May 24, 2011

Los Angeles Mayor Villaraigosa Issues Statement – Predatory Lenders Beware

The California Attorney General announced yesterday that the state has a new Mortgage Fraud Taskforce. This team, comprised of lawyers and investigators from the California Department of Justice, will investigate and prosecute those suspected of predatory lending practices and other fraudulent mortgage-related practices. Mayor Villaraigosa praised this program, stating that the Task Force “is certain to help thousands of residents and families from being victimized by instituting the critical law enforcement component to help stop the practice of predatory lending once and for all.”

California predatory lending schemes have been on the rise since our economy began to decline. This type of fraud takes advantage of unsuspecting borrowers and wreaks havoc on distressed homeowners and lending institutions alike. Predatory lenders “prey” on unsophisticated buyers, convincing them to accept unjustifiable and unreasonable loan/refinance terms, which they ultimately cannot afford to repay.

Engaging in acts of predatory lending subjects you to state and federal prosecution under a number of different laws including (but not limited to): grand theft, forgery, and conspiracy. A conviction for this offense triggers prison time, substantial fines, and professional discipline.

May 19, 2011

When Can Prosecutors File Charges Against a Minor in Adult Court in California?

The most recent twist in the shocking alleged shooting death of an Orange County Neo-Nazi activist by his 10-year-old son is the filing of a criminal complaint against his stepmother alleging child endangerment.

There’s no question the 26-year-old stepmother will be dealt with if at all by the adult criminal justice system. But what about her 10-year-old stepson? When can prosecutors file charges against a minor in adult court in California?

The answer is it depends…but in no event does California law allow a 10-year-old to be charged with murder in adult court…no matter how serious.

Generally speaking, juvenile delinquency court in California has jurisdiction over minors who violate laws when they are under the age of 18. The proceedings are considered civil as opposed to criminal in nature and a sustained petition in juvenile delinquency court leads to a juvenile “adjudication” as opposed to a “conviction.”

But in very serious cases, minors who are 14 and over can be charged under the general law in courts of criminal jurisdiction. That means they can be tried in adult criminal court. Under Welfare & Institutions Code Section 707, those cases include murder, robbery, carjacking, kidnapping and committing a felony while personally armed with a firearm, under certain circumstances.

Indeed, in the most serious cases, minors 14 and over must be must be tried in adult court. Under W&I Sec. Section 602(b), those cases include special circumstances murder where the prosecutor alleges the minor personally killed the victim and certain kinds of sex offenses.

May 19, 2011

Men Aren’t the Only Ones Who Can Be Arrested for Domestic Violence

Playboy playmate, Shauna Sand, and her husband, Laurent Homburger, were both arrested last night on suspicion of domestic violence. The two reportedly got into a heated argument after Sand told Homburger that she wanted a divorce. As the argument escalated, Sand locked herself in the bedroom. When Homburger kicked in the door, Sand sprayed him with pepper spray.

When the Beverly Hills police arrived, both were arrested – Sand on felony domestic violence charges based on the visible marks she left on Homburger, and Homburger for spousal battery and making criminal threats.

Many people incorrectly believe that it is only men who can be arrested for domestic violence. Clearly, this isn’t the case. While it’s true that most allegations of domestic violence are directed at men, women are just as likely to lash out at their partners. And when…in a case such as this…both parties report abuse, both the man and woman would likely be arrested. Once the prosecuting agency receives the case, it will consider the circumstances to decide who to file charges against, if against anyone at all.

When there are no witnesses to a domestic dispute, it may be difficult for the prosecution to prove the case. “He-said, she-said” allegations without more are a nightmare for the prosecutor. And in this type of situation, if charges are filed, they will likely be reduced to misdemeanors.

May 17, 2011

Los Angeles Man Convicted of Hate Crime for Attacking a Man He Believed was Gay

A Los Angeles man pled no contest to a hate crime and misdemeanor battery charges today in exchange for a six-month county jail sentence, three years of probation and psychological counseling.

The victim in this case complimented 35-year-old Johnny Rene Serrato on Serrato’s sunglasses as he was stepping onto a bus. Serrato…believing the victim was gay…beat the 39-year-old man, leaving him with a bloody nose, swollen cheek, bump on the head and multiple bruises.

California’s hate crime laws prohibit harming, threatening or harassing people based on their perceived race, national origin, disability, religion, sex, gender or sexual orientation. Whether or not the victim was gay is irrelevant – all that matters is that Serrato beat the victim because he believed he was gay.

But if, for example, Serrato and the victim had an argument…and Serrato punched the victim because he was antagonizing Serrato…the fact that he turned out to be gay would not subject Serrato to penalties under these hate crime laws. You only face hate crime penalties for crimes you commit against people solely based on animosity for the protected group. The fact that someone happens to belong to a protected group doesn’t matter unless his/her “membership” in that class supplied the motivation for the crime.

May 16, 2011

Another Taser-Related Death Prompts Excessive Force Inquiry

Over 350 people have died in the United States after being tased. Tragically, that number just got higher.

Allen Kephart died after being tased about eight times by San Bernardino Sheriff’s deputies at a Crestline gas station. The cops contend that Mr. Kephart became combative after a traffic stop, thus justifying use of “less-lethal” force. But Kephart’s father – himself a volunteer member of the Sheriff’s Rangers – describes his son as peaceful and hard working.

Kephart weighed 350 pounds and had high-blood pressure. Dangers associated with taser use increase when the target has certain heart conditions.

We have not heard the last of this unfortunate story. As the police investigate, they will need to ask a key question: Did the deputies’ use of the taser constitute excessive force under the circumstances?

Tasers are considered an intermediate use of force and their use by law enforcement is subject to scrutiny under the Fourth Amendment.

The test for whether use of a taser constitutes excessive force is whether a reasonable police officer would have felt the need to use such force given the totality of the circumstances, including the severity of the alleged crime, the threat to public safety and the resistance of the subject.

May 11, 2011

Lindsay Lohan Applies for House Arrest

When Actress Lindsay Lohan reportedly stole a necklace from a Venice jeweler, she violated the terms of her DUI probation by failing to obey all laws. As a result, she was sentenced to serve 120 days in jail. Yet despite this sentence, she would probably only spend about 14 of those days in jail due to “good behavior” credits and overcrowding. But instead of going to jail, Lohan has applied to be a part of the home electronic monitoring program, otherwise known as house arrest.

If she qualifies for house arrest, Lohan will be allowed to serve her time at home in lieu of county jail. She will most likely be fitted with a GPS tracking device that she will wear on her ankle. Whether or not she will actually have to remain in her home will depend on what type of restrictions the judge imposes. Many people who are placed on house arrest…otherwise known as home detention or electronic monitoring…are allowed to leave their homes, provided they abide by a curfew and only travel to locations that have been preapproved.

Lohan must surrender to the Los Angeles Sheriff’s Department on June 17 at which time she will be taken into custody or permitted to complete her sentence on house arrest.

May 2, 2011

Must Police Respect the Privacy Rights of House Guests?

Does a defendant have a reasonable expectation of privacy in the home of a friend? Not if he’s only in that home as a means to evade cops, according to the California Court of Appeal, First Appellate District in a recent decision dealing with Fourth Amendment California search and seizure law.

The case of People v. Magee arose after cops spotted what they thought was a drug deal taking place in a well-known narcotics trafficking area of Vallejo. Officers pursued the suspect, who ran into a nearby home owned by his friend. Without a warrant, officers chased the defendant into a locked bathroom in the home, where they allegedly saw him flush what appeared to be cocaine down the toilet.

He was charged with possession of cocaine base for sale among other offenses.

The trial court suppressed the evidence from the locked bathroom, but the Court of Appeal reversed. The justices reasoned that under Fourth Amendment California search and seizure law “social guests” enjoy a reasonable expectation of privacy in homes where they are guests, but only when the purpose of the visit is in fact socializing.

“Although a regular guest such as defendant may well have a legitimate expectation of privacy during a social visit,” the court wrote, “that does not mean that society is prepared to recognize as reasonable the privacy expectation defendant claims here: an expectation that his ongoing social relationship with the residents of the Mark Avenue house meant that he could use the house as a sanctuary to escape contact with the police.”

The state high court also had occasion to look at Fourth Amendment California search and seizure law recently. In People v. Troyer, the California Supreme Court held that cops could search a locked bedroom under the “emergency aid” exception for warrantless searches when they had been summoned by a 911 call to that residence on the grounds of a possible shooting (even when a victim on the porch informed the officers that the perpetrator had already fled the scene).