​Under both the US and California Constitutions, defendants are granted the right to a public and speedy trial. This right to a public trial is in place to ensure that defendants receive a fair and open trial, and therefore are not as likely to be subject to abuse by the judge or any other court officer. But the Constitution also guarantees the right of the public to observe and monitor these proceedings as the U.S. Supreme Court has often held that public access to criminal trials is necessary to ensure freedoms of speech and the press. The relevant caselaw, however, also points out that this right of public access is presumptive, not absolute.  Courtrooms can be closed to the public if it can be demonstrated that closing the proceedings serves a higher interest and that closure is narrowly tailored to serve that interest.[1]
 
California Code of Civil Procedure Section 124, which has just been amended in recognition of the challenges faced in ensuring public safety in light of COVID, protects the public's right to access trials and judicial proceedings in these ever-changing times.  Courtrooms have been closed to the public.  Many hearings have been held remotely, often with the general public unsure how to go about gaining access to the inline proceedings. As such, and as most of us working within judicial system have witnessed firsthand, the pandemic has limited constitutionally-protected public access to court proceedings. In one notable example, the Ojai Valley News sought to continue its coverage of events taking place within the Los Angeles Superior Court without sending reporters to the actual courthouse—as to minimize the risk of exposure for all involved—and requested remote access to proceedings in in the same way the court was providing remote access to parties and witnesses. The Court denied the request. When the newspaper cited the First Amendment and state law making all judicial proceedings presumptively public, the Los Angeles County Court responded that the reporters could have intended in-person proceedings, which satisfied the First Amendment and statutory right to public access.[2]
 
In light of issues like this faced throughout the State, California Code of Civil Procedure Section 124, was amended as of January 1, 2021, to read that (except as provided in the Family Code or any other relevant provision of law,) the court is prohibited from excluding the public from physically attending court proceedings just because remote access to the proceedings is available, unless doing so is “necessary to restrict or limit physical access to protect the health or safety of the public or court personnel.” Further, if the court is closed, it must “to the extent permitted by law … provide, at a minimum, a public audio stream or telephonic means … to listen…” to the proceedings. 


[1] See Richmond Newspapers, Inc. v. Virginia (1980) 448 U.S. 555; see also Press Enterprise Co. v. Superior Court of California (1984) 464 U.S. 501, and Press-Enterprise Co. v. Superior Court of California (1986) 478 U.S. 1.

[2] Los Angeles Superior Court letter to Jack Lerner, et.al. October 8, 2020.

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. ​
 

So many times my clients ask me if having a friend, family or community member write a letter on their behalf will help their case.  Sometimes it will, sometimes it won't.  ...But in those cases where a defendant could really benefit from having the DA (while we're in plea bargain negotiations,) or the judge get a glimpse into who "they really are," there are a few things the writer can do to ensure that their letter of support is as effective as possible. 

First, understand why the letter matters. Your defense attorney is hoping to use the reference letter demonstrate that their client is a respectful person who leads a full life outside the criminal justice system. The purpose of this letter is NOT to argue that the defendant is innocent. ​

•  EXAMPLE: ​I know Alyssa has pled guilty to being drunk in public. I am writing to offer a glimpse of who she is, and that is someone who is far more than the offense she pled to. 

Second, give the reader a reason to believe that the writer actually does know the defendant is a person worthy of leniency. To do this, the writer needs to explain how he or she knows the defendant, including the context and length of their relationship, and that the writer knows the extent of the legal woes the defendant is facing. 

• EXAMPLE: I have known Alyssa for 22 years, and we met when we were freshman in our college dorm. She and her lawyers have explained to me that she faces up to a year in jail, however I hope to show you she is deserving of a much lower sentence. 

Third, don't just tell the reader that the defendant really is a good person, show them.  Give specific examples of things the defendant has done that prove to you that the defendant is a worthy person. tell a story.

• EXAMPLE: Shortly after we moved into the dorms at Cal Poly, Alyssa told me that she had noticed that one of our dormmates, Nancy, never seemed to have anyone to eat with in the dining hall.  Although we had met this girl in the weeks before and at that time Nancy hadn't stood out as a person who we would really be friends with (she was too introverted and bookish,) Alyssa urged me to reach out to Nancy, and asked me if it would be okay if we invited Nancy to eat with us the next day. Nancy was hesitant to accept at first, but Alyssa kept asking Nancy questions to try to get her to open up to us. Alyssa also told Nancy about her own personal struggles at making friends and adoption to college life, hoping to make Nancy feel more comfortable.  We learned so much about Nancy that day she soon became one of our best friends. 

Fourth, provide a way for the reader to reach out to the writer, if need be.  Although the reader will seldom ever follow up, by providing a full name, and phone number or email address, the writer is not only demonstrating that their commitment to the defendant goes beyond writing a quick letter, it also sends the message that the writer is who they say they are. 

Fifth, in almost all cases, keep the letter to less than one page.  Judges and DA's are busy people and they may not take the time to read or really consider the contents of a longer letter.  Further, by keeping the letter short, it will help the writer keep their focus concise. 

Sixth, close the letter by thanking the reader for their time. 

Believe it or not, California is currently one of only five states which do not require boater certification or a boating license to operate a motorized watercraft, but all of that is about to change, in large part due to the number of reported boating-related deaths plaguing our state.   Due to the passage of Senate Bill 941, which was signed into law by Governor Jerry Brown on September 18, 2014, beginning on January 1, 2018, California require all boaters under the age of 20 to carry a California Boater Card issued by the California State Parks Division of Boating and Waterways while operating a motorized vessel on California waterways (but by 2025 everyone will need one). The new law requires vessel operators to take boater safety education classes as the U.S. Coast Guard reports those who have taken boater education classes tend to have fewer accidents. 

So those of you under 20 should probably start studying up.  Boat-Ed.com/California offers a detailed breakdown of the important California boating laws and regulations. If you are required to have a Boater Card and are found operating a motorized vessel the fines can range from between $100-500. 
Of course, there are some exceptions. Non-residents of the state, commercial fishermen, and those granted a marine operator license by the Coast Guard, along with those operating a vessel in an organized regatta or vessel race, or water ski race, will not be required to obtain a California Boater Card. 
To get a Card, you'll need to (1)  Complete a boating safety course, either classroom, home study or online, which is approved by NASBLA and the California Division of Boating and Waterways, and (2)  Apply for the California Boater Card online at CaliforniaBoatingCard.com. ​

​We’ve all heard it before: ignorance of the law is no defense. Police officers, prosecuting attorneys and judges alike utter the phrase to hold criminal defendants accountable in cases where the defendant had no idea he or she was breaking the law. But what happens when it is a law enforcement official, not a defendant, who is mistaken about the law?
            U.S. case law and common sense has long held that the courts will not impose criminal liability for a police officer’s mistaken understanding of the law.[1]  For example, the courts would never find you guilty of speeding for driving 45mph in a 50 mph-zone, even if the officer who pulled you over thought the speed limit there was 40 mph. But a U.S. Supreme Court, Heien v. North Carolina, case decided this past year held that the officer’s mistake of the law in the above scenario would still allow him to lawfully pull you over.[2] 
             To understand this decision, one first needs to understand the difference in the legal significant between a traffic stop and a criminal conviction.  While a criminal conviction potentially exposes a person to a significant loss of their freedom or their property, a temporary stop, like a traffic stop, only exposes the person to a brief delay.[3]  Because of this difference, the police need to prove beyond a reasonable doubt that you are guilty of a crime, but only need reasonable suspicion you have committed a crime in order to stop you.  The reason the police need to have a reasonable suspicion, as opposed to “just a hunch” is that the Fourth Amendment states that citizens have the right to be free from unreasonable searches and seizures.[4]  Without a doubt, a traffic stop is a seizure within the meaning of the Fourth Amendment,[5] so the next issue that needs to be addressed is whether it was reasonable for the police to stop a citizen when the citizen was not breaking any laws, yet the officer honestly believed the citizen had.[6]
In Heien, the defendant was driving down a North Carolina street when he was pulled over because he only had one working brake light.  It turned out, however, that in North Carolina, a driver only needs one working brake light and so the defendant had not committed a driving offense.  Once the defendant was pulled over, the police officer discovered cocaine in the car, and the defendant was prosecuted for, and subsequently convicted of, attempting to traffic cocaine.  The defendant appealed his conviction, knowing that if he could prove to a higher court that the traffic stop was unreasonable, the drugs the police found should have been ruled inadmissible, and therefore should not have been used against him.  Claiming that common sense dictates that it must be unreasonable for the police to pull you over for committing what turns out to be a non-crime, he argued the his stop was unreasonable.[7]
A majority of the Supreme Court disagreed.[8]
As there is a strong interest in ensuring the community is adequately protected, the court cited much precedent that supported the idea that even where the police make a mistake of fact, their actions could still be reasonable.[9] For example, if a police officer sees a person driving in the carpool lane, but cannot see anyone else in the car, the officer is allowed to pull the car over, even if the turns out that there are two small children sitting in the back seat, making the driver’s presence in the carpool lane legitimate. But the court here was not faced with determining the outcome of a case based on a mistake of fact, but instead based on a mistake of law.[10]  Because of this difference, the defendant asserted that the reasonableness of a potential mistake not be treated the same way.[11]  While the officers are forced to “mak[e] factual assessments on the fly” and thus are allowed some leeway to make mistakes, the defendant argued that officers should know the law, and therefore should not have to make decisions “on the fly.”[12]  Nevertheless, the Court still held that “to be reasonable is not to be perfect,” especially as the law is often  open to interpretation.[13]
What this means for us is that the police now a little more leeway in deciding whether or not there is probable cause to stop you. It remains to be seen how much leeway the courts are willing to give officers in determining if their mistake of law was “reasonable.”
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[1] Heien v. North Carolina, 574 U.S. ___ (2014).

[2] Heien v. North Carolina, 574 U.S. ___ (2014).

[3] See Terry v Ohio, 392 US 1 (1968).

[4] U.S. Const. Amend IV.

[5] Brendlin v. California, 551 U.S. 249, 255–259 (2007).

[6] See Heien v. North Carolina, 574 U.S. ___ (2014).

[7] Heien v. North Carolina, 574 U.S. ___ (2014).

[8] Heien v. North Carolina, 574 U.S. ___ (2014). Justice Sotomayor dissented.

[9] Id.

[10] Heien v. North Carolina, 574 U.S. ___ (2014).

[11] Heien v. North Carolina, 574 U.S. ___ (2014).

[12] See Heien v. North Carolina, 574 U.S. ___ (2014) (Sotomayor, J., dissenting) (quoting Cheek v. U.S., 498 U.S. 192, 199, which stated “the notion that the law is definite and knowable” sits at the foundation of our legal system.)

[13] Heien v. North Carolina, 574 U.S. ___ (2014). 

​Most of us were raised to know that when we do something wrong, the right thing to do is to take responsibility for our actions. Owning up to our mistakes nearly always guaranteed a fair and just punishment. Because of this, it seems intuitive then that when we get into trouble with the law, the same principles should apply, leading us to wonder why we need a lawyer at all.  After all, why do we need to pay someone to stand there beside us when we throw ourselves on the mercy of the court? 
The answer is simple: because the law is often times so complex that even the most straightforward cases can have surprising twists and turns.  Lawyers pride themselves on their ability to zealously represent their clients, in other words, doing everything they can within the bounds of the law to ensure that their client wins. Without someone in your corner who can help you determine if the other side is asking for a lot from you because their client has a very strong case or because they are merely pushing for every advantage, it can be hard to know if you are getting a fair deal.
When debating whether to hire a lawyer, it is important to keep in mind what is at stake.  In a civil case, it’s often either your money or property at risk. In a criminal case, however, you stand to lose your money, property and your freedom.  So while you probably don’t need a lawyer to help you handle fighting the ticket you got for driving 67 mph in a 65 mph-zone, if you’re charged with even a slightly more serious crime, having a lawyer in your corner can really pay off.  Here are the ways in which retaining a lawyer can definitely help:

• Discovery: In most cases, whenever you go to court, you have the right to know what evidence the other party has against you.  The process of finding out what the other side knows is a called discovery, and a lawyer will be able to explain to you what information you’re entitled to have, how soon the other side needs to give it to you and, perhaps more importantly, can help you get it if the other side is resisting. A lawyer can also tell you what information you may have to turn over to the other side, and what information you can keep to yourself.
• Tackling timing issues: In order to keep the system running efficiently, the courts and other administrative agencies (like the DMV, for example,) have constructed a system full of deadlines. In some instances, missing these deadlines can extinguish some of your rights.  For example, if you’re charged with a DUI, not only are you subject to punishment from the courts, you are subject to punishment from the DMV, which has the authority to suspend or revoke your driver’s license.  Just like in the criminal justice system, you have the right to a hearing with the DMV, allowing you to present your side of the case, before this happens. However, something a lot of people don’t know is that the DMV can suspend your driver’s license automatically unless you notify the DMV within 10 days of the incident that you wish to have a hearing on the issue.
• Determining whether you need to appear: Something else a lot of people don’t know is that for some crimes and at some stages of the proceedings, you don’t even need to personally appear in court; your lawyer can appear on your behalf.  This can mean not having to miss as much work, not having to travel to the courthouse, and not having to deal with the stress of appearing before a judge.  For some people, these economic and emotional savings outweigh the cost of hiring a lawyer.
• Rights:  You have a lot of rights, especially in criminal matters. A lawyer will ensure that you are afforded the full advantage of every one of these rights, and that no one in the system takes advantage of you.
• Investigators: Most law firms have the ability to hire investigators to independently research the facts of the case.  Not only are most witnesses to an incident more willing to talk to an investigator than they would be in talking to you, a lawyer’s investigator has experience in talking to people who may not want to admit they witnessed an event, they know what questions to ask, and they have the ability to look into a witnesses background to help establish or refute that witnesses credibility.
• Negotiations:  Most legal matters start off with one side asking for more than they expect to get in the end.  Lawyers have experience in recognizing when a deal is as good as it’s going to get, and when they can push for more.   Also, by having a lawyer negotiate on your behalf, the negotiations tend to be less emotionally charged, ensuring the discussions are based on facts and you get an equitable result.
• Making it all go away: In California, there are some crimes which can effectively be erased from your record if you successfully complete probation.  A lawyer can not only tell you which crimes can be expunged from your record, and which can’t, a lawyer can handle all the legwork needed to erase the conviction from your record, if you are eligible.

 
If you think you might need a Criminal Defense Attorney in the North Bay Area, feel free to contact Devina Douglas.