer licenses in 2017, generating only $16,000 in revenue for the state.  “Not only does the cruel fur trapping trade decimate our increasingly vulnerable wildlife populations, running this program doesn’t even make fiscal policy sense,” Assemblymember Lorena Gonzalez (D), author of the legislation, said in a statement. “Taxpayers are subsidizing this unnecessary commercial activity because the cost of managing this program isn’t even covered by the revenue from trapping license fees.”
 

Despite bobcat numbers growing steadily throughout the state and country, after the passage of Assembly bill 1254, touted as being part of a package of bills promoting “animal welfare” and “fighting animal cruelty,” the “trophy hunting”[1] of bobcats will be illegal for the next five years and possibly longer, unless state wildlife officials approve a plan to preserve the animals’ overall population. This means that under most circumstances, hunting, trapping or killing a bobcat is prohibited, with exceptions allowed for:
 

• A law enforcement officer or licensed veterinarian acting in the course and scope of official duty, or
• A killing based on a good faith belief that killing was necessary to protect a person from immediate bodily harm from the bobcat. However, note that if a person takes the bobcat under these circumstances, the person must notify the department of Fish and game within five days after the take, AND the bobcat cannot be retained, sold, or removed from the site of the take without the authorization from the department.

 
This law will stay in place for at least the next five years.  After that, state wildlife officials will have the option of reopening the hunting season with regards to bobcats. …However, as most of us who keep our eyes on such matters have noted, the chances of Fish and Game reopening a once-closed season is small. Further, in order for the season to reopen, the Legislature will have to appropriates funds specifically earmarked to satisfy conditions imposed by the bill.[2]  These conditions include performing studies,[3] which are estimated to cost $2.5 million, and setting tag fees sufficient to recoup the costs. As a point of reference, the current revenue from bobcat tags amounts to approximately $35,000 a year, less than 2% of the estimated cost of reopening a season. 
 
The necessity of this bill is in doubt as opponents (a large majority of whom are part of the hunting world,) pointed out that while during the 2017/2018 hunting season (the last season for which there is comprehensive data,) the Department of Fish and Wildlife issued just shy of 12,000 bobcat tags, but only 331 animals were actually taken. These opponents also note “The harvest rate of bobcats is so low – not because bobcats are scarce – but rather because bobcats are shy and secretive by nature, and because of the severe restrictions already in place on how and where they can be taken.”[4]
 
 
California continues to be one of the most aggressive states with regards to protecting wildlife from hunting and trapping. In 1990, it became the first state to ban mountain lion hunting, the state enacted a trapping ban initiative in 1998, and the hunting of bear and bobcat hunting with hounds was outlawed in 2011. 
___________________

[1] This language is considered a politically-motivated addition to the law, as neither hunters nor the state Fish and Game Code considers bobcats “trophy animals.” 

[2] See Fish and Game Code 4157

[3] The studies will look to the potential impacts of a bobcat hunting season, including the effects on all of the following: (1) Bobcat populations, (2) Bobcats’ wild prey, (3) Disease abatement, including, but not limited to, hantavirus, and (4) The control of invasive species, especially nutria.

[4] A copy of the letter of opposition can be found here: https://www.calwaterfowl.org/wp-content/uploads/2019/06/AB-1254-SNRW-Coalition-Ltr-Oppose-6-7-19.pdf

With recent school-shootings in the news, now might be a good time to talk about CA's laws regarding the possession of firearms on school property.
 
The Gun-Free School Zone Act of 1995 controls most of the law surrounding a person's ability to bring a firearm onto a school zone, which is defined as a zone of 1000 feet surrounding and including "an area in, or on the grounds of, a public or private school providing instruction in kindergarten or grades one to 12." That Act made it illegal to bring a firearm into a school zone under most circumstances, with exceptions being made for those with permission from school officials. 
 
In 2019, it them became illegal for school workers, or anyone else who previously had permission, to bring guns on campus, even if that person has a concealed carry permit. Prior to this change, the Gun-Free School Zone Ac allowed districts and county education offices to make their own determinations into whether qualified civilians could carry a firearm on campus. This change in the law still allows firearms to be brought to a campus for (1) certified hunter education programs (as long as the firearms are unloaded and participants do not possess live ammunition in a school building,) (2) programs that involve shooting sports, and (3) activities that are sanctioned by a school district that occur on district property. 
 
Firearms possessed by peace officers, honorably retired peace officers with valid concealed carry permits, and authorized security guards are still allowed to carry a firearm. Further, firearms are still allowed to be used at an existing shooting range, and any firearm technically can be on a campus if it is an unloaded handgun and is in a locked container or within the locked trunk of a vehicle.

If you have. question about gun laws, feel free to contact Devina. 

​California may soon restore the voting rights of approximately 50,000 of its citizens, felons.
 
Currently, Only Maine and Vermont allow felons to vote while in custody in state prisons related to their sentence.  Massachusetts used to…  However, the law was changed after it was discovered that inmates formed a political action committee to influence their state representatives.
 
The California Constitution states that “The Legislature shall prohibit improper practices that affect elections and shall provide for the disqualification of electors while mentally incompetent or imprisoned or on parole for the conviction of a felony.” However, in 1976, the state amended the constitution, restoring voting rights to felons if the felon was not still “imprisoned or on parole.” …But this change in the law was not quite so clear cut, especially after California passed its 2011 Realignment Act, which effectively moved a substantial number of low-level offenders out of state prisons to county jails as a way to address overcrowding. Were felons being housed in county jails “imprisoned”?
 
“If you look at the state constitution, you would have a hard time believing that jails and prisons aren’t the same intent,” noted Hans von Spakovsky, a senior legal fellow at The Heritage Foundation who specializes in election-related issues.  However, one must wonder if this change in the law was politically motivated. “Social science shows that felons overwhelmingly vote Democrat,” von Spakovsky said.
 
California Attorney General Kamala Harris supported the bill, stating “The right to vote is fundamental to our democracy and society, and yet for too long we have stripped certain individuals of that right.” Other proponents believe that by restoring a felon’s ability to vote, the felon will be less likely to reoffend because they are more connected to their community. The ACLU believes the change in law “would address the history of racial oppression behind California’s felony disenfranchisement laws. Three of every four men leaving California prisons are either African American, Latino, or Asian American. Black Americans are four times more likely to experience felony disenfranchisement than are white Americans.” 

​We’re hearing more and more about fights on school grounds these days, and the restrictions on what schoolchildren can and can’t do on those same school grounds seem to be getting tighter. It seems that every day school officials are announcing they are at the end of their ropes, and that the criminal justice system is getting involved.  
Years and years ago a program called Scared Straight was introduced to high schoolers, designed to show troublemakers what the inside of a jail really feels like. In the original 1978 documentary, the alleged troublemakers were taken to Rahway State Prison, where a group of inmates sought to "scare them straight" in hopes that the troublemakers would begin taking steps to avoid their own jail sentences. 
While the participants in the documentary were volunteers, recently the California courts sought to clarify whether school resource officers (usually law enforcement officers assigned to a school campus,) could arrest a student as a way of scaring straight uncooperative students. In that case, and in response to an on-going conflict a between group of students, the school’s assistant principle called a meeting with the students, and invited the school’s resource officer (a Sheriff’s deputy,) to attend. When the meeting didn’t go as planned, the deputy formed the opinion that the students were being uncooperative and disrespectful, and within “minutes” of his arrival at the meeting threatened to take all the students to jail to “prove a point.” As he continued to lecture them, he also stated that he didn’t care who was ultimately at fault. Unfortunately, his threats did not convince the students to cooperate with his inquiry so he arrested all the students for a violation of Penal Code 415- Unlawful Fighting. One student was cited and released to her father, the other six were taken to jail.  No disciplinary action was taken against the students at school, and no charges were ever filed in the court system. When the parents of a few of the student sued, our courts were asked to determine the constitutionality of the student’s arrests (a “seizure” under the US Constitution’s 4thAmendment) in this situation. 
 
As it pertains to the 4thAmendment, the US Supreme court has previously held that “the school setting requires some easing of the restrictions to which searches by public authorities are ordinarily subject.” As a result, school officials, under certain circumstances, can conduct warrantless searches of students, even where the traditional level of probable cause hasn’t been reached. In these cases, whether a search is allowable “depend[s] simply on the reasonableness, under all the circumstances, of the search.”[1]
So, in these situations, what is reasonable? …When there is a “special needs exception” to the general warrant requirement.  In making this determination, the court uses“a twofold inquiry,” which first looks to “whether the search (or seizure) was justified at its inception,” and then whether “the search (or seizure) as actually conducted was reasonably related in scope to the circumstances which justified the interference in the first place.” In these “special needs” situations, the “actual motivation” of law enforcement should be considered.
The court here decided that the arrest of the students was not “justified at their inception,”  because there were only vague allegations of fighting, with no information about who instigated the fights; the school resource officer clearly stated he was arresting the kids to make a point.  As a result, the court held that the student’s arrests were constitutionally unreasonable. “The arrest of a middle schooler . . . cannot be justified as a scare tactic, a lesson in maturity, or a chastisement for perceived disrespect.” 


[1]New Jersey v. T.L.O. (1985) 469 U.S. 325. Generally, law enforcement is held to stricter standards, but when they are on campus and acting at a school official’s request the same relaxed standards that apply to the school officials apply to law enforcement officers.

​Imagine being at home when the police show up to execute a search warrant for your home, looking for documents, computer records, and electronic information storage devices.  …And you’ve got to use the restroom.  Should a same-gender officer be able to insist on coming into the bathroom with you to watch you relieve yourself, all under the guise of ensuring you don’t destroy or hide evidence while you’re in there? Thankfully, the court said no. 
In Ioane v. Hodges[1],the IRS suspected Mr. Ioane criminal fraud. The IRS sought, and was granted, a search warrant, allowing them to access the Ioane home, looking for documents, computer records, and electronic information storage devices that could be evidence of that fraud. The Ioanes were told then were free to leave, but would not be allowed back into the house if they chose to leave. So they stayed, waiting patiently in the kitchen.  At some point during the search, Mrs. Ioane informed the Agents that she needed to use the bathroom. A female agent accompanied her to the bathroom, told Mrs. Ioane to remove her clothing, and then told Mrs. Ioane to hold up her dress while she relieved herself. Feeling rightfully violated, Mrs. Ioane filed suit in federal court under 42 U.S.C. § 1983. 
First, the court decided that Mrs. Ioane was able to file suit as the female officer was not entitled to qualified immunity from civil liability, after balancing Mrs. Ioane’s right “to hold public officials accountable when they exercise power irresponsibly” with the government’s “need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Generally, the law defaults to finding that the government is entitled to qualified immunity unless the facts demonstrate that the officer’s conduct violated a constitutional right, andthe right was clearly established at the time of the asserted violation. Because this case revolved around the 4thAmendment, and the 4thAmendment always begs in inquiry into the reasonableness of the government’s actions, the court was, in short, asking if the female agent’s demand to actually watch Mrs. Ioane relieve herself was reasonable under the circumstances of that case, specially looking at “(1) the scope of the particular intrusion, (2) the manner in which it is conducted, (3) the justification for initiating it, and (4) the place in which it is conducted.”
So let’s walk through each of these factors.  First, as us reasonable minds would expect, the court had no trouble announcing that it isa violation of one’s right to bodily privacy to require that person to expose him- or herself to an officer. Because the Court logically reasoned that the “naked body” is the most “basic subject of privacy,” it found that “the scope of the intrusion into [the wife’s] bodily privacy here was significant.” Second, the court found it was important that Mrs. Ioane was not detainedat the time of this intrusion, and thus was entitled to more freedom from the scrutiny of the agent. This was especially so as there was no reason to believe that Mrs. Ioane was in possession of any weapons or evidence at the time she requested to use the bathroom. Lastly, it was noted this intrusion occurred in the Ioane home, and a person’s home has always been held to be a place in which we can expect to heightened level, of privacy. 
Thus, the court held that forcing a person who has not been detained to expose him- or herself to a law enforcement officer, is a Fourth Amendment violation unless the officer has reasonable articulable suspicion that the person be armed, or probable cause to believe he or she is secreting evidence.


[1](9th Cir. Sept. 10, 2018) 903 F.3rd929.

​Let’s say you’re a passenger in your friend’s car when your friend gets pulled over for speeding. Assuming the police have no reason to believeyou’vedone anything illegal, can the officer demand youridentification? Nope!
In United States v. Landeros[1], the court heard the case of a defendant who was told he was required to give the officer his ID under circumstances similar to those above.  In that particular case, the officer felt his demand was justified as he felt it was “standard for (law enforcement) to identify everybody in the vehicle.” When the defendant refused twice, the officer called in backup, told the passenger he was not being “compliant,” and ordered the passenger to get out of the car. After his exit from the car, unfortunately, the police found evidence which led them to believe that the passenger had, indeed, violated the law. 
The 9thCircuit heard the case, and began its analysis stating the well-settled rule that “[a]n officer . . . may conduct certain unrelated checks during an otherwise lawful traffic stop. But . . . he may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual.”[2]An officer canask about other unrelated criminal activity during the traffic stop, but should confine these unrelated inquiries to within the time it takes to accomplish their original task: addressing the potential traffic violation and whether the driver is licensed and insurance, whether the vehicle is properly registered. Anything the officer does that exceeds the time it would have taken to accomplish those tasks is likely to be held to be illegal. And as we have discussed hon this blog before, any evidence unearthed during an “unlawfully prolonged traffic stop” is subject to suppression. The court, therefore, determined that the officer was NOT acting within the confines of the law when he extended the traffic stop by asking for the passenger’s ID, and even went so far as to state that the passenger’s refusal did NOT “provide[]reasonable suspicion of the additional offenses of failure to provide identification and failure to comply with law enforcement orders,” (which is a violation of Arizona law, where this case took place.) 
To be clear, a person is not required to identify him- or herself to law enforcement unless law enforcement has a reasonable suspicion the person is involved in criminal activity.[3]


[1](9th Cir. Jan. 11, 2019) 913 F.3rd862

[2]Rodriguez v. United States (2015) [135 S.Ct.1609]

[3]See Kolender v. Lawson (1983) 461 U.S. 352.

​If you post a video to a social media website like Facebook, but are careful to only share the video with your “friends” have you waived your expectation of privacy with regards to that video?  The CA Appeals court says yes, even ifthe posting is automatically deleted within a certain time frame, and even ifit was shared with a small group of friends, one of whom shares it with others or was undercover police officer who had been posing as a “friend.”  
In People v. Pride[1]the court heard a case which arose after a man had been mugged, and the attacker posted a video, shortly thereafter, of him wearing a gold chain stolen from the victim, and bragging about his new acquisition. Unfortunately for the defendant, an undercover police officer had infiltrated his “friend” group on social media, and saw the video. As they tend to do, the police officer preserved a copy of the video, and the prosecution used the video against the defendant during his criminal case. 
The defendant objected to the admission of the video on several grounds, first that the police violated his Fourth Amendment rights when they accessed his social media account under false pretenses: namely that the officer was pretending to be a friend when he was not. The defendant argued that social media was intended for private messages and thus he retained some expectation of privacy in the posting.  Further, his expectation of privacy should also have been protected as the message was set to be automatically deleted once all the intended recipients of the video had watched it. The court noted that the inquiry into whether one’s expectation of privacy had been violated turns first upon whether the privacy right claimed by the defendant is one that “society is prepared to recognize as reasonable.” From there, the Fourth Amendment requires that a warrant, supported by probable cause, be obtained, absent certain extenuating circumstances. 
While other states have discussed this issue, this case represents the first time a California court has sought to determine if California society “is prepared to recognize as reasonable” a privacy right which would prevent law enforcement from posing as a “false friend” to seek out incriminating information. Like the others states which have addressed this issue, California decided that the answer is no.  The court references the Delaware Supreme Court, noting “[T]he Fourth Amendment does not guard against the risk that the person from whom one accepts a ‘friend request’ and to whom one voluntary (sic) disclosed such information might turn out to be an undercover officer or a ‘false friend.’ One cannot reasonably believe that such ‘false friends’ will not disclose incriminating statements or information to law enforcement—and acts under the risk that one such person might actually be an undercover government agent. And thus, one does not have a reasonable expectation of privacy in incriminating information shared with them because that is not an expectation that the United States Supreme Court has said that society is prepared to recognize as reasonable.” In short, a person’s legitimate expectation of privacy ends when he shares posts with ‘friends’ because those ‘friends’ are always free to use the information however they see fit.
Of note, the court also addressed the defendant’s assertion that the California Electronic Communications Privacy Act[1](which limits the government’s access to electronic communication information from a certain service providers,) prevented the prosecution’s use of the video. Citing that Act directly, the court noted the Act “…does not prohibit the intended recipient of an electronic communication from voluntarily disclosing electronic communication information concerning that communication to a government entity.” 
So what lessons can we take from this case? First, don’t accept “friend” requests from people you don’t know.  Second, don’t post anything to any social media sites you wouldn’t send directly to the police themselves. 


[1]P.C. §§ 1546 et seq.

[1] (Jan 10, 2019) 31 Cal.App.5th 133

...At least in the 6th Federal Circuit.  ...For now. 

For the full story, see here.

For an interesting take on why SCOTUS may overturn the decision, see here. 

We’ve seen it used a million times on TV, but in the real world successfully asserting an insanity defense[1]is rare and difficult.[2]
 
When the court looks to whether a person in “insane” for the purposes of a criminal matter, it uses what we call the M’Naghten rule.  In order to be insane, the defendant must no—at the time of the offense—have been able to either understand the nature and quality of his or her act or must not have been able to distinguish between right and wrong.[3]  For example, a person could be held to be insane, and would have a defense to animal abuse charges, if they heard imaginary voices, telling them that the world was going to end shortly unless the defendant sacrifices a goat to the God Anived, so the defendant does, indeed sacrifice the goat. However, if a defendant who suffers from depression or anxiety, and only felt relief when she was hitting her boyfriend would not be able to successfully use the defense, even though the anxiety or depression caused her not to care about the possible consequences of hurting the young man. 
 
Because insanity is a legal defense, it is the defendant, not the government, that bears the burden of proving by a preponderance of the evidence[4]this aspect of a case. At trial, the two issues (first, whether the defendant did the act for which they are being accused, and then second, if they were insane when they committee the act) are heard separately.[5]The issue of guilt is heard first, with this portion of the case being just like what you see on TV: the various witnesses to the crime testify about the evidence. Then, if the jury finds the defendant guilty, the jury decides the issue of sanity. During this portion of the case, usually the only witnesses are qualified medical professionals. 
 
However, a lot of people do not realize that a defendant whois held to be insanedoes not get a free pass; they are ordered to be committed to a state hospital for treatment, not only to try to rehabilitate the defendant, but also to protect society.[6]A defendant can be held in that mental facility until one of three things happen: (1) doctors believe that the defendant has regained sanity, (2) the maximum term of imprisonment for that crime has expired[7], or (3) the doctors feel that the defendant would be successfully in addressing the underlying issue via outpatient treatment program. 
 _______________
 
[1]Found in Penal Code § 25

[2]Recent statistics claim that only 1% of all defendants assert the defense. 

[3]In the 90s, the legislature amended the law to prevent the court from finding a criminal defendant insane based solely on the basis of  a seizure disorder, a personality or adjustment disorder, or addiction to/abuse of an intoxicating substance.

[4]More likely than not. 

[5]Of course, a defendant can enter a plea of “guilty by reason of insanity,” in which they admit they did the bad thing they are accused of, but claim the defendant should not be held accountable due to the defense of insanity. 

[6]People v. Superior Court (Williams) (1991) 233 Cal.App.3d 477, 485.

[7]That said, a defendant may be further confined, if the person still has a diagnosed mental disease or disorder and is a substantial danger of physical harm to others.
 

Law enforcement is legally allowed to pull you over if they see that you are violating even the most insignificant of laws, even if that minor law violation is merely a pretext for investigating a hunchthat the driver has done something else more sinister. Because of this, it is not uncommon for a DUI driver to have originally been stopped for something trivial like having a taillight out, having something hanging from the rearview mirror, or, as relevant to this blog post, a license plate violation.
 
California law requires that you have both a front and rear license plate on your car, and that that license plate be “securely fastened to the vehicle . . .as to prevent the plates from swinging,” “mounted in a position so as to be clearly visible, and so that the characters are upright and display from left to right,[1]and shall be maintained in a condition so as to be clearly legible.”[2] Further, the license plate can only be covered by (1) a security cover—as long as that security cover does not obstruct any portion of the license plate numbering, or the registration stickers—or (2) a car cover on a parked car, used to protect the vehicle from the weather.
 
Now, speaking of those registration stickers… they need to be attached to the license plate properly, in the correct location: with the “month” sticker on the left, and the “year” sticker on the right.  Should you accidently put the stickers on the wrong side of the plate, (I’ll be honest: I’ve done it!) you’ll need to take extra care in remedying the problem as they stickers have been designed to be especially difficult to remove so that thieves cannot steal a person’s valid registration sticker and put it on their own, non-registered vehicle. Should you try to just peel the incorrect sticker off, don’t be surprised if the sticker rips apart, making itself perfectly unusable.  Should this happen to you, the easiest thing to do it to just order new stickers from the DMV. 
 
Lastly, starting this year[3], when a car dealer sells a car, the dealer will be required to give you temporary license plates, and it is required that you keep both of those license plates on the vehicle until the permanent plates arrive.[4] These temporary license plates must include a plate number, what the DMV calls a “report of sale number,” the Vehicle Identification Number, Year, Model and Make of the vehicle, and an expiration date that is 90 days after the date of sale. As of the time of writing this post, it is expected that each of these valid temporary license plates will include security features, helping to thwart theft of the plates.  
 
In today’s world, when we’re all so busy with the things that “really” matter in life, it’s easy to become complacent about the little things that are wrong with our cars, but ignoring these little things is practically inviting a bored police officer to  run your plate or pull you over, all in the name of simply “doing his or her job.” 
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[1]So don’t be funny and put your license plate on upside down. 

[2]Cal. Vehicle Code 5201.

[3]As the result of the passage of Assembly Bill 516. 
 
[4]If you lose one or both of the temporary plates, you’ll need to go back to the dealerfor replacements. 

One of the scariest parts of any criminal action is the fear surrounding what the potential punishment may be.  Every defendant knows that their crime is often different from a crime committed by someone else, even if the two defendant's actual records reflect the same conviction.  There could have been mitigating circumstances! There could have been life circumstances which may sway a judge to give them a lesser sentence!  The Defendant could have been coerced into committing the crime! Thankfully, California is well aware of all of these possibilities and seeks to have every sentence reflect the seriousness of the particular offense. 

In California, the law requires the preparation of a "probation report" in all cases in which a felony conviction is obtained. This report is prepared by the Probation office after an interview with the defendant, at which time the defendant can do a little more explaining. A defendant him- or herself, often through his or her attorney, can also prepare a "statement in mitigation," which is a more in-depth analysis of all of the relevant factors they hope the judge considers before handing down a sentence. The court should use this Presentencing Report and the Statement in Mitigation in determining the appropriate length of a prison sentence and in deciding whether probation is appropriate. The report can be helpful as it should contain factual findings by the probation officer including, but not limited to, the facts and circumstances of defendant’s crime, recommendations as to a grant of probation and its terms, and any other sentencing recommendations. 

​To help both probation and the defense focus their arguments, California Rule of Court 4.410(a) outlines list of general objectives for sentencing in California:  protecting society, punishing the defendant, encouraging the defendant to lead a law abiding life in the future and deterring him or her from future offenses, deterring others from criminal conduct by demonstrating its consequences, preventing the defendant from committing new crimes by isolating him for a period of incarceration, securing restitution for the victims of the crime, and achieving uniformity in sentencing. Subsection (b) of that same rule provides that “Because in some instances these objectives may suggest inconsistent dispositions, the sentencing judge must consider which objectives are of primary importance in the particular case.” Also, California Rules of Court, Rule 4.414 lists several criteria the court can look to when deciding whether to grant probation.  These criteria include facts related to the crime, and facts related to the defendant.

So which factors matter enough to have been expectedly listed in the law? 

Factors relating to the crime include that:

1. The defendant was a passive participant or played a minor role in the crime;
2. The victim was an initiator of, willing participant in, or aggressor or provoker of the incident;
3. The crime was committed because of an unusual circumstance, such as great provocation, that is unlikely to recur;
4. The defendant participated in the crime under circumstances of coercion or duress, or the criminal conduct was partially excusable for some other reason not amounting to a defense;
5. The defendant, with no apparent predisposition to do so, was induced by others to participate in the crime;
6. The defendant exercised caution to avoid harm to persons or damage to property, or the amounts of money or property taken were deliberately small, or no harm was done or threatened against the victim;
7. The defendant believed that he or she had a claim or right to the property taken, or for other reasons mistakenly believed that the conduct was legal;
8. The defendant was motivated by a desire to provide necessities for his or her family or self; and
9. The defendant suffered from repeated or continuous physical, sexual, or psychological abuse inflicted by the victim of the crime, and the victim of the crime, who inflicted the abuse, was the defendant's spouse, intimate cohabitant, or parent of the defendant's child; and the abuse does not amount to a defense

 
Factors relating to the defendant include that:

1. The defendant has no prior record, or has an insignificant record of criminal conduct, considering the recency and frequency of prior crimes;
2. The defendant was suffering from a mental or physical condition that significantly reduced culpability for the crime;
3. The defendant voluntarily acknowledged wrongdoing before arrest or at an early stage of the criminal process;
4. The defendant is ineligible for probation and but for that ineligibility would have been granted probation;
5. The defendant made restitution to the victim; and
6. The defendant's prior performance on probation, mandatory supervision, postrelease community supervision, or parole was satisfactory.

If you would like to speak to an attorney ready, willing and able to help you put the best possible spin on your case, get ahold of Devina Douglas.

One of the first thoughts that run through an arrestee's mind after landing in jail is quite simply "how fast can I get out?"  Usually, the fastest way out is to post bail: your promise, secured by money, that you will appear at the upcoming court dates. 

The Constitution guarantees a person the right to jail in almost all circumstances,[1] and a person's bail is often set by a schedule, a set of guidelines adopted by the government that establish uniform guidelines correlating each crime to a dollar amount of bail.  We have bail schedules to try to ensure the defendants who commit the same crime are held on the same bail throughout the state. But both the prosecution and the defense can request deviations from bail.  When deviating, the court often looks to these factors:

1. The seriousness crime. For example, if  Person A was arrested for Hit and Run after dinging someone's bumper in parking lot and not leaving a note, their attorney might argue their crime is far less serious that Person B who was also arrested for Hit and Run after sideswiping a car on the freeway, as they did 90 mph, thus their bail should be lower.
2. The chances they'll show up to all their court appearances. For example, Person A will likely have a lower bail if they've been involved in the justice system before and has a perfect track record for attending court than Person B who has the same type of criminal history, but has missed several court dates previously, even if Person B still ultimately returned to court. Also considered is the person's flight risk: even if the charges are serious, a person with ties to the area (family here, a job here, has lived in the area for a long time, etc.) stands a better chance of getting a lower bail. 
3. The risk to public safety. This one should be pretty obvious.  

If you are in custody, and want to speak to a criminal defense attorney, give Devina a call. 

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[1]The exceptions her in California being Capital (a) crimes when the facts are evident or the presumption great, (b) Felony offenses involving acts of violence on another person, or felony sexual assault offenses on another person, when the facts are evident or the presumption great and the court finds based upon clear and convincing evidence that there is a substantial likelihood the person's release would result in great bodily harm to others;  or (c) Felony offenses when the facts are evident or the presumption great and the court finds based on clear and convincing evidence that the person has threatened another with great bodily harm and that there is a substantial likelihood that the person would carry out the threat if released. The purpose of the exception to the right to bail for capital defendants is to protect the public from those who commit intensely serious crimes. ​