July 29, 2011

Glendale Considers a Permanent Ban on California Medical Marijuana Dispensaries

Just two months before a moratorium prohibiting California medical marijuana dispensaries from opening is set to expire, the Glendale City Council is considering a permanent ban on these so-called “pot shops”. Like many other cities and counties throughout the state, Glendale enacted the moratorium in an effort to prevent an over saturation of California medical marijuana dispensaries.

In California, people are legally allowed to possess, grow, buy and use marijuana if a doctor has recommended its use to help treat a physical condition. California medical marijuana laws also apply to the user’s “primary caregiver”.

Many people open medical marijuana dispensaries or cooperatives so that they can collectively grow and exchange marijuana in a legally recognized fashion. Others open up these shops hoping to make a killing on selling what they believe is legal weed, selling to persons who have not been deemed “qualified patients” under California’s medical marijuana laws.

As a result, these storefronts are frequently the subject of scrutiny and prosecution, which has lead to an increase in local ordinances that have banned their operation.

July 26, 2011

Appellate Decision Explores Limitations of California DUI Breath Testing Device

California DUI breath testing is not always accurate. A recent California Court of Appeals case focused on the electrochromatograph/infrared (“EC/IR”) breath testing device and the possible limitations of that device when it comes to taking “quality” breath samples.

In People v. Vangelder, the defendant was convicted by a jury for driving with a blood-alcohol level of more than 0.08% in violation of California Vehicle Code 23152(b).

At the trial, the judge did not allow expert testimony challenging the assumption that the EC/IR device samples only alveolar (deep lung breath) air. That decision was prejudicial error, the Court of Appeal held.

“Although breath test results are admissible if a reliable foundation for them is laid,” the Court held, “we think that such competent evidence of their potential inaccuracy, because of physical variabilities leading to poor data in sampling, should have been allowed to be considered, as going to the weight to be accorded the testing results.”

The court also clarified that the issue was not “partition ratio variability,” ref erring to the application of the standardized partition ratio calculation for converting breath levels to blood-alcohol levels.

Inaccuracies in California DUI breath testing also can be caused by equipment malfunction, mouth alcohol contamination and rising blood alcohol level.

July 26, 2011

False Impersonation in the Facebook Age

Thanks to a very misguided attempt at a joke, a teenage girl is dealing with a humiliating blow to her reputation and a teenage boy is doing time at a county juvenile probation camp.

Willfully using someone’s Facebook password for an unlawful purpose is a crime of identity theft in California.

In a recent California Court of Appeals decision, In re Rolando S., a Person Coming Under the Juvenile Court Law, the Fifth Appellate District affirmed a sustained juvenile petition against a minor for violating California Penal Code 530.5, one of several laws relating to identity theft in California.

In this case, after receiving the victim’s Facebook password via text message, the minor accessed the victim’s Facebook account, altered her profile in a vulgar manner and posted offensive and sexually suggestive messages on the walls of other teens.

The court concluded that the offense was “willfull” even though the minor received the victim’s password in a passive manner because he “was a free agent when securing the password for his future use.”

The court further ruled that the minor used the victim’s personal identifying information for an unlawful purpose, as required for identity theft in California.

Even if the minor’s inappropriate conduct was intended as a joke and did not rise to the level of annoying or molesting a child, the conduct could constitute “unlawful conduct” in the form of a civil intentional tort or a violation of a criminal law that deals with annoying people by way of an electronic communication device.

A helpful flowchart illustrating the rather complicated process of California juvenile delinquency cases in California can be found at California Juvenile Court Process.

July 22, 2011

Orange County Judge Agrees to Postpone Arraignment for Woman Accused of Penis Attack

An Orange County Judge agreed to postpone the California arraignment for the Garden Grove woman accused of cutting off her estranged husband’s penis and running it through the garbage disposal.

In case you haven’t heard, this is a very bizarre case of alleged torture and aggravated mayhem, where the defendant reportedly laced her husband’s dinner with drugs, cut off his penis with a 10-inch kitchen knife and then ran it through the disposal. If convicted, she faces life in prison.

The arraignment hearing in California is a defendant’s first opportunity to enter a plea of guilty, no contest or not guilty. In this case, the defense has received a one-month continuance which will allow the attorneys some additional time to investigate the case before entering the plea.

According to the defendant’s attorney, this case is not black and white. He claims “there is more than meets the eye”. Assuming that the defendant pleads not guilty and goes to trial, it will be very interesting to see what unfolds.

July 22, 2011

Online Presidential Threat is Considered Free Speech

Earlier this week, the U.S. 9th Circuit Court of Appeals overturned a Southern California man’s conviction for the threats he made in 2008 against Barack Obama in an online chat room. The court held that even though Walter Bagdasarian’s racist rant was “particularly repugnant”…as it suggested that Obama “will have a 50 cal in the head soon” and stated that someone should “shoot the [racist slur]”…it was protected as free speech since a “reasonable” person would not have taken his threat seriously in an online chat room at 1a.m.

In its 2-1 decision, the court ruled that Bagdasarian didn’t actually threaten to shoot Obama but rather predicted it. The judges didn’t believe that this type of prediction was subject to the federal statute that prohibited threats to kill, kidnap or do bodily harm to a major presidential candidate.

Bagdasarian claims he was drunk at the time he posted his comments.

July 13, 2011

Ninth Circuit Finds Signs of Coerced Confession But Petitioner Gets No Relief

Cops use a host of manipulative tactics to wrest involuntary confessions from suspects. One such tactic is making threats or promises with respect to a suspect’s children.

People are particularly vulnerable when it comes to their children and cops can push a suspect over the line by exploiting that vulnerability.

But thanks to the “highly deferential standard” of review applied in federal habeas corpus cases, Sacramento cops got away with it again.

In LaDell Brown v. R. Howell, the petitioner LaDell Brown was sentenced to life without parole for murder and attempted robbery. During the investigation, the polygraph examiner elicited an incriminating statement (later retracted) from Brown by exploiting his desire to see his unborn child.

On a writ of habeas corpus, the Ninth Circuit found “the record reveals that, as in [Supreme Court and Ninth Circuit precedent], [the polygraph examiner] coerced Brown into confessing by conditioning his ability to be with his child on his decision to cooperate with the police.”

But unfortunately for Brown, such bad police conduct wasn’t enough. To grant the writ, the Ninth Circuit needed to find more than a probable coerced confession through exploitation of the family relationship. The Court needed to find that the state court’s opinion was unreasonable in light of clearly established Supreme Court law...something the Ninth Circuit could not do given opinions issued in other Circuits.

Brown’s second argument, dealing with expert testimony in cases of coerced confessions, was also rejected.

July 13, 2011

Two Tulare Men Sentenced for Kidnapping, Carjacking and Robbery

Earlier this month, two Tulare County men were sentenced for carjacking a Delano produce vendor at gunpoint, driving him to a secluded area and stealing his cell phone and wallet. One of the men (21) was sentenced to 20 years in the California state prison after pleading guilty to robbery, carjacking using a firearm and one count of receiving stolen property. The other man (26) was sentenced to 17 years to life after pleading guilty to kidnapping for robbery, carjacking using a firearm, robbery and receiving stolen property. In actuality, they got off pretty easy since one of the actual crimes they committed was Penal Code 209.5 California’s law against kidnapping during the commission of a carjacking. This offense alone is punishable by life in prison with the possibility of parole.

You violate Penal Code 209.5 PC California’s law against kidnapping during the commission of a carjacking when you carjack someone’s car and drive away with at least one person still in the vehicle. But before prosecutors can convict you of this offense, you have to (1) move that person a substantial distance away from the site of the carjacking, and (2) the movement must cause that person more harm than what was merely incidental to the carjacking.

Given the facts above, the defendants met that standard. By driving the victim to a secluded area, they moved him further than that which was incidental to the carjacking and simultaneously increased his risk of harm by doing the same.

There must have been some mitigating factors (or problems with the prosecution’s case) that enabled their California criminal defense attorney to negotiate a plea bargain down to the 17 and 20-year sentences.

July 12, 2011

LAPD Officer Arrested for "Doctor Shopping"

The reputation of the LAPD’s Ramparts Area Station just took another hit. A 22-year veteran of the force, assigned to Ramparts, has been arrested on suspicion of engaging in the illegal practice of “doctor shopping.”

One of a number of California drug-related offenses, doctor shopping is made illegal by Health & Safety Code Section 11173(a).

Doctor shopping refers to practice of fraudulently obtaining prescription pills from a number of different providers without the providers knowing about the other prescriptions.

Doctor shopping in California is a “wobbler” offense, which means it can be charged as either a felony or a misdemeanor. Felony doctor shopping can result in up to three years in California state prison.

July 12, 2011

Posing as a Kidnapper for Ransom vs. Kidnapping for Ransom

California has a variety of laws that pertain to kidnapping, two of which relate to kidnapping for ransom. The first is prohibited by Penal Code 209 PC and deals with actually kidnapping a victim for ransom. The second is prohibited by Penal Code 210 PC California’s law against extortion by posing as a kidnapper.

If you actually kidnap a person in order to try to collect ransom or commit extortion, you violate California’s aggravated kidnapping law. This offense is punishable by life in prison with or without the possibility of parole, depending on whether the victim suffers death or bodily harm or is exposed to a substantial likelihood that he/she will suffer one of these fates.

If you pose as a kidnapper in order to try to collect ransom or commit extortion, you also commit a crime regardless of whether you (1) actually kidnap anyone, or (2) actually collect ransom or receive the benefit of the attempted extortion. This offense is punishable by up to four years in the California state prison, which is the same as a “regular” extortion charge.

The latter charge does not apply to a person who (1) believes that someone has been kidnapped, and (2) reasonably believes that he/she can rescue the victim. And this is the case even if the person collects a fee for those services, so long as he/she played no part in the fictitious kidnapping.

July 11, 2011

Think Twice Before You Falsely Imprison a Hostage to Avoid Arrest

As you’re about to leave the bank…thinking you have just successfully robbed it without being caught…the police surround the building. They demand that you surrender. You’re still intent on escaping, so you grab one of the bank customers and use her as a human shield in order to avoid arrest. With a gun to her head and your other arm around her neck, you drag her out of the bank and into the “get-away” car. Once you are ultimately apprehended, you will face a variety of charges, one of which is California Penal Code 210.5 PC false imprisonment of a hostage to avoid arrest.

When you falsely imprison another person as a hostage or human shield in order to avoid arrest, you commit a felony, punishable by up to eight (8) years in the California state prison.

But because of the very hostile nature of Penal Code 210.5 PC California’s law against falsely imprisoning a hostage to avoid arrest, there are a number of additional charges that this type of situation could easily trigger such as assault, battery and even murder if the hostage is killed (even accidentally) while you are falsely imprisoning her. And, depending on the circumstances, there are also a number of sentencing enhancements that could substantially increase your sentence as well such as causing great bodily injury to the victim, California’s criminal street gang enhancement and personal use of a gun.

So while eight (8) years may not seem so bad in exchange for the possibility of escaping responsibility for a crime, if the false imprisonment hostage situation goes awry, it could end up costing you a life sentence.

July 6, 2011

As Expected, Fourth of July Fireworks Wreak Havoc

Generally speaking, reports of property damage and bodily injury skyrocket following the fourth of July. Illegal fireworks are typically to blame. This year seems no different.

For example, The Orange County Register alone reported three local injuries from separate incidents: a 15-year-old suffered hand trauma when an illegal firework exploded in his hand, an 11-year-old boy suffered an eye injury when an illegal firework ricocheted from the ground and struck him in the eye, and a 37-year-old man was treated for second-degree burns and avulsions after an illegal firework landed on his foot.

California’s fireworks laws are strict and violations subject you to incarceration and fines. And if you are also accused of causing property damage and/or bodily injury, you will likely face civil charges as well. If you were arrested for engaging in any activity that involved possessing, using or selling illegal fireworks, you should immediately contact a California criminal defense attorney who will help fight your charge(s).

July 1, 2011

The Connection between California Criminal Threats and Domestic Violence

You violate Penal Code 422 PC California’s criminal threats law anytime you threaten to kill or physically harm another person when (1) your threat is specific and unequivocal, (2) you communicate that threat to the intended recipient verbally, in writing, via an electronic device or through a third person, and (3) the intended recipient reasonably fears your threat.

And because domestic violence often involves highly-charged, emotional outbursts, people who are involved in domestic disputes are frequently charged not only with acts of violence but with violating Penal Code 422 PC California’s criminal threats law as well.

In the heat of the moment, couples (or better yet, ex-couples) will threaten things they don’t mean. Unfortunately, that doesn’t matter when it comes to criminal threats. It’s the alleged victim’s reaction that controls this crime…not your intent. Even if you have no intention of carrying out your threat, you could still be convicted of this offense if the alleged victim reasonably fears that you can and will execute the threat. This also means that someone can falsely accuse you of making criminal threats…a very serious charge…with absolutely no proof.

So as difficult as it may be, if you know that you tend to have a temper with your significant other…or ex-significant other…be mindful of your words. They can get you in every bit as much…and oftentimes more…trouble than even using physical force.

July 1, 2011

Don’t Rely On California’s Fireworks Laws: Check Your Local Laws Before Purchasing Fireworks

California’s fireworks laws permit the general public to purchase “safe and sane” fireworks between 12pm on June 28th and 12pm on July 6th for use in their fourth of July celebrations. But before you go out and buy these fireworks…which, by the way, are the only fireworks that the public is allowed legally to possess and/or use…you should check with your local fire department and/or police department.

Some local laws are more restrictive than California’s fireworks laws, which means that if you are caught purchasing even safe and sane fireworks outside the permissible timeframe, you could face criminal charges.

If you purchase or possess illegal fireworks…which includes safe and sane fireworks that are purchased or possessed outside of the allotted times…you face a misdemeanor, punishable by up to one year in a county jail and a maximum $1,000 fine.

So play it safe and confirm your city’s local regulations before subjecting yourself to a possible jail sentence.

Have a safe and happy holiday!