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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.) It’s a basic tenet of our fundamental fairness within our criminal justice system that a criminal defendant needs to be competent to assist in his or her own defense. Because of this, California has long held that a person cannot be tried or “adjudged to punishment while that person is mentally incompetent.” Should the judge, prosecutor or defense attorney have a basis for believing the defendant is not competent to stand trial, a procedure has been put in place wherein criminal proceedings are suspended while the defendant is evaluated for competency, the underlying issues are identified, and, wherever possible, restored to competency. Prior to 2022, this restoration to competency was legally allowed to include involuntary antipsychotic medication in all cases.
After the passage of SB 317, however, the portion of the law regarding the restoration of competency for a person charged with a misdemeanor or a violation of probation for a misdemeanor has been repealed, including the provisions regarding administration for antipsychotic medication. Instead, the court is still authorized to have the defendant evaluated for competency, but now must either grant mental health diversion or dismiss the charges if the defendant is found to be incompetent and cannot be restored to competence without involuntary medication. If the person can be restored to company through counseling or voluntary medication, the court is to refer the defendant for evaluation by the County Public Health Director for “a written recommendation as to whether the defendant should be required to undergo outpatient treatment, or committed to a treatment facility.” SB 317 also assures that anytime the defendant spends in a mental health treatment facility pending their return of mental competency are credited against any potential jail sentence at the same rate other “good conduct credits” are awarded for time spent in “confined in or committed to a county jail, industrial farm, or road camp, or a city jail, industrial farm, or road camp.” Often when a person digs into the reasoning behind the enactment of any certain law, they find a solid, commonsense reason which justifies a limitation of the citizenry’s freedom. …But sometimes the reason just makes you laugh. According to an article published in LA Weekly in 2012, California criminalized the possession of nunchucks (as defined in Penal Code section 16940 as “an instrument consisting of two or more sticks, clubs, bars, or rods to be used as handles, connected by a rope, cord, wire, or chain, in the design of a weapon used in connection with the practice of a system of self-defense such as karate”)—to the tune of making it a felony—in 1974 in response to the sudden rise in the public’s interest in martial arts films, noting that at that time “the United States was in the kung-fu grip of a martial arts craze. Sparked by the 1973 release of Bruce Lee's Enter The Dragon and spurred by such pop phenomena as the TV series Kung Fu and the song “Kung Fu Fighting,” martial arts fever was spiking, along with a faddish interest in martial arts weapons.
“Menaced by the trend, Newsweek published a sensational article on nunchucks, called “Killing Sticks.” The article's alarm bells prompted lawmakers around the country to contemplate bans, but only New York, Massachusetts, Arizona and California followed through, with then-Gov. Ronald Reagan signing California's bill into law.” The following year, a small exception was carved out of the law, allowing the possession of the “weapons” at a martial arts academy. In 2022, however, via the passage of SB 827, California finally did away with the prohibition of the possession of these “weapons” be removing reference to nunchaku in the list of “generally prohibited weapons” within the state and from the list of crimes from which a Plaintiff may bring an action of enjoin as being a nuisance. If you are being charged with a weapons-based offense in the Northern San Francisco Bay Area and need to consult with an attorney, feel free to reach out to Devina. Rape is acknowledged by all as a crime of violence that harms the victim both physically and psychologically. However, here in California, prior to a recent amendment to the law, AB 1171, California was one of just eleven states that distinguished “spousal rape” from “rape” so rapists who were convicted of spousal rape law faced less severe sentences. "When spousal rape is not treated as seriously as other forms of rape, it invalidates the victims' traumatic experiences and continues to promote rape culture. Moreover, a rapist should not be shielded from punishment simply because the rapist is married to the victim,” writes the author of the bill, Cristina Garcia.
2022’s enactment of AB 1171 worked to repeal the provision of Penal Code section 262, rooted in antiquated views that wives were the property of their husbands, which differentiated between “rape’ and “spousal rape,” which means that a defendant convicted of raping a spouse will now face a mandatory prison sentence and be required to register as a sex offender. This change is lauded by a wide variety of groups, including the National Coalition Against Domestic Violence (NCADV), which found that between 10-14% of married women have been or may experience rape by their spouse, and that 18% of these victims state their children have witnessed the rape. “Rape is rape, regardless of the relationship between the rapist and a victim,” says co-author Senator Dave Cortese (D-San Jose). “The idea that marital rape should be punished less severely is absurd and this legal loophole can’t continue to be ignored.” If you’ve been charged with a crime of sexual violence and wish to consult with Devina about your case, you can reach her here. Under California a law, “A mistake of fact that disproves the required intent for a crime" can amount to a defense against alleged criminal responsibility if the defense can raise a reasonable doubt regarding the existence of an element negated by mistake of fact. For a specific crime such as theft, the mistaken belief need only be an actual belief, and need not be reasonable. Recently, in People v. Speck, the California Courts have taken another look at this law, affirming that where (1) there is substantial evidence supporting the mistake of fact defense, and (2) the defense asks that the jury be instructed on the Mistake of Fact defense, the judge must give the relevant jury instruction. In Speck, the defendant was arrested after he was found to be driving a stolen car. At the trial, he testified that he had borrowed the car with permission from the person he beleived owned the car. The defense of mistake of fact requires, at a minimum, an actual belief “in the existence of circumstances, which, if true, would make the act with which the person is charged an innocent act. For general intent crimes, the defendant's mistaken belief must be both actual and reasonable, but if the mental state of the crime is a specific intent or knowledge, then the mistaken belief must only be actual. So what happens if you make a mistake about a fact that is relevant to your criminal charges because you were intoxicated. Whether you can use the defense will ultimately come down to whether you were voluntarily or involuntarily intoxicated. Voluntarily intoxicated? You will not be able to use the defense. But Involuntarily intoxicated? You might. If you have any questions about whether a Mistake of Fact defense may help your case, feel free to contact Devina. As we as a society evolve, we hope that our laws evolve as well. Enacted as of January 1, 2022, California passed a law which helps to offer a little leniency in sentencing for defendants who suffered certain traumas.
Our law has long allowed for defendants to enter into a plea bargain, accepting responsibility for their criminal conduct, and in exchange, the prosecutor or judge will make certain promises, commitments, concessions, assurances, or give the case certain considerations. That said, previously, working within California’s relatively rigid sentencing scheme, judges often lacked the discretion to impose a sentence which adequately addressed these underlying factors where vulnerable populations were involved. AB 124 aimed to address this problem. Following the passage of AB 124, the legislature has directed that the court must now impose the low term prison sentence when the defense submits acceptable proof (1) of childhood trauma, (2) they were a victim of human trafficking, or (3) they were a victim of domestic violence, unless there are circumstances in aggravation which outweigh this evidence in the particular case. The reason for the change is that the legislature specifically recognized “survivors of sexual violence, intimate partner violence, and other severe forms of trauma are more likely to be incarcerated. In fact, according to the ACLU, nearly 60% of female state prisoners nationwide and more than 90% of certain female prison populations experienced physical or sexual abuse before being incarcerated. Yet, California's legal system currently lacks any consideration for the relevant experiences of survivors in the sentencing or resentencing process,” and writes “AB 124 would provide a path for courts to consider the full context of the trauma that contributed to a survivor's actions or inactions. It would create a trauma-informed response to sentencing that provides just outcomes for survivors. Currently, the societal trauma caused by criminalizing these individuals spans generations and perpetuates cycles of abuse and trauma. … AB 124 ensures that survivors of sexual violence are able to receive justice through our legal system." According to the National Center for Youth Law: "According to the ACLU, nearly 60% of female state prisoners nationwide and as many as 94% of certain female prison populations have a history of physical or sexual abuse before being incarcerated” and according to the Public Policy Institute of California, “Black women make up 25% of the incarcerated population in California, which when considered alongside the reality that Black women are only 5% of the adult population yet are incarcerated at five times the rate of white women, demonstrates a deplorable overrepresentation of Black women in prison.” The State’s decision to enact this law also considered that "despite the body of research showing that the effect of trauma and abuse drives girls into the juvenile and criminal justice systems, the system itself typically overlooks the context of abuse when determining whether to arrest or charge a girl. Many trafficking survivors are incarcerated for crimes committed to protect themselves from further violence. Numerous studies show that survivors of coerced into participating in illegal activities by their abusive partners.”[1] Further, it’s widely known many victims of domestic violence of human trafficking are reluctant to report the abuse as they distrust the systems, are worried about how their attacker will respond to a report, or believe that they aren’t actually victims at all, and that they deserved what happened to them.[2] …So while there are a lot of reasons to be frustrated with the state of our criminal justice system, it appears we should have hope that we are moving in the right direction. If you’d like to talk to Devina about your criminal case, feel free to reach out. ________ [1] Survived and Punished, "Research Across the Walls: A Guide to Participatory Research Projects and Partnerships to Free Criminalized Survivors"). [2] See Institute of Medicine and National Research Council, Confronting Commercial Sexual Exploitation and Sex Trafficking of Minors in the United States: A Guide for the Health Care Sector. Social and legal commentators have observed that gang enhancements seem to be rarely applied toward the most serious and violent offenses, but instead are often applied toward misdemeanor offenses, disproportionately affecting people of color. According to the Young Women's Freedom Center "California's gang enhancement laws have caused immeasurable damage to our communities by criminalizing culture and relationships among people in low-income Black and Latino communities. While no empirical studies have been conducted to show that gang enhancements deter crime or violence, it is well documented that they have been applied inconsistently and disproportionately against people of color: 92% of people who receive gang enhancements are people of color. Gang enhancements have been the drivers of mass incarceration because of their vague definitions and weak standards of proof.”
Senator Kamlager, author of the bill that meant to change all this stated that the bill “just asks for the charges to be proven when they’re levied against someone. Right now, our system allows a shaved head, tattoos, or even the color of your grandma’s house as reason to be charged with a gang enhancement. That’s antithetical to how our judicial process should operate and I am glad we are one step closer to a fix.” A recent change in the law is seeking to address these concerns. With regards to gang enhancements, “The Step Forward Act” does four things to try to rebalance the scales of justice. First, it shortens the list of predicate offenses which support a finding that a person is engaged in a “pattern of criminal gang activity,” by removing looting, felony vandalism, and five personal identity fraud crimes from the list.[1]Second, it states that the current charge cannot be deemed one of these predicate offenses. Third, it states that the alleged benefit to the gang must be something more than a reputational benefit. In other words, the criminal activity must be something akin to obtaining a financial gain, an act of retaliation, targeting a perceived or actual gang rival, or the intimidation of a potential witness or informant. Lastly, the definition of what a constitutes a “criminal street gang” is modified, requiring not only that it’s an “organization,” but also that it’s an “organized association.”[2] In determining whether there is an “organized association” the courts will be looking for telltales like the group having as shot-callers, a hierarchy, economic organization initiation processes, specific colors, articles of clothing or a code of conduct. These changes were made in hopes that defendants who live in low-income areas, especially those of color, will no longer be viewed as gang members, simply because of criteria which are, in most cases, out of their control. _______ [1] The list of predicate offenses can be found in penal code section 186.22(e)(1)(A) through (e)(1)(Z). [2] The definition of a criminal street gang is now: “any ongoing organization, association, an ongoing, organized association or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in, or have engaged in, a pattern of criminal gang activity.” Not only is there stress and anxiety associated with the mere fact that a person has been charged with a crime, the act of going to court can be especially intimidating for many. While every criminal defendant has the right to be personally present with counsel at trial,[1] the law also says that in all nearly all misdemeanor cases, a defendant’s attorney may appear on their behalf, without the defendant having to be present, allowing the defendant to attend work, school, or to other obligations.[2] For defendants facing felony charges who do not wish to be personally present for noncritical portions of the proceedings (namely those where no testimonial evidence is taken,) they can also make an oral waiver in open court prior to the proceeding or may submit a written request to the court, asking that they be excused from the proceedings.
All of that said, even when a defendant has waived the right to be personally present, the court is allowed to require a defendant who is being held in any state, county, or local facility within the county to be present for noncritical portions of the trial by two-way electronic communication between the defendant and the courtroom in lieu of the physical presence of the defendant in the courtroom. But what happens when and in-custody defendant refuses to particulate with the process? …In short, prior to a recent change in the law, the system might grind to a halt. This was a because, in a lot of cases, the sheriff's department could be hesitant to physically remove the defendant from his or her jail cell to bring the defendant to court, fearing for the safety of themselves, or the defendant, or because they are concerned about the risk of contracting an illness, a fear that has been heightened by the COVID pandemic. Now, however, the court may allow a defendant to appear by way of their counsel for any matter, with or without a written waiver, if the court finds, by clear and convincing evidence: a) The defendant is in custody and is refusing, without good cause, to appear in court on that day for the trial, hearing or other proceeding, b) The defendant has been informed of their right and obligation to be personally present in court, c) The defendant has been informed that the trial, hearing, or other proceeding will proceed without the defendant being present, d) The defendant has been informed that they have the right to remain silent during the trial, hearing, or other proceeding, e) The defendant has been informed that their absence without good cause will constitute a voluntary waiver of any constitutional or statutory right to confront witnesses against them or to testify on their own behalf, and f) The defendant has been informed whether or not defense counsel will be present. A defendant is eligible to reclaim their right to be present at the trial as soon as they are willing to conduct themselves consistently with the decorum and respect.[3] __________ [1] Cal. Const., Art. I, sec. 15. [2] Penal Code § 977 (a). If the accused is charged with a misdemeanor offense involving domestic violence the accused shall be present for arraignment and sentencing, and at any time during the proceedings when ordered by the court for the purpose of being informed of the conditions of a protective order. (Penal Code § 977 (a)(2).) [3] Penal Code § 1043 (c). |
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