San Jose Criminal Defense Lawyer Blog

For certain crimes a non-citizen, but legal resident, may be deported if the crime is an "aggravated felony" under 8 U.S.C. § 1227(a). In some cases the deportable defendant cannot even seek relief in the form of a formal hearing where he could otherwise present mitigating evidence and request non-removal. Possession of marijuana with the intent to distribute is, or at least was one of those automatic deportable offenses (see § 1101 (a)(43) (B): illicit trafficking of a controlled substance).

Despite the language of the federal Controlled Substances Act, the Supreme Court held that a conviction for a marijuana distribution offense is not an aggravated felony if the crime did not involve any remuneration (sales) and the amount of the marijuana was minimal. Thus, if a non-citizen is convicted of distributing marijuana, and not for sales and the amount was small, he cannot be automatically removed from the country. (The facts of the situation are not relevant, just the language of the statute of which the defendant was convicted.)

The case before the Supreme Court involved a legal resident who was arrested for possessing approximately 1.3 grams of marijuana. He was convicted in Georgia, under state law, for possession with intent to distribute. The statute did not distinguish sales and non-sales distribution. The Federal Government sought removal, because under the Federal Code, the crime is an aggravated felony, punishable up to five years in federal prison. (See 18 U.S.C. § 841(a)-(b).) A conviction under state law "constitutes a felony punishable under the [the federal Code] only if it proscribes conduct punishable as a felony under that federal law." Moncrieffe v. Holder (2013) No 11-702, quoting Lopez v. Gonzales, 549 U. S. 47, 60. A judge then ordered the defendant removed.

The court noted that federal law has two provisions regarding the distribution of marijuana: 1) § 841(b)(1), which calls for imprisonment up to five years ( which the government relied on) and 2) § 841(b)(4), which allows for a misdemeanor where there was no remuneration and the amount of marijuana minimal. The government argued that section 841(b)(1) was the "default" provision and that 841(b)(4) was merely a mitigating sentencing factor, not an element of the offense. The court rejected this argument and held that if a defendant is convicted of a non-sales distribution, automatic deportation cannot thereby result.

The court, however, found that because the Georgia law under which the defendant was convicted does not distinguish distribution for money or not for money, either federal law could apply, in which case the defendant had a right to a hearing.

Critics of this decision will argue that similarly situated people will be treated differently, depending on how specific state criminal laws are. In other words, if a state law (such as in Georgia) does not distinguish between sales and non-sales distribution of marijuana, a criminal defendant will get the benefit of a hearing and non-automatic removal, even if he was in fact selling. However, a similarly situated defendant in a state such as California, that has separate statutes for sales and non-sales distribution will be subject to automatic deportation, without a right to a hearing.

To read the Supreme Court opinion, click here.

Continue reading "Marijuana Possession With Intent to Distribute: Not Necessarily Deportable" »

Timothy Allbritton, a 49-year old man from Rohnert Park, California was sentenced by the Superior Court to eight years in the state penitentiary for kidnapping a twelve year old girl. The girl was going door to door at an apartment complex selling pine cones. When she reached the defendant's door, he grabbed her and forcibly pulled her inside his apartment unit. The girl was able to escape and ran home within minutes of being snatched and she did not report any injuries. To read the Mercury News article reporting this, click here.
California Penal Code § 207 defines kidnapping as follows: "Every person who forcibly, or by any other means of instilling fear, steals or takes or holds, detains, or arrests any person in this state and carries the person into another country, state or county, or into another part of the same county is guilty of kidnapping." Although, the defendant Allbritton only removed the girl a matter of feet (the distance from his front door, to the inside of the apartment) a kidnapping still occurred. It is the fact of "forcibly" removing or carrying away a person and not the distance that constitutes the crime of kidnapping. People v. Cluchey (1956) 142 Cal App 2d 563. The old common law definition of this crime did in fact state that the forcible removal or "carrying away" must have at least been across a county border or some substantial distance. Even today, the language of the statute seems to suggest some distance or travelling must occur to constitute a kidnapping. The law in fact however, does not require any movement of significant or considerable distance to meet the elements of kidnapping. In this case, crossing the threshold of an apartment unit was sufficient. Removal may not even be a necessary element of kidnapping where the act is to restrain a person through fear or intimidation. See People v. Rich (1960) 177 Cal App 2d 617, for more on this.

Kidnapping is, as one can imagine, a serious felony crime and as such is punished severely. The sentence for a violation of section 207 is a term in the state prison for three, five or eight years. Although Allbritton received eight years for his crime, this was not the maximum the court could have imposed. Penal Code § 208 punishes a person for kidnapping a minor under the age of 14 with five, eight or eleven years in the state prison. Even if the court decides to grant probation in these cases, it is still required to impose a 12-month jail term. If the court decides on an even lesser jail term, the trial judge must unequivocally state his reasons for doing so.(Penal Code § 208(c).) Clearly it was the intent of the state legislature to strictly punish any act of criminal kidnapping.

Contributing source: Mercury News article dated March 28, 2013, "Santa Rosa: Man Gets 8 Years..."

California Penal Code section 1203.4 allows for a defendant to obtain a record clearance (sometimes referred to as an "expungement") after he or she has suffered a criminal conviction and after the probationary period has terminated. Many, if not most crimes can be expunged at some point and it is highly recommended that once the criminal defendant is off probation he or she obtain one. To obtain a record clearance an application must be filled out and submitted to the Adult Probation Office with a check in the amount of $150.00. The applicant must detail the nature of the crime, date of the conviction and reasons for the request.

Although a record clearance is not a cure-all it is sometimes required by employers before they will consider employing a person for a job or position. Once a criminal conviction is cleared, it does not simply get wiped away from your record. In fact, the conviction will appear to reporting agencies conducting background checks, but the conviction will show as being dismissed. In some cases the reporting agency will not report that there was a conviction; however, they usually do report the conviction, but that it was later dismissed. Many employers only want to see that the conviction was dismissed at some point, which makes the expungement process advantageous to many former criminal defendants.

In Santa Clara County such applications for a record clearance can be done without a lawyer, but it will sometimes take much longer and you may not even appear before a judge to argue why you deserve the expungement. It is more difficult to obtain a record clearance for some crimes than for others. For instance, a person convicted of a felony may need a greater showing of good cause to successfully obtain the expungement, particularly if the felony is a serious one (and for alternative offenses, sometimes called "wobblers," the applicant should first request a reduction to a misdemeanor pursuant to Penal Code section 17). For DUIs judges have greater discretion to grant or deny expungements. These cases would require, not just the application for a record clearance, a but a well argued motion filed with the court. Often such a circumstance will even require oral argument before a judge.

In other circumstances there may be good cause to ask for an early termination of probation, which would allow you to get a record clearance earlier in time. Good cause could be great difficulty in finding employment because of the conviction, or military enlistment. You should consult with an attorney to see if you may be a good candidate for early termination of probation.

If you were convicted of a felony and did time in a state penitentiary, you cannot apply for a record clearance. In these cases the superior court loses jurisdiction and cannot entertain motions to expunge. If this is the situation you would need to apply for a certificate of rehabilitation and pardon. These are very difficult and complicated procedures that may or may not be successful. However, even a pardon does not erase the criminal conviction, as it too is a public record.

Continue reading "How Do I Get a Record Clearance in Santa Clara County?" »

Marvin Walker, one of the longest serving death-row inmates in California, lost his appeal today in front of the California based Ninth Circuit. In 1979, Walker committed two armed robberies in San Jose, California, that resulted in the death of four people, most of whom were shot in the head. At the time of these violent crimes Walker was a teenager; however he was tried as an adult because of the gravity of the offenses. A jury found him guilty of first degree murder, assault with the intent to commit murder, and two counts of robbery. He was sentenced to death in 1980.

At the time of trial the Santa Clara County Sheriff had the defendant Walker shackled and physically confined by a knee restraint. Members of the jury were aware of the restraint because it made Walker limp when walking to and from the witness stand and could be seen when Walker was seated. It also became apparent that Walker could not move from his chair at the defense table because he was shackled. At the time Walker's defense attorney did not object to the use of the restraint, which Walker continued to wear throughout the trial. The California Supreme Court rejected Walker's appeal, holding that because the defense lawyer did not object to the use of the knee restraint at the time of trial, it was effectively waived for any later appeal.

Walker appealed to the federal court arguing that his lawyer was ineffective at trial because he did not object to the restraint, which most likely tainted the jury's verdict. In other words seeing a man shackled by law enforcement would tend to suggest to a jury that the man was in fact dangerous and therefore guilty.

Every criminal defendant has the right to the assistance of counsel and that the assistance be "effective." Ineffective assistance of counsel can occur where the government so interferes with the lawyer's independent decisions as to a defense or how to conduct a hearing or where the lawyer himself is somehow deficient be failing to render adequate legal assistance. In making a determination of ineffective assistance of counsel the court must conclude that the lawyer's conduct "so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington (1984) 466 U.S. 668. In these situations the defendant must show real prejudiced occurred because of the attorney's omissions or errors.

The question posed to the court in Walker's case was whether his attorney's failure to object to the shackle resulted in a tainted jury verdict. In other words did the jury's notice of the confinement taint their judgment of the case and of Walker's guilt. The district court agreed with Walker and held that defense counsel was "constitutionally deficient" by failing to object to the knee restraint and that Walker was unquestionably prejudiced thereby.

A panel of the Ninth Circuit disagreed with the district court and found that the lawyer was not deficient and that Walker was not prejudiced by the jury-noticed confinement. The court gave five reasons for its decision: 1) although the shackle was noticed by members of the jury, the restraint was nevertheless "unobtrusive" when compared to other forms of shackling such as handcuffs and leg irons; 2) Walker's hands were free and unencumbered suggesting he was merely in custody and not a danger to others; 3) the judge indicated to the jury that the restraint was normal procedure; 4) evidence of guilt was strong and 5) the jury acquitted Walker of one count of assault.

This Santa Clara County criminal defense attorney takes issue with the court's analysis, which seems to ignore the obvious. First, although a knee restraint may be less "obtrusive" than other forms of restraint, it was obvious to the jury that Walker was being restrained. No other reasons were given to the jury to explain this, other than to suggest such restraint is routine. The obvious suggestion is that the defendant is a danger and cannot be trusted to remain seated peaceably. A defendant need not be wheeled into court on a dolly, strapped down with chains and covered by a plastic mask before it can be concluded that a prejudice is being done. A restraint to a defendant's movement that can be noticed by the jury is potentially prejudicial. (It should be noted that at times the jury did see Walker with handcuffs and a waist chain, furthering the prejudicial effect.)

Second, any evidence of Walker's guilt is irrelevant to the analysis before the court. The question is not whether Walker was guilty or innocent, but whether he was prejudiced by the noticeable shackling and restraint imposed on him by the government. This was a capital case where the death penalty was being sought by prosecutors. The slightest hint of prejudice against a defendant should overcome any judge's opinion of guilt or innocence.

Lastly, the court says that because the jury acquitted on one count of assault with the intent to commit murder, shows that the jury was not prejudiced and could come to a decision regarding guilt despite knowledge of the defendant's physical restraint. Really? The jury found for guilt (and for the death penalty) on every count save one (which does not carry the death penalty) and we are to assume no prejudice as a result? The court is reaching, to say the least, in an attempt to bolster its argument that the jury was not actually prejudiced.

It is unquestionable that there is a reasonable probability but for the shackling and restraint, the result of the proceeding may have been in fact different. In a capital case that should be sufficient to remand the case back to the trial court and have the case re-tried with a new jury. This should be particularly the case when the defendant is a minor.

Continue reading "San Jose Defendant's Criminal Conviction Upheld Despite Possible Taint in Jury Verdict" »

In this United States Supreme Court case, a criminal defendant appealed his conviction as being the result of pre-textual racial discrimination in the jury process. During jury selection (or voir dire) the prosecution challenged and struck two black panelists in a row from hearing the case. Defense counsel did not object, but his client did and raised the suspicion that the challenges were made by the prosecution (back to back) because the prospective jurors were black. The trial judge denied the objection and the defendant's claims. The judge's reaction was to thank the defendant for his observations, saying they have been noted, but "that is the best [the court] can do." Smith v. Cain 2013 US App. Lexis 2873. Smith appealed arguing that he raised a genuine issue as to the conduct of the prosecution in jury selection, and the judge's response was in gross error of state and federal law.

Every criminal defendant is constitutionally entitled to a jury trial and to have a jury selected among his or her peers in the community. Both the prosecution and defense counsel take part in choosing a jury from a panel of people picked at random from a cross-section of the community. This process is known as voir dire, where individuals are selected to hear the case. Each side may object to a particular juror either for legal cause or as a "peremptory challenge." General disqualification for cause may be for bias (for instance, a juror states that she cannot keep an open mind in a rape case or admits that she has already made a decision about the defendant's innocence or guilt.

The prosecution and defense also have preemptory challenges, which can be made to dismiss a potential juror. No reason may be given for the challenge and in most cases each side is entitled to ten (10) such challenges. (In life cases or when the death penalty is being sought, each side is entitled to twenty(20) peremptory challenges). However, dismissing a potential juror cannot be done for the purpose of excluding based on a recognizable or cognizable classification based on race, sex, religion or similar type of categorization. See the seminal cases of People v. Wheeler (1978) 22 Cal.3d 258 and Batson v. Kentucky (1986) 476 U.S. 79.

California has codified Batson in the Code of Civil Procedure section 231.3: "A party may not use a peremptory challenge to remove a prospective juror on the basis of an assumption that the prospective juror is biased merely because of his or her race, color, religion, sex, national origin, sexual orientation or similar grounds." In California this is known as the Batson-Wheeler rule. A Batson-Wheeler objection can be made by the party opposing the juror dismissal, but in so doing the party mush establish that: 1) the excluded juror is a member of a cognizable group under the Equal Protection Clause and; 2) that the exclusion is based on an inference that it is motivated by membership in that group. The burden then shifts to the party asking for the dismissal to present a race-neutral explanation for the challenge. Simply put the court must find that the challenge to a prospective juror was a result of purposeful discrimination.

In Smith v. Cain, the defendant Smith was charged with armed robbery and conspiracy to commit armed robbery. After his conviction he appealed to the federal courts (after exhausting his state court remedies) arguing that the conviction was tainted in part by racially motivated peremptory strikes by the District Attorney. The federal court proceeded with, against Smith's objections, an evidentiary hearing on this limited Batson issue because the Federal District court found that the state court had unreasonably misapplied established federal law. (This seems to contradict Cullen v. Pinholster (2011) 131 S. Ct. 1388, which restricts the federal court from having a new evidentiary hearing after the case has been adjudicated in state court. However, the 5th Circuit decided that when the Federal District Court finds that the state court misapplied "established federal law" the federal court may have a new evidentiary hearing on the issue before it, rather than just relying on the record from the state court. Smith at pg. 2.) In is unquestionable that the trial judge in this case misapplied federal law; he did not even apply any sort of law, saying that nothing was the best he could do.

In Smith, the court held that if the prosecution strikes a potential black juror with a particular characteristic, but accepted non-black jurors with that same characteristic, this is evidence of pretext racial discrimination. Additionally: "if the state asserts that it was concerned about a particular characteristic but did not engage in meaningful voir dire examination on that subject, then the state's failure to question the juror on that topic is some evidence that the asserted reason was a pretext for discrimination. Lastly, the court must consider only the state's asserted reasons for striking the black jurors and compare those reasons with its treatment of the nonblack jurors." Smith, quoting Fields v. Thaler (2009) 588 F.3d 270, 274.

Here, the court found no pre-textual racial discrimination because when questioned the prosecutor had explained the challenges in a race-neutral way; namely that the two challenged jurors were confused about the legal theories of the case and had prior relationships with law enforcement officers. At the federal evidentiary hearing the prosecutor claimed that both potential jurors had been sitting in court all day listening to the voir dire and yet both seemed confused about the issues of the case and inattentive. (Smith had argued that the prosecution's questioning of the black panelists was longer and more extensive than their white counterparts.)

The court determined that based on both the record of the trial court and the federal evidentiary hearing, there were no disparities between the treatment of the white panelists from the black, that there was no purposeful discrimination and that Smith failed to specify what other panelists were not questioned or struck in a similar manner as the two black jurors.

However, this criminal lawyer has one issue ignored by the Supreme Court. When the prosecution challenged the black panelists, on the record defense counsel said "That doesn't surprise me." In immediate response the prosecutor said "I wouldn't think." To me that sounds like a tacit admission that the challenges were made on a racial basis. Of course, challenging the black panelists back-to-back is rather suspicious too.

Source: Smith v. Cain 2013 US App. Lexis 2873

San Mateo County District Attorney Steve Wagstaffe had requested that a death row inmate be executed by lethal injection, despite federal and other state courts seven year hold on the death penalty. Robert Fairbank Jr. was convicted of murder and sentenced to death in 1985. Although he exhausted all appeals in his matter he still has not been executed because of a freeze on the death penalty by the federal court, questioning California's three-drug lethal injection process. Prosecutors claim frustration with Governor Brown for not taking pro-active steps in re-introducing lethal injection by switching to a less controversial form of injection. Wagstaffe, along with Los Angeles District Attorney Steve Cooley, argue that Superior Court judges can order the California prisons to execute death row inmates on a case by case analysis.

However, Superior Court Judge Barbara Mallach recently denied Wagstaffe's request, finding that Superior Court judges do not have the authority to overrule the standing orders already in place. In other words the freeze on executions will remain until the State can address the concerns that have been expressed by the current three-step procedure.

In 2006 a federal court put a halt to executions in California alleging that the three-drug process may be a violation of the Constitution's prohibition on cruel and unusual punishment. In 2009 new protocols were adopted by the California Department of Corrections, but were rejected by Marin County Superior Court Judge Lynn O'Malley Taylor. Her opinion reflected San Jose federal court Judge Jeremy Fogel's finding that the State's execution procedures were constitutionally flawed.

At issue is the use of pancuronium bromide, a paralytic agent. Some experts have claimed that the drug (one of three used in the execution process) does not always properly anesthetized the inmate, who may be fully conscious and feel extreme pain, but unable to communicate or otherwise move. Other experts have expressed a contrary opinion on the drug.

There are currently 720 death row inmates in California awaiting execution. Proposition 34, the ballot initiative to repeal the death penalty in California failed this November 6th. However, executions are not yet set to resume anytime in the near future.

Source: Mercury News Article by Howard Mintz, dated November 19, 2012

A Bay Area minor has been convicted and now sentenced to seven years and eight months for the reckless driving that lead to the death of a man and his daughter. David Rosen, not yet 18 years old, plead guilty to vehicular manslaughter with gross negligence, along with other driving related crimes, the Contra Costa Times reported. Rosen, tried as a minor, is said to have driven his parent's vehicle in excess of 75 miles per hour on a city street, when he lost control, hit the victims and slammed into a brick wall. He was also charged with felony hit and run.

As previously addressed in this SJ Criminal Law Blog, gross vehicular manslaughter really means that the defendant drove in such a reckless manner, violating some rule of the road that created a high risk of death or bodily injury. In such cases the People must prove that not only was the driving reckless, but some infraction or misdemeanor was committed during the event, such as speeding or illegal lane changes.

Also, the standard is not ordinary carelessness; rather the conduct must rise to the level that a reasonable person would have known that such driving would put other people at risk for great bodily injury or death. Otherwise stated, the driver acted in such a way that is so utterly different than an ordinary person, in a similar circumstance that his act amounts to a total disregard for human life.

In most vehicular manslaughter cases, the driver is intoxicated at time. In that case the District Attorney must prove that the driver was driving under the influence of alcohol, drug or combination of both and then committed some driving infraction or misdemeanor and that the negligent conduct caused the death of another person. However, the DUI itself cannot be that "predicate act." There must still be some other violation of law, such as speeding or other violation of the rules of the road.

Here, Rosen was not charged with a driving under the influence. Rosen was charged with speeding and reckless driving that directly caused the death of two people. The Mercury News reports him as a troubled youth with a history of recklessness.

Although sentenced to more than seven years, because Rosen was charged as a minor he will be released when he turns 21 years old. He still faces a hearing on restitution, which could be more than substantial.

Source: Contra Costa Times article by David DeBolt, "Teen Given Maximum Sentence..." dated October 22, 2012.

Just one year ago the State of California enacted AB109, or as codified Penal Code section 1170(h), which allows specified non-violent and non-sex offenders to serve their prison term in local county jails including San Jose's Main Jail or the Elmwood facility in Milpitas. The purpose of realignment" was to reduce the state prison populations by sending low-level offenders to the local county jails and or probation. According to Mercury News online the prison population has dropped by more than 26,000 inmates and a reduction by 39% of new prison admissions. This has of course led to overcrowding in local jails, many of which are ill-equipped to house inmates for long periods of time.

Specifically, California Penal Code section 1170(h) carves out groups of felonies that would have previously sent a defendant to state prison, but must now be sent to local county jails. This includes:

1. Crimes where a penal statute does not specify a term of punishment. In such circumstances, the crime is punished by 16 months, two, or three years in county jail or


2. Crimes where the statute now specifically requires punishment in the county jail, either as a straight felony commitment or as an alternative sentence as a wobbler. The length of the term is not limited to 16 months, two, or three years, but will be whatever triad or punishment is specified by the statute.

However, certain serious or violent crimes are specifically excluded and the sentence for such crimes is still state prison:

A) Where the defendant has a prior or current serious or violent felony conviction under section 1192.7(c) or 667.5(c);

B) Where the defendant is required to register as a sex offender under section 290; or

C) Where the defendant is convicted of a felony with an enhancement for aggravated theft under section 186.11.

Additionally, there are 70 crimes that are specifically listed that exclude county jail from being ordered by a court. Included in this list are felony domestic violence convictions, criminal street gang activity, assault with a deadly weapon likely to inflict great bodily injury, pimping/ pandering, criminal threats and felony elder abuse. For the complete list please click here.

Two questions that a criminal defense lawyer often gets asked are 1) whether there are any time limits that bar a defendant from being sentenced under section 1170(h) and 2) whether doing time in county jail is still a "prison-prior."

As to the first question, there is nothing under 1170(h) that limits the length of a county jail commitment. If the crime qualifies under the code, the defendant will be sentenced to county jail, irrespective of the time imposed.

As to the second question, yes, such a commitment is still a "prison-prior" and may used as such for sentencing enhancement purposes in any later criminal proceedings. However, upon release from jail the defendant is not placed on parole supervision as would otherwise have been the case if sent to state prison.

Source: Mercury News Article by Angela Woodall, dated October 1, 2012.

Private investigator and disgraced former police officer Christopher Butler has been sentenced to eight years in a federal penitentiary for his lead role in what has become known as Contra Costa's Dirty DUI Scandal. Among the charges were seven counts of various drug dealing including possession for sales and several counts of orchestrating a conspiracy to have men arrested and convicted of driving under the influence.

In his role as a private investigator for three women pursuing bitter divorces and child-custody battles with their husbands, Butler hired undercover employees to go on a dates with the former husbands. The employees were instructed to "entice the [husband] to drink alcohol until he was intoxicated, and have a police officer waiting outside the bar to stop and arrest the [husband] for drinking under the influence." All of this was to aimed at effecting the outcomes of the divorce and child-custody fights.

In one case, David Dutcher, a Bay Area resident was arrested and convicted of driving under the influence back in 2008. He had been suspicious about his DUI and believed that he may have been set-up. His suspicions involved a conspiracy between his former wife, a too good to be true dinner-date and a the now disgraced Christopher Butler and former East Bay police officer, Stephen Tanabe. These suspicions have now been confirmed by Butler's criminal conviction. For more see this San Jose criminal defense blog, dated July 31, 2012.

In another case the indictment alleged that one of the framed men had attended a bar and was surrounded by women (again, seemingly too good to be true) who showed interest in him. In fact these women were employed by Butler, one of whom encouraged the man to drink, get drunk, to get into his car and drive off. A Butler accomplice, the active East Bay police officer Tanabe, then pulled the man over on suspicion of driving while intoxicated. Contra Costa County dropped the criminal charge of driving under the influence after determining that he was the victim in an ongoing conspiracy between Butler and active law enforcement.

The officer who made the arrests has also been convicted of similar charges. As previously noted both men had been previously indicted and now convicted on other charges of possession for sales of methamphetamine and marijuana and for operating a brothel disguised as a masseuse business.

Other officers who were charged in the conspiracy are Norman Wielsh, a commander in the Contra Costa County Drug Enforcement Team, and San Ramon police officer Louis Lombardi.

According CBS News San Francisco, Wielsh further implicated Butler in another scandal involving the robbery of prostitutes. The allegation is that Wielsh and Butler would respond to solicitation ads on craigslist and myredbook. Butler would show up to the prostitute's hotel room pretending to be the "John," while Wielsh would burst in after, flashing his police badge. After searching the prostitute's belongings the two men would make off with money and valuables. For more, see the CBS article by clicking here.

Butler did cooperate with investigators when the conspiracies came to light; however, the federal court sentenced him to eight years in federal prison.

The three year old son of a veteran San Jose police officer was found dead this past July from a gunshot wound to the head. It is believed that the young child discovered his father's .45 caliber handgun in a nightstand drawer and accidentally pulled the trigger. The officer had previously believed that the boy would not be home when he placed his gun in the drawer instead of a lockbox. After falling asleep the boy returned home with his mother along with several other children. The officer woke up from his nap and went downstairs, forgetting to secure his gun with either a cable lock or by placing it in his lockbox. The boy found the gun sometime later.

The Santa Clara County District Attorney investigated the matter, deciding whether to charge the San Jose cop with criminal conduct including involuntary or negligent homicide. Other child related criminal offenses such as child endangerment and gun charges were also considered. However, the District Attorney decided not to file charges against the police officer concluding that although tragic no crime had taken place.

To prove involuntary manslaughter prosecutors must convince a jury that the defendant: 1) committed a crime that posed a high risk of death or great bodily injury because of the way in which it was committed or that a lawful act was committed with criminal negligence and 2) The defendant's act unlawfully caused the death of another person.

Often criminal negligence means acting in a reckless way that creates a high risk of death or bodily injury. See People v. Gomez (1943) 59 Cal. App.2d 417. There is a difference between voluntary and involuntary manslaughter, however. Voluntary manslaughter is an unlawful killing of another person caused by a willful act done with full knowledge and awareness that the person is endangering the life of another and done with conscious disregard of human life. Involuntary manslaughter is an unlawful killing resulting from a willful act but committed without intent to kill and without conscious disregard for human life and safety. For more see People v. Lara (1996) 44 Cal.App.4th 102.

The Mercury News quotes prosecutors as saying that the officer's conduct "allowed a tragedy to occur, [but] does not mean he disregarded human life or was indifferent to the consequences of his conduct." To see the Mercury News article click here.

The officer admitted to police that he did not lock his gun away and said that when he woke up from his nap he forgot all about the gun in the nightstand. Other factors included that he believed his children would not be coming home and his children were previously told never to go into the master bedroom. Criminal prosecutors do not believe the elements of an unlawful killing can be proven and the matter has been discharged. As a crime defense attorney in San Jose, I agree with that assessment, that although tragic and irresponsible, no crime took place.

Source: Mercury News Article "Prosecutors Won't Charge San Jose Police Officer..." dated September 26, 2012 by Tracy Kaplan.

Continue reading "San Jose Police Officer Not Charged with Negligent Homicide in Death of Child" »

Concourse Business Center, the landlord of property that has been used as a marijuana dispensary, is asking the Federal Northern District of California to stop all activities of Harborside Health Center, including the distribution of medical marijuana. The U.S. Attorney's Office has already filed civil forfeiture proceedings against the San Jose marijuana dispensary.

Medical marijuana dispensaries and cooperatives are legal in California. The Second Appellate Division of California has ruled that medical marijuana dispensaries are legal under state law and are not subject to complete bans by city municipalities. In response to Los Angeles banning dispensaries the court held that: "[T]he repeated use of the term 'dispensary' throughout [Health and Safety Code section 11362.768] and the reference in subdivision (e) to a 'storefront or mobile retail outlet' make it abundantly clear that the medical marijuana collectives authorized by section 11362.775 are permitted by state law to perform a dispensary function." Please see County of Los Angeles v. Alternative Medicinal Cannabis Collective. Also see the controversial decision from the same district People v. Colvin (2012) 203 Cal.App.4th 1029, this blog dated May 14, 2012.

However, federal law completely bans marijuana use, sale and possession, which preempts state law. In the last few years the federal government has conducted raids and shutdown operations from San Jose to Los Angeles. In the Harborside case the dispensary insists that its landlord does not have standing to enjoin its drug dispensing activities because it is legal under California law and the lease between the two parties spelled out what those activities would be. Further it argues that the landlord will not suffer an injury if the government's forfeiture action proceeds.

However, it is likely that Concourse does have standing if its aim is to prevent criminal activity from taking place on its property. Concourse is really trying to minimize the risk to its property in a forfeiture proceeding, where the courts could deprive the landlord of that property. Enjoining Harborside from continued federally illegal conduct is reasonably related to the forfeiture action instituted by the government. Although Harborside is violating no criminal law under California or any law under the municipal codes of San Jose, its activities constitute a federal offense. The landlord facing a loss of its property if the federal forfeiture action is successful.

Nevertheless, Concourse should have been on notice of the marijuana activities as the lease specifically stated what business Harborside was to engage in. Concourse did take a risk in leasing property to an organization that it knew or should have known was contrary to federal law. No doubt Harborside will be making this argument against the landlord's request for a restraining order prohibiting the distribution and sale of medical marijuana on its San Jose property.

Source: Courthouse News Service article "Weed Wars Star Faces Eviction Threat," by Chris Marshall, dated September 19, 2012.

Continue reading "Feds Team-Up With Landlord to Shutdown San Jose Marijuana Dispensary" »

This crime defense blog has been following the criminal trial of William Lynch who is accused of committing an assault and battery on a former priest. That priest, Jerry Lindner, is named in a civil lawsuit alleging that he molested Lynch and his younger brother in 1975.

For weeks Lynch's attorneys have been silent as to what the defendant's defense at trial would be. Some people guessed that Lynch would assert a self-defense theory among other arguments. After Lynch testified on Friday, June 29, 2012, it appears that the Lynch is in fact pursuing an argument of self-defense; or at least some version of it.
Self-defense is an affirmative defense, which must be raised by the defendant. To prove a self-defense theory the jury must believe that the defendant reasonably believed that he was in imminent danger of suffering bodily injury and that he believed that immediate force was necessary to defend against such injury and lastly that the defendant did indeed only use that amount of force needed to defend against the danger. (See People v. Humphrey (1996) 13 Cal.4th 1073, for more information on the elements of self-defense. Also see California Criminal Jury Instruction No. 3470.)

The question for Lynch is how does a self-defense theory apply, when the injury done to the defendant was in the past more than 30 years ago? According to the Bradenton News reporting on Lynch's testimony, just seeing Jerry Lindner put the defendant into a child-like mindset, once again fearful of the priest's proclivity to commit sexual assault. Lynch testified that just by seeing Lindner, the first time in many years, made him feel threatened like when he was a child. Thus being provoked he punched the priest twice. Lynch also testified that before the assault took place Lindner "leered" at him with the "same look in his eyes" as when he molested Lynch 30 years prior. (For more on Lynch's testimony see theBradenton News article by clicking here.)

Thus the defense seems to be that because of the grave emotional scarring inflicted on Lynch by Lindner, just the sight of him provoked Lynch into believing that Lindner was an imminent danger to him, like he was all those years ago. Thus Lynch's acts were unplanned and provoked by the fear of Lindner he has carried with him all his adult life.

The prosecution has seemingly dismissed the idea that Lynch was provoked by fear; rather the prosecution's theory is that Lynch came to the priest's retirement home for the purpose of committing a battery on him. Lynch testified, however, that he came to the home to confront Lindner and have him sign a confession.

It is the opinion of this San Jose criminal defense attorney blog that Lynch may very well have planted seeds of doubt in the minds of the jurors combined with real sympathy for a man who suffered at the hands of sexual predator who is now called the victim.

It should be said that Lindner first denied any acts of molestation, and before he could be cross-examined by the defense took the Fifth. The trial judge quashed the defense's subpoena to bring the priest back into the court room, but did strike all of the man's testimony from the record, including his denials.

Source: Bradenton News Article "Calif Man Accused In Priest Assault Describes Fear," dated June 29, 2012, by Paul Elias

Criminal defendant Reynaldo Maldonado is accused of murder and other violent crimes back in 2001. Specifically, Maldonado is alleged to have murdered San Mateo County high school freshman Quetzcoatl Alba in May of 2001. It took more than eight years for authorities to catch up with Maldonado and co-defendant Erick Morales.

However, trial in this matter has been delayed for two years as the California Courts decide on a legal issue regarding Maldonado's mental health. In 2009 the criminal defense team informed the Superior Court that it would be defending on the grounds of Maldonado's mental health, specifically neuro-cognitive deficits suffered by defendant. The law unquestioningly allows prosecutors the ability to have a defendant submit to their own experts for a mental health review and psychological examination when a mental health defense is asserted. However, when the San Mateo County District Attorney demanded access to Maldonado's own mental health records and exams performed by his own doctors, defense lawyers objected. Their objections landed the parties before the California Supreme Court.

Maldonado's attorneys argued that allowing the prosecution access to his mental health examinations would violate his Fifth Amendment guarantees against self-incrimination. In other words, statements made to doctors during mental examinations should remain confidential because of a threat that they could be used against the defendant at trial.

The California Supreme Court disagreed with the defense and held that the Fifth Amendment right against self-incrimination does not preclude giving the prosecution "full access" to the results of mental examinations experts conducted, "for the purpose of obtaining evidence to rebut a mental-state defense that the defendant has indicated that he or she intends to present on the issue of guilt." (See Maldonado v. Superior Court (2012) 53 Cal. 4th 1112.)

More to point the court said that a criminal defendant waives his constitutional guarantee against self-incrimination when he puts his mental state on issue, particularly as a defense. The court did limit this somewhat by holding that such a defendant waives the Fifth Amendment right only to the extent necessary to "permit a proper examination of that condition." (See People v. Maldonado at pp 1116-1117.)

The court used California's reciprocal discovery rules under Penal Code section 1054 to justify its position. However, the decision is broad in what it allows the prosecution: access to a criminal defendant's communications with his or her doctors. The prosecution may now have full access to unredacted medical reports, specifically mental health records, including any and all statements made by the defendant to his doctor. The court said that the Fifth Amendment only applies to direct or derivative use of compelled disclosures used to find guilt.

I am a criminal defense lawyer who has concerns with the ruling as it may be used to exploit statements given from patient to doctor and could have a chilling effect on the doctor-patient relationship. This ruling mandates that the prosecution have full access to mental health exams well in advance to trial. This puts a criminal defendant at grave risk that that information will be used against the defendant in finding him guilty. A good procedure would to have an in-camera review of the documents sought by the prosecution. After the trial judge fully inspects the materials and resolves issues of privilege and self-incrimination, he may then have the documents redacted and disclose only the relevant mental health issues to the prosecution. Allowing prosecutors carte blanche to such records would no doubt lead to prosecutorial misconduct and a clear disadvantage to the criminal defendant. When in doubt the court must always err in light most favorable to the defendant.

Maldonado's trial is set for March 2013; however defense attorneys indicate that they will appeal to the United States Supreme Court.

Source: San Mateo County Times Article by Josh Melvin, "March Trial Date for 11-year -old Daly City Murder Case," dated 6/28/2010; Maldonado v. Superior Court (2012) 53 Cal. 4th 1112.

The Fourth Amendment to the United States Constitution is one of the most basic and fundamental constitutional guarantees. The Fourth Amendment specifically says: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Criminal Defense Attorneys routinely point to the Fourth Amendment protections when police make warrant-less searches of people, vehicles and homes. To conduct a search law enforcement is required to obtain a warrant based on probable cause that a crime has been or is being committed. There are some exceptions to the warrant requirement, such as exigent circumstances, destruction of evidence or threats to the community. However, searches of private homes are presumptively invalid and the prosecution has to prove that one of the exceptions apply. The seminal case on this is Wong Sun v. United States (1963) 371 U.S. 471.

In a case just handed down by the California based Ninth Circuit, the Fourth Amendment guarantee against warrant-less searches was upheld, where federal agents entered a private residence, without a warrant, to search for an illegal alien.

In April of 2010, border patrol agents watched a man illegally enter the United States from Mexico, by climbing over a border fence. The agents continued to watch and follow the man as he took a taxi to a home in Calexico, California. The man walked through the home's carport and knocked on a side door of the home. The resident, Heriberto Perea-Rey (the defendant) answered and let the man in. The agents observed this from across the street. They approached the home and entered the carport and knocked on the door. The defendant answered and the agents ordered everyone to exit the residence. Six men exited the building and a seventh was discovered upon a search of the house.

The defendant was arrested and charged with harboring illegal aliens in violation of 8 U.S.C § 1324. At a pre-trial motion the defendant's attorney filed a motion to suppress based on a warrant-less search. Any evidence discovered during an illegal search must be excluded by the court. The trial court denied the motion finding that the carport was in plain view of the officers, and that there was no reasonable expectation of privacy because a carport in within the "curtilage" of the property. (The court granted the motion.)

The Ninth Circuit disagreed and held that the defendant did in fact have a reasonable expectation of privacy and the border patrol should have obtained a warrant. The court used a four point test in making the determination: 1) the proximity of the area to the home; 2) whether the area is part of an enclosure; 3) the nature and use of the area; 4) the steps taken by the defendant to keep the area private. See United States v. Dunn 480 U.S. 294.

The court held that the carport met the requirements of the four prong test: The carport was directly adjacent to the home, was enclosed by walls and a roof and an iron fence, was used for personal storage, including a classic 1970 GMC pick-up truck and was protected in part from public observation. It is important to note that the court indicates that even if officers can see into the property, this does not negate the warrant requirement, if that area is still reasonably expected to be private.

I am a criminal defense lawyer and I applaud this decision, which is keeping with the language and the spirit of the Constitution.

California law allows for the medical use of marijuana for people "seriously ill," who are deemed appropriate for its medical use and have the recommendation of a physician. This San Jose criminal defense attorney has written extensively on the subject on this blog. However, federal law stands strictly in opposition to California's Compassionate Use, which has created an ongoing battle between the two jurisdictions. The Feds have taken a stern position on marijuana, closing down cannabis co-ops and collectives and arresting people who would otherwise be protected under California law. (When there is a conflict, federal law trumps state law). San Jose and Morgan Hill have seen such closures and arrests in the last few years.

Here in California, four disabled people qualified for and obtained valid permission under California law to use medical marijuana (see Cal. Health & Safety Code §11362.5). The patients purchased marijuana from local collectives in their respective cities of Costa Mesa and Lake Forest. In 2005 both cities adopted policies to exclude cannabis clubs, co-ops and collectives within city-limits, as they were deemed a "nuisance." These clubs continued to operate despite the local ordinances banning them and were eventually raided by local police and some members detained and arrested.

With little recourse to obtain medical marijuana, the patients brought an action in federal district court, alleging a violation of Title II of the American with Disabilities Act or ADA. (See 42 U.S.C. § 12132). Specifically, the complaint alleged that the patients/plaintiffs qualified as disabled under the ADA and that they were wrongfully discriminated against by the cities' ban on medical marijuana. Title II of the ADA says in part that public entities "must not intentionally or on a disparate impact basis discriminate against the disabled individual's meaningful access to public services." The complaint further requested an order requiring the cities to "cease and desist any further action to remove existing marijuana collectives organized under the laws of California."

The district court denied the patients/ plaintiffs request for injunctive relief on the basis that federal law does not authorize medical marijuana, and thus cannot protect against discrimination on the basis of marijuana use. The court further found that the term "individual with a disability" does not encompass a person illegally using a drug under federal law. (Some otherwise illegal drugs may be used under the ADA where specified by law. This is sometimes called the "supervised use law," which does not include cannabis.)

The Ninth Circuit Court of Appeals, based in San Francisco, affirmed the district court's decision. The court found that accepting the patients/ plaintiffs' position would be "a substantial departure from [] accepted federal policy by extending federal protections to a federally prohibited, but state-authorized , medical use of marijuana. That would be extraordinary departure from policy and one that we would have expected Congress to take explicitly." Thus the court rejected the plaintiffs' argument that marijuana implicitly comes under the "supervised use law."

In the end the Ninth Circuit concluded, that although the patients/ plaintiffs were "seriously ill" and unquestioningly come under California's Medical Marijuana provisions, "Congress has made clear," that the Americans with Disability Act defines illegal drugs and drug use under federal law, and federal law makes no exceptions for marijuana. The real short of it is, the ADA does not protect medical marijuana use or possession.

This decision comes on the heels of a series of cases rejecting medical marijuana under any federal scheme. The federal courts have ruled that non-commercial cultivation of marijuana does come within the purview of the interstate commerce clause and have rejected medical necessity as a defense to the use of medical marijuana. To see the text of the Ninth Circuit opinion, click here.

Source: James v. City of Costa Mesa (2012) 2012 U.S. App. Lexis 10168. Also see Mercury News article "San Francisco: Court rejects Disabled Citizen's Bid to Obtain Medical Marijuana," Bay Area News Service, May 21, 2012.

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