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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). This information comes straight from the CDFW website:
On October 12th, 2000, Mary Lou Henderson Morris left home to go to work and disappeared.
While unclear what happened between then and her body being discovered later that evening, her car was eventually found, burned, on the side of the road only three miles from her home with her behind the wheel, her wedding ring missing. With her body so badly burned, it was near impossible to determine the cause of death. Then several days later, Mary McGinnis Morris was also found dead less than thirty miles away from where Mary Lou Henderson Morris had been found. Her body was also found in her car on the side of the road, and her wedding ring was also missing. Her clothes were torn. She had bruises. Police found fibers in her mouth, suggesting she was gagged just prior to her death. And she had a gunshot wound on her head. Had this Mary seen it coming? In the days prior, she reported to a friend having seen a man at a local store who had given her the creeps. Was he some random, deranged serial killer with a very specific "type"? Or was the killer someone she knew? The police suspected one of Mary #2's coworkers, with whom she'd never really gotten along. But they also suspected Mary #2's husband, who may have lied to the police about his alibi, who refused to take a polygraph test, and who retained a lawyer before even being identified as a suspect. (For anyone who reads this blog frequently, you know that reasons #1 and #2 are really lame reasons for suspecting someone of a crime.) The police never solved this crime, but plenty of suspicions abound. Given that both crimes involved Marys' wedding rings going missing--a common facet of contract killings; the killer uses the ring to prove the deed has been done--folks wonder if Mary #2's husband had hired a professional to take care of his wife, and the assassin had initially killed the wrong woman. Strange coincidence? Hired Killer? What do you think? 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. A lot of criminal defense attorneys are often asked whether a person who is legally prohibited from owning/possession a firearm is allowed to still own/possess guns such as BB or Airsoft guns. The person asking either has (1) a felony conviction, (2) a conviction for some other misdemeanor offense which nevertheless disqualifies them from gun ownership/possession, (3) a 5150 hold on their record, or (4) was adjudicated to be a mentally disordered sex offender, the most common reasons for the government to deny firearms access.
To understand why people in any of the above categories can own/possess airsoft or BB guns one need only look to the language of the law which defines what, exactly, a “firearm” is. Penal Code 1625 defines a “firearm” as “a device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of an explosion or other form of combustion.” While Airsoft and BB guns are often intentionally designed to look just like real firearms—and thus appeal to children and adults alike—they fire pellets via gas, spring, or electrical systems, and thus are not firearms. (All of that said, be aware San Francisco outlaws Airsoft guns entirely.) Other relevant facts:
If you'd like to set up an appointment to consult with Devina regarding your case, feel free to reach out to her here. While it may appear from the news that the number of Hate Crime events are on the rise, the evidence is actually to the contrary. The following information was taken from the "Hate Crime in California 2019" Report (the most current year for which data is available,) as published by the state DOJ.
Local law enforcement agencies are required to report hate crimes to the Department of Justice (DOJ) in compliance with California Penal Code Section 13023. California Penal Code Section 422.55 defines a hate crime as “a criminal act committed, in whole or in part, because of one or more of the following actual or perceived characteristics of the victim: (1) disability, (2) gender, (3) nationality, (4) race or ethnicity, (5) religion, (6) sexual orientation, (7) association with a person or group with one or more of these actual or perceived characteristics.” Overall Crime Data Summary
Hate Crime in California
Prosecutorial Data Of the 392 hate crimes that were referred for prosecution, only 288 cases were filed by district attorneys and elected city attorneys for prosecution. Of the 288 cases that were filed for prosecution, 200 were filed as hate crimes and 88 were filed as non-bias motivated crimes. Of the 166 cases with a disposition available for this report:
The following information was taken from the "Values Act 2019" Report (the most current year for which data is available,) as published by the state DOJ.
The California Values Act (Act) [1]defines the circumstances under which California law enforcement agencies (LEAs) may assist in the enforcement of federal immigration laws and participate in joint law enforcement task forces, and also mandates that California LEAs report specified statistics to the California Department of Justice (DOJ). Specifically, the Act requires California LEAs to report to the DOJ statistics about their participation in joint law enforcement task forces and their transfers of individuals to immigration authorities. Effective January 4, 2018, all LEAs were required to begin collecting data pursuant to the Act for submittal to the DOJ beginning on January 4, 2019. This report contains the data outlined in the statute for publication. As the data collection process is still in its infancy, and not all required agencies have actually reported their data yet, there is little data. What we know is this: The total number of arrests made by joint law enforcement task forces in 2019 was 15,672. That said, the total number of arrests made for the purpose of immigration enforcement by task force participants in 2019 was 35. _________ [1] as detailed in Government Code section 7284 et seq., and enacted by Chapter 495, Statutes of 2017 (Senate Bill 54), The following information comes from the 2019 DOJ report on Use of Force incidents throughout the state.
In 2015, the California legislature passed Assembly Bill (AB) 71, adding GC section 12525.2. This new statute mandates law enforcement agencies (LEAs) in California to report use of force incidents that result in serious bodily injury or death or involve the discharge of a firearm.[1] Effective January 1, 2016, all LEAs were required to begin collecting data on use of force incidents--not only those where law enforcement used forced, also where civilians used force. Due to the narrow definition of use of force in the statute, the data contained in the DOJ report only represent incidents where use of force resulted in serious bodily injury or death or the discharge of a firearm. Caution should be used in making comparisons or generalizations with this data set as it does not contain the full spectrum of use of force incidents that occurred in California. In 2019, Sonoma County reported 9 Use of Force Events. Incidents
Civilian Data
Officer Data
_______ [1] Serious bodily injury is defined in GC section 12525.2. Please see the Legislation section on page 6 for further detail. Discharge of a firearm - Includes any discharge of a firearm during an interaction between a civilian and an officer, regardless of whether any person was injured. A firearm is defined as a weapon that fires a shot by the force of an explosion, e.g., a handgun, rifle, shotgun, and other such device commonly referred to as a firearm. Not included in this definition are electronic control devices; stun guns; BB, pellet, air, or gas-powered guns; or weapons that discharge rubber bullets or bean bags. Injury severity - Severity levels below “serious bodily injury” are included in the data set due to the fact that reporting is required for any discharge of a firearm. While we all hope we never need to use force to defend ourselves or our property, sometimes a persona finds themselves in a situation wherein they seemingly have no other choice. Unfortunately the question of whether use of lethal force is justified in self-defense cannot be reduced to a simple list of factors, but here is a brief summary of the relevant law.
Lawfully Using Lethal Force in Defense of Life and Body The killing of one person by another may be justifiable when necessary to resist the attempt to commit a forcible and life-threatening crime, if a reasonable person in the same or similar situation would believe that:
It is lawful for a person being assaulted to defend themself from attack if he or she has reasonable grounds for believing, and does in fact believe, that he or she will suffer bodily injury. In doing so, he or she may use such force, up to deadly force, as a reasonable person in the same or similar circumstances would believe necessary to prevent great bodily injury or death. An assault with fists does not justify use of a deadly weapon in self-defense unless the person being assaulted believes, and a reasonable person in the same or similar circumstances would also believe, that the assault is likely to inflict great bodily injury. It is lawful for a person who has grounds for believing, and does in fact believe, that great bodily injury is about to be inflicted upon another to protect the victim from attack. In so doing, the person may use such force as reasonably necessary to prevent the injury. Deadly force is only considered reasonable to prevent great bodily injury or death. Limitations on the Use of Force in Self-Defense The right of self-defense ceases when there is no further danger from an assailant. Thus, where a person attacked under circumstances initially justifying self-defense renders the attacker incapable of inflicting further injuries, the law of self-defense ceases and no further force may be used . Furthermore, a person may only use the amount of force, up to deadly force, as a reasonable person in the same or similar circumstances would believe necessary to prevent imminent injury. It is important to note the use of excessive force to counter an assault may result in civil or criminal penalties. The right of self-defense is not initially available to a person who initiates the assault of another. However, if such a person attempts to stop further combat and clearly informs the adversary of his or her desire for peace but the opponent nevertheless continues the fight, the right of self-defense returns and is the same as the right of any other person being assaulted . Protecting One’s Home A person may defend his or her home against anyone who attempts to enter in a violent manner intending violence to any person in the home. The amount of force that may be used in resisting such entry is limited to that which would appear necessary to a reasonable person in the same or similar circumstances to resist the violent entry . One is not bound to retreat, even though a retreat might safely be made. One may resist force with force, increasing it in proportion to the intruder's persistence and violence, if the circumstances apparent to the occupant would cause a reasonable person in the same or similar situation to fear for his or her safety . The occupant may use a firearm when resisting the intruder's attempt to commit a forcible and life-threatening crime against anyone in the home provided that a reasonable person in the same or similar situation would believe that:
Defense of Property The lawful occupant of real property has the right to request a trespasser to leave the premises . If the trespasser does not do so within a reasonable time, the occupant may use force to eject the trespasser . The amount of force that may be used to eject a trespasser is limited to that which a reasonable person would believe to be necessary under the same or similar circumstances . Both the California penal and Welfare & Inbstututions Code set forth ways a person can be rendered unable to own/possess a firearm Here ia. brief summary.
Lifetime Prohibitions
10-Year Prohibitions Any person convicted of a misdemeanor violation of the following:
Any person taken into custody as a danger to self or others, assessed, and admitted to a mental health facility under Welfare and Institutions Code sections 5150, 5151, 5152; or certified under Welfare and Institutions Code sections 5250, 5260, 5270 .15 . Persons certified under Welfare and Institutions Code sections 5250, 5260, or 5270 .15 may be subject to a lifetime prohibition pursuant to federal law . Juvenile Prohibitions Juveniles adjudged wards of the juvenile court are prohibited until they reach age 30 if they committed an offense listed in Welfare and Institutions Code section 707, subdivision (b) . (Pen . Code, § 29820 .) Miscellaneous Prohibitions
If a conviction is rendering it impossible for you to own/possess a firearm, there may be ways to get that conviction removed from your record. Give Devina a call, and see if she can help! The following information was taken from the "Crime in California 2019" Report (the most current year for which data is available,) as published by the state DOJ.
Crime Rates per 100,000 Population
Arrest Rates per 100,000 Population at Risk
Dispositions – Adult Felony Arrests
Adult Probation
Criminal Justice Full-Time Personnel
Civilians’ Complaints Against Peace Officers
Domestic Violence-Related Calls For Assistance
Law Enforcement Officers Killed or Assaulted
Under California law, a defendant is mentally incompetent to stand trial if, as a result of a mental disorder or developmental disability, he cannot: (1) understand the nature of the criminal proceedings, or (2) assist counsel in preparing a defense in a rational manner, as the person simply isn't able to defend against criminal charges. But what dos that actually mean? It's often clearer to explain looking to whether a person is competent to stand trial. The courts have declared a that a person is competent to stand trial if they have “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding” and have "a rational as well as factual understanding of the proceedings against him." (Dusky v. United States (1960) 362 U.S. 402.) Unlike insanity, the inquiry looks to the person's current cognitive functioning, not that at the time the crime was committed.
There is a general misunderstanding out there that a person can be found incompetent to stand trial if they display strange behavior or are being uncooperative with the process. This is not the case. The person needs to demonstrate a genuine inability to assist with their defense. As they are often those who work most closely with affected defendants it is often defense counsel who raises a doubt that her client is competent to stand trial, but this doubt can be raised the the judge or any other official involved in the system. From there, that doubt is declared on the record and the defendant is evaluated my a qualified mental health provider to make the determination as to whether the defendant can assist in their own defense. If the mental health provider believes the person is competent, and after a hearing, if required, the court agrees, the criminal proceedings resume. If the mental health provider agrees that the defendant is not competent, and after a hearing, if required, the court agrees, then the defendant is ordered to participate in competency training, a term we use to describe the process of trying to restore the person to company, through counseling or medication. This training is typically done via the defendants commitment to a mental health hospital or placement is a suitable outpatient program. During this time, a judge can order that the defendant be administered medication against their will. If the defendant can be restored to competency, the criminal proceedings will be reinstated, picking up from where the proceedings previously left off. If they can't, then the defendant may be forced to remain in the custody of the mental health care facility for an amount of time up to the maximum term for the offense for which they were charged. Every New Years brings about a flurry of sometimes small, sometimes substantial, changes to the way in which our criminal justice system works. Here are the notable changes taking effect in 2021:
The Adult System
The Juvenile System
Changes to Law Enforcement Procedures
In California, a victim of a crime has certain right, granted to them under the State Constitution. These rights are often known as "Marsy's Law" rights.
The purpose of Marsy’s Law is to:
Marsy’s Law significantly expands the rights of victims in California. Under Marsy’s Law, the California Constitution article I, § 28, section (b) now provides victims with the following enumerated rights:
Would you feel so differently about the person selling you a new car that you wouldn’t buy a new car from him or her if you knew the salesperson had a recent conviction for Possession of a Controlled Substance? Probably not. But what about if the transaction you’re about to engage in is not buying a car, but having surgery? Would you be just as willing to let a doctor operate on you if you found out he had a similar conviction?
The State of California recognizes that in order to protect the public certain professions require those performing professional duties to hold themselves to a higher standard. Professionals such as lawyers, doctors, nurses, dentists, accountants, contractors, law enforcement officers, teachers and social workers are closely monitored by state licensing boards. As a result, professionals working in these industries often have more to lose than a little money and a little freedom if they are charged with a crime; they could lose their livelihood! The details surrounding what happens at the hearings conducted by Administrative Law Boards is outside the scope of this article, but rest assured any one licensed by the state is entitled to a hearing at which they can present their side of the case, it is the State that bears the burden of showing the licensee did something wrong, and the hearing is overseen by an independent Administrative Law Judge. One of ways in which licensing authorities find out about a licensee doing something that could give rise to a professional license suspension or revocation is through on-going criminal records checks, so don’t think that just because you don’t report a criminal conviction to the authorities doesn’t mean those authorities won’t find out. (And if you are working in a profession where you are required to report convictions, a failure to report would land you in even more hot water!) It is imperative for any licensed professional to do everything they can to minimize the collateral consequences of a potentially criminal act. If you are a licenses professional it is critical that your attorney knows about that fact, and that they work to resolve your case in a way that protects your license. Or if you have an old conviction, it’s imperative that your record is made as clean as possible under the law. Options for cleaning up your record include:
Past convictions can haunt you! If you have any sort of conviction on your record in California (or pending criminal charges,) that you feel is holding you back, reach out to Devina Douglas to discuss your options. Sonoma County is at a funny point in its handling of jury service right now in light of the COVID pandemic. Jurors are meeting—not at the courthouse, but at the fairgrounds. Very few trials are being held. But the county is still sending out lots of jury summons. Which begs the question (loudly these days, if you ask me): Does a person actually have to show up for jury service?
Yes. A person’s constitutionally-guaranteed right to a jury of one’s peers is one of the most important aspects of our criminal justice system, inspired by the idea that it shouldn’t just be the high ranking mucky-mucks, or government officials, or the “cool kids” who sit in judgement of the citizenry, it’s the citizens themselves. That’s why it is imperative that a person respond as directed to a jury summons, not just because it is a crime (potentially leading to actual jail time,) to ignore it. Once you’ve received that summons, take a close look at the date for which you’re supposed to respond. If you’re supposed to be somewhere else that day, because of an important medical procedure, or a pre-planned vacation, don’t worry! You get one free postponement, simply by mailing a request for postponement back. But unless you request a postponement, you’re going to need to follow the directions for reporting as indicated on the summons. (In Sonoma County, you can call or check the County’s website the night prior to your service date to see if you need to actually report in person.) If you’re called in to serve, but have a compelling reason why you should not be asked to be seated on an actual jury, you’ll have a chance to explain to the court why serving would be a hardship. Reasons accepted by the court include:
Yes, having to upset your daily life for jury service can be a real pain, but put yourself in the position of the defendant: would you rather have people from your own community sitting in judgment of you, or a default, nameless, faceless government entity? |
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