San Jose Criminal Defense Lawyer Blog

Santa Clara County is one of the few jurisdictions not to provide some kind of legal representation to indigent defendants at their first court appearance. However, a new county policy change will take effect throughout the San Jose and other county courthouses where the Public Defender will provide a representative to assist people at their arraignment on misdemeanor charges.

Typically, too many defendants charged with a misdemeanor plead guilty at the arraignment after a judge informs them of their rights and provides an indicated sentence. This is true of driving under the influence charges, where the judge informs the defendant that he or she can continue the matter to seek out an attorney or plead guilty on the spot and receive the court's sentence. This of course precludes putting up a defense, especially when in Santa Clara County the punishments are often harsher than San Mateo, San Francisco and other surrounding areas.

Usually in these circumstances a Sheriff Deputy is present handing out waiver of right forms, merely anticipating that some or many of the defendants appearing at their arraignment will plead guilty. Although no pressure is placed on these people, the effect is to have more people plead right on the spot. Often, the defendant does not understand the other collateral effects of a guilty plea and conviction without legal representation on hand. Such consequences can be lifetime sex or narcotics registration, lost of driver's license or deleterious effects on immigration status.

It unclear whether misdemeanor cases in Santa Clara County will be expedited or slowed down by this change, but the county has been playing with fire for not providing some representation early on. This new policy will begin with a pilot project at the San Jose Hall of Justice.

Source: Mercury News.

The Mercury News has reported that a 17-year old San Jose boy will be tried as an adult in the armed robbery of family living in Campbell. Stanford Hauser was arrested with two other young adults after the group robbed the household of 25 branches of what is described as medicinal marijuana plants. The Mercury reported that Hauser was armed with an AK-47 and allegedly made threats to members of the family.

Hauser is being charged in adult criminal court with armed robbery with an additional gun enhancement. Robbery carriers a prison term sentence of three, six or nine years. With the gun enhancement he could be facing an additional ten years in the state penitentiary. To further complicate matters, Hauser may be facing additional charges of making criminal threats and assault with a deadly weapon.

Although Hauser is a minor at age 17, the Santa Clara County District Attorney's Office has decided to treat and try him as an adult. The factors that go into treating minors as an adult for criminal prosecution vary, but usually include: the age and social background of the juvenile; the nature of the alleged offense; the extent and nature of the juvenile's prior delinquency record; the juvenile's present intellectual development and psychological maturity; the nature of past treatment efforts and the juvenile's response to such efforts.

Little is known about Hauser and his prior criminal history, but the nature of the offense alleged is severe. As the Mercury News correctly points out, Hauser is the twelfth minor to be charged as an adult this year.

The RAND Corporation has released a new study that finds that crime rates tend to increase in neighborhoods that have recent marijuana dispensary closures. The study reviewed data related to 638 dispensary closures in Los Angeles; specifically the study reviewed crime rates 10 days before the closure and ten days after the closure. The crime rates in the blocks near to the closed dispensaries were then compared to the neighborhoods where the dispensaries remained open.

The authors of the study report that the crime rates in the areas close to the dispensary were 60% greater than the areas near the dispensaries that remained open. The effect seems to diminish the farther out you go from the effected area.

This research effort was made as a response to many marijuana dispensary closures in Los Angeles and elsewhere. The closures were said to be done in response to rising crime rates in the areas and neighborhoods located near the dispensaries. Santa Clara County officials are on record indicating that crime rates do in fact rise, sometimes exponentially in areas near dispensaries. (See the Examiner online for more details).

Some argue that the public dispensaries create a nuisance and attract and create criminal behavior. However, RAND indicates that that claim has not be scientifically studied and that the RAND report is the" first systematic analysis of the link between medical marijuana dispensaries and crime." Full for article click here.

Here in San Jose, a marijuana dispensary has been under investigation related to a series of crimes including carjacking, kidnaping and the murder of a 60 year woman. A warrant was issued for the co-owner of the dispensary (Juan De La Cerda) alleging him of aiding and abbetting Paul Castillo, who is believed responsible for the crimes. The warrant has since been withdrawan, although San Jose Authorities still want to question De La Cerda. An employee has been arrested for transporting Castillo to Sacramento.

Although wounded, Castillo remains at large. For the full article click here.

The Sheriff's Department in Marin seized more than 500 marijuana plants, the Mercury News reports. The Sheriff indicated that the operators of the marijuana farm diverted water from a neighboring property to grow the plants, that ranged from six to ten feet tall. The growers were seen fleeing the scene but no one was apprehended. It took the department about seven hours to remove all the plants from the vicinity.

Last month Bay Area police discovered more than 2,000 plants in the Marin area and another 500 at the Skywalker Ranch. Police report that they have seized approximately $1 million in marijuana just this last week, with the help of Federal resources.

It is unclear whether anyone has been arrested in these series of raids from last month.

Although not applicable here, the strongest defense for growing and using marijuana is for specifically prescribed medical treatment. The Compassionate Use Law provides that those statutes which prohibit possession and cultivation not apply to patients and caregivers "who possess or cultivate marijuana for the personal medicial purposes of the patient upon the written or oral recommendation or approval of a physican."

The law lists eight specific illnesses but also provides a catchall phrase: "or any illness for which marijuana provides relief." Although the law allows the cultivation of six mature and twelve immature plants, it also provides the patient to provide that amount of cannibis consistent with his or her needs.

The plant operation in Marin county is more likely gang or Mexican cartel related, which typically establish farms in isloated areas with plenty of vegetation on the ground and overhead.

Some have suggested that legalizing marijuana would damage drug cartels as it would cut a great deal of revenue to them (maybe by 50%). This is, however, a controversial topic, but one that should at least be discussed in the near future.

A California company, with outlets in the Bay Area, is set to open a "mega-sized" outlet dedicated to the increasing needs of cannabis growers in Arizona. Opening on the same day as when the state will issue 125 permits for cannabis dispensaries, the California company WeGrow is set to sell everything cannabis growers need to grow marijuana, except the plant itself.

What is being called the Home DePot of Arizona, may be put on hold however, as state officials are asking the federal courts if its citizens are at risk of being charged by the Federal Government. The U.S. Code still lists cannabis as an illegal narcotic and its use, sale and possession a crime.

Ever determined, WeGrow has indicated that the Bay Area company has plans to open outlets in Denver, and Detroit, in what will be a multi-multimillion dollar business. (Please see Reuters article dated June 2, 2011).

Proposition 215, passed by the voters of California in 1996, allows for the prescribed use of medicinal marijuana to treat specified (and in some cases unspecified) illnesses where other forms of treatment provide little assistance to the patient. However, the law provides no protection to employees from being fired for using cannabis, even when the employee has a valid prescription.

State Senator Mark Leno, San Francisco, introduced Senate Bill 129,passed by the Legislature and signed into law by Governor Brown, which prohibits employers from firing any employee who tests positive for cannabis and has a valid marijuana prescription. The new law does not allow for the use or the possession of marijuana in the workplace; rather it protects qualified patients from employment termination or discrimination for testing positive.

Specifically, the law makes it unlawful for an employer to terminate an employee for 1) being qualified as a medicinal marijuana patient or 2) testing positive for marijuana use, if that person is a qualified patient. The law also provides for damages and injunctive relief for the employee wrongfully terminated under the law. Further the law would not apply to "safety sensitive" positions where a person being treated with medical cannabis might "endanger the health and safety of others." The law goes on to define what a safety sensitive position is.

Last year the People of California refused to pass an initiative that would have made the possession and use of cannabis legal. Federal law still prohibits the use and possession of marijuana under any circumstances and defines it as a dangerous drug. However, despite some Federal raids of cannabis dispensaries in California, it is unlikely that the Feds will crackdown on the personal use of marijuana.

Source: http://www.leginfo.ca.gov/

Continue reading "New Legislation Will Protect San Jose Workers" »

In an interview with the local NBC news affiliate, newly elected District Attorney Jeff Rosen said that investigating and shutting down cannabis dispensaries will no longer be a top priority for his office. This announcement comes after an early revelation that Mr. Rosen has ordered one of his deputies to research the gray and confusing area of California marijuana laws, particularly the law on dispensaries. The underlying issue is whether cannabis dispensaries can exchange cannabis for cash as they are defined as non-profit associations.

In 1996 the people of California voted for Proposition 215, otherwise known as the Compassionate Use Law. Prop 215 allows patients suffering from cancer, AIDS, chronic migraines and other ailments, the right to buy, grow and possess marijuana for medical treatment, so long as they have a valid prescription. As the law stands a person with a valid medical card may grow, buy and possess as much cannabis as needed to treat the illness, so long as it is only for personal use.

Unfortunately the language of Prop 215 is vague and sometimes ambiguous. The courts have attempted, with a modicum of success, to clarify the gray areas. Cannabis clubs have come under particular scrutiny because they exchange marijuana for cash. Under the law such dispensaries must do business without making a profit. Critics of the dispensaries argue that accepting money violates the non-profit requirement. Supporters of cannabis clubs argue that the money received goes to operating costs, maintenance and the like, much like a charity or any other non-profit.

Law enforcement came under fire last year after a series of cannabis raids resulted in the arrest of dozens of people and forfeiture of club assets. Some raise concerns that legitimate cannabis volunteers are being prosecuted and cannabis assets seized and not returned. The accusation is that law enforcement have an interest in raiding the clubs because portions of the seized assets are distributed to the various police agencies. Some of these agencies have vowed to continue investigating the local cannabis dispensaries despite the District Attorney's more reflective approach.

Continue reading "Santa Clara to Ease -Up on Cannabis Dispensaries" »

After a year of marijuana busts at local Bay Area cannabis dispensaries, the City of San Jose has levied a tax on these businesses. Despite the fierce prosecution of these cases by the Santa Clara County District Attorney, San Jose has effectively announced that the dispensaries are legitimate businesses.

Under the 1993 Prop 215 law, such dispensaries are to be non-profit and their books made available to the public. Some in law enforcement and the DA's Office have argued that the dispensaries operate on a cash basis and do in fact make profits. The law is muddy and poorly written. It is unclear how a non-profit is defined under the law.

Even more surprising is the new (or maybe new) outlook the District Attorney may be having when it comes to marijuana. Newly elected DA Jeff Rosen has ordered one of his deputies to review the current status of the law, including the language of the statute and subsequent case law and to report back any necessary changes law enforcement should make. This is striking, because last year, under Rosen's predecessor, Santa Clara County saw a rash of cannabis raids, arrests and prosecutions. It appears that the District Attorney may be trying to achieve a balance between legitimate cannabis sales and those that do not meet the standards of Prop215 Compassionate Use.

Unfortunately San Jose's new Police Chief Chris Moore seems to remain skeptical about any new changes. We will see how strong Jeff Rosen will be against the law enforcement's zeal for arresting and prosecuting people protected under Prop 215.

Continue reading "San Jose to Tax Marijuana Dispensaries" »

With the severe budget crisis California is facing and a prison system swelling with inmates, California Governor Jerry Brown has proposed that some "low level" inmates be shipped to local county jails, including here in Santa Clara. The proposal would send 37,000 inmates, who are low level offenders such as drug offenders and probation violations, to county jails. It is estimated that this would halve the cost of housing such inmates at the state level and would allow loved ones to have easier access to them.

Here in Santa Clara County, nearly a third of the jail beds are empty. With lower crimes rates, there are similar numbers in other counties.

Another part of the idea is to open up access to community groups, so that some inmates can receive support, programming etc. For instance, people with marijuana convictions can receive drug treatment while in custody or other outreach type of programs. Even job training is provided to some inmates

Brown's proposal is not original: it has been attempted before. However, since we are sending people to prison for trivial offenses and because of the budget crisis the idea is beginning to pick up some momentum.

The real lesson of course is: stop sending people to Pelican Bay for using marijuana or violating probation for possessing drug paraphernalia. It's pretty simple really.

Jeff Rosen, the recently elected District Attorney for Santa Clara County officially takes his seat today. However, Rosen enters his new job in an office plagued by scandal, corruption and questionable ethics. Rosen has promised to clean-up the image of the office, but that is indeed a tall order.

Over the past several years Rosen's predecessor, Dolores Carr promised the same thing: greater transparency, strong ethics and inter-office reform. However, the last four years witnessed an uncanny number of ethics charges against certain deputy district attorneys. Allegations of withholding exculpatory evidence, misleading and refusing to follow judge's order and other abuse have been cited. Carr herself ordered her deputies to ban a Superior Court Judge she thought unfriendly. Carr has been known to defend these prosecutors rather than discipline them. Several of these attorneys are being held accountable by the California State Bar.

Rosen first acts should be to set up a new discipline policy, with a board that supervises and disciplines acts of misconduct. The office should implement new polices of punishment and dismissal. Rosen should be more transparent about ethics charges and ready to pursue disciplinary action.

It is hoped, although not expected, that Rosen will also implement new policies toward drugs and alcohol cases. This attorney would like to see a diversion program for first time DUI offenses. We treat drug cases very differently than alcohol, and it might be time for a change. Perhaps something equivalent to DEJ or Prop 36 for first time DUIs? Just a thought for the new DA.

The Santa Clara County Special Enforcement Team has intensified its war on cannabis and other illicit drug activity. Twenty-two people were arrested this week relating to a marijuana sales ring here in the South Bay. According to police and the Attorney General's Office, members of the ring sold and delivered their goods to a wide-spectrum of people. It is illegal in California to deliver marijuana unless you are a primary care-giver. Local law enforcement also discovered 25 pounds of marijuana, 9 firearms and 223 cannabis plant (not quite within the limits of "compassionate use." Details of the bust, dubbed the "Up in Smoke Sting," were not given to reporters.

The sting might have cannabis dispensaries on edge because many of them also act as a delivery service. For such dispensaries to legally deliver they must have a "pre-existing" relationship with the patient, someone who has a recommendation from a physician to use marijuana for a medical condition. Most medical marijuana users register with specific dispensaries.

Santa Clara Police Chief Stephen Lodge told reporters: "I believe this is just the tip of the iceberg of people who are hiding behind the voter approved concept of medicinal marijuana to sell illegal drugs on an unprecedented scale." However, this one sting operation does not prove that there is a large cannabis conspiracy in the San Jose area.

Continue reading "Santa Clara County Steps-Up Drug Raids" »

In a surprising announcement yesterday, San Jose's former police chief of 35 years has endorsed Proposition 19, California's controversial ballot initiative that would legalize marijuana for recreational use. Joe McNamara, now retired, compared the ban on marijuana to the days of prohibition, when the Federal Government banned the sale and consumption of alcohol. He further argues that the ban on pot (as opposed to its use) is the cause of the crime and violence that many people associate with the drug.

Specifically, McNamara says:

In an article written for the San Francisco Chronicle, the former police chief refutes four dire claims made by opponents to Proposition 19:

1. Empirical statistical evidence shows that legalizing cannabis will lower its use among young people, 18-35 years of age. McNamara cites other countries that have no bans on marijuana and suggests that marijuana use is much lower than in the United States. In fact, America has the highest usage rate of marijuana. McNamara further cites a Columbia University study that states underage people find it easier to obtain pot than alcohol.

2. Lifting the ban will not add another drug to the already increasing list of available drugs and narcotics. Further, cannabis use will be highly regulated under the Regulate, Control and Tax Cannabis Act of 2010. And, incidentally, this increase in revenue may save public employee jobs including teachers and police.

3. Legalizing pot will dampen gang control and sales of the drug and reduce crime associated with gangs. McNamara points out that: "Al Capone and his rivals made machine-gun battles a staple of 1920s city street life when they fought to control the illegal alcohol market. No one today shoots up the local neighborhood to compete in the beer market."

4. Proposition 19 will not lead to more DUIs and other crimes. Use of pot will be highly regulated and driving under the influence of a drug is illegal anyway. Further, police will be able to enforce these crimes more effectively if freed from having to make "petty busts" such as mere possession or under the influence (when not driving).

Chief McNamara makes several good points, but we will have to wait and see if the public agrees with his reasoning. The people will vote on the initiative this November 2, 2010. To read McNamara's full article click here.

Continue reading "San Jose Police Ok with Legalizing Pot" »

More than 2500 marijuana plants were seized and nine people arrested in coordinated Bay Area law enforcement raids including here in San Jose. It was a network that ran from San Jose, to Oakland and even up to the Napa Valley. Local law enforcement and the California Drug Enforcement Agency estimate that the "ring" had up to $10 million worth of marijuana. The months-long investigation ended up with 15 search warrants including a San Francisco address where police believe the "ring leader" lived. The California DEA also estimates that the operation had the capacity to produce up to 10 tons of pot annually, which was sold to customers in an intricate underground operation.

In an interesting sub-story most of the growers undertook to by-pass the utility meters and installed their own electrical circuits.

The largest stashes of pot were discovered in San Francisco and Militpas, 1,097 and 493 plants respectively. 359 plants were discovered from a home on the 2700 block of Rainfield Drive in San Jose. 15 pounds of processed pot were found in an Oakland residence where police arrested Diep Hoang Vu, 38, a suspected worker at the grow houses. Vu has an extensive criminal history that includes a 16-year prison sentence for a felony rape conviction. Also arrested were Quoc Bui Long, 44, of San Jose; and Tuan Chu, 28, a Vietnamese citizen, whose residence is unknown.

This investigation, arrests and soon to be prosecution comes about when the State of California is in a deep discussion about legalizing the commercial and recreational use of marijuana. Granted, this kind of operation would never be legal, but one wonders at the use of time and resources going after "pot rings" when it soon might be legal to smoke pot for fun! And, given that California is about to meet the precipice of debt, perhaps those resources might be better put elsewhere. Just a thought. Below is a video of a Harvard economist making the argument to legalize marijuana.

Continue reading "Bay Area Pot Scandal" »

I am a little late in getting to this, but there has been so much to do and write about. On June 8, Deputy District Attorney Jeff Rosen defeated incumbent Delores Carr for the coveted position of top D.A. This came with cheers and happy shouts from defense lawyers and even many prosecutors. Carr came into office vowing to rid it of corruption and manipulation. Unfortunately under Carr's tenure, things got far worse. Suppression of evidence, withholding key witness and downright lying had become all too prevalent in the office for the voters to tolerate.

To give one example, a deputy D.A. used false semen evidence to persuade a jury that the defendant was guilty of rape. In fact that was the "evidence" used by the police to coerce the defendant to confess. The DA latter used that "evidence" as authentic, which resulted in a conviction. No real semen was actually found.

In another example, the DA failed to disclose vital medical records that would have been mitigating for the defense. That DA might very well lose his license.

Carr even ordered all Deputies to boycott one certain judge because she tends to grant "too many" defense motions.

The office has been maelstrom of deceit and unfair practices. Some D.A.s refused court orders. Others ignored evidence. And all the time Carr stood by her people (the guilty ones I mean)

We hope in Jeff Rosen the office will truly be cleaned up and seek justice, not power.

Good Luck Jeff!

In a hair split 5-4 decision the Supreme Court shifted Miranda rules in favor of the police yesterday. Everyone these days is familiar with Miranda and what the police need to require from the suspect before they can question him. The very first warning typically given is "you have a right to remain silent..." Until yesterday, if a criminal suspect, upon hearing those words, said nothing, that could not be considered an effective waiver of his rights and the police could not question. The logic was simple: the burden rests on the government to show that a criminal suspect "knowingly and intelligently" waived his right. Seems simple enough, right?

Well, apparently not to the United States Supreme Court. According to the ruling a suspect must "unambiguously" invoke the right to remain silent. In other words the suspect has to say "yes, I am unambiguously invoking my right to remain silent." Simply remaining quiet (or silent) is not unambiguous, thus the police can begin questioning

This ruling stems from a criminal case involving a man named Van Thompkins. Thompkins was arrested after fatally shooting two men near a mall in Southfield, Michigan. There, when asked whether he wanted to remain silent, Thompkins merely stayed quiet and did not say anything. The police then questioned him for nearly three hours, while Thompkins said nothing. Well, that was until after three hours when finally he admitted the crime. The Appellate Division ruled that this was a violation of Thompkins constitutional rights, because he never waived the right to remain silent. In fact his silence would suggest that he was exercising that very right!

The U.S. Supreme Court overruled the lower court shifting the balance of power to the police and government and not the criminal suspect. Steven Shapiro, legal director of the ACLU, said that this case "demonstrates the power of custodial interrogation to wear down the defendant's willpower, which is what Miranda was designed to prevent."

In her dissent, Justice Sotomayor wrote that this new requirement on the suspect to unambiguously invoke his right to remain silent is counterintuitive because it requires him to speak! Once again the Supremes have gone too far.

Continue reading "Your Miranda Rights Just Got Smaller" »