San Jose Criminal Defense Lawyer Blog

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.

On April 12, 2009, suspected gang member Daniel Pena was involved in a reported shootout with a rival gang. Pena and his friend Alvara Galindo, both alleged Surenos, are said to have started a fight at a bbq attended by members of the Norteno gang. In a confusing set of events, guns were drawn and one man ended up perishing in the fight. Galindo was shot and killed by one of the Nortenos who was subsequently arrested. However, it is Daniel Pena being charged with first degree murder.

The Mercury News is reporting that the Santa Clara County District Attorney has decided to use a relatively unknown theory (except to law students and criminal attorneys) called provocative act murder (PAM). PAM can be alleged "when the perpetrator of a crime, with a conscious disregard for life, intentionally commits an act that is likely to result in death and the crime victim kills in reasonable response to that act, the perpetrator is guilty of murder ." (People v. Briscoe, 92 Cal. App. 4th 568) Basically, the defendant must have committed an act that provokes a third party to act in a lethal manner.

Usually this doctrine is used when the defendant provokes a police officer who in response accidently kills an innocent bystander or accomplice. Here, the D.A. is arguing that because Pena started the fight, an act that he should have known would have elicited a deadly response, he is responsible for murder.

This theory is similar to a more widely used doctrine of Felony Murder. That rule holds that if there is an unintentional homicide during the commission of an inherently dangerous felony, the suspect of that underlying felony can be charged with murder.However, the different jurisdictions vary as to whether felony murder applies when a co-conspirator is killed. The San Jose D.A. is therefore avoiding felony murder by employing PAM to get to a murder a charge. Both doctrines seek to charge a defendant with first degree murder when he was not the one who actually pulled the trigger

Pena's defense might be that he attempted to retreat thus curing the elements of PAM. Earlier this year Pena's defense attorney tried to do just that. He contended that Pena did intend to start a fight, but when he saw women present he decided to call it off. A judge ruled that the retreat was too late and that Pena had started a chain reaction that directly led to Galindo's death.

Pena is facing 25 years to life in the state penitentiary.

Continue reading "San Jose Prosecutors Get Provocative" »

Effective today, San Jose will no longer have a specialized police force dedicated to fighting violent crime and street gang activity. The announcement comes on the heels of city-wide budget cuts and downsizing. San Jose Police Department's Violent Crime Enforcement Team (VCET) seems to be the latest department to be axed. The Police indicated to reporters that the Team made approximately 1,000 gang arrests annually.

George Beattie, San Jose Police Officers' Association President, told reporters that the "elimination of this unit from the San Jose Police Department will have a devastating impact which cannot be estimated."

The 18 officers of the Violent Crime Enforcement Team will be transferred over to the Metro Unit. Beattie stressed that this will make the city more vulnerable to the estimated 50 gangs and 9,000 validated gang members in San Jose. (Of course, readers of this blog know my take on this: if you happen to live on the wrong side of town, well, that makes you a gang member to the police).

Mayor Chuck Reed's spokesperson, Michelle McGurk issued a press release on Sunday saying the VCET was not being eliminated and called it a "staffing change."

Continue reading "San Jose to Eliminate Its Gang Unit" »

Around 5:00 p.m. on September 11, Gilroy Police arrested four adults and four juveniles on gang related charges. Girloy's Anti-Crime Team arrested Robert Navarro, 21, at 9033 Church St. on a $100,000 warrant for assault with a deadly weapon and on an additional warrant for being under the influence. It is alleged that Navarro physically attacked a man near Safeway on the 900 block of First Street. Witnesses say the victim fell to the ground in front of his wife and two-year old daughter. No word if the injuries are fatal. Police arrested three more men, allegedly from the same local gang: Dominic Casillas, Louie Vallez and Alexander Amezcua. Their charges range from oral copulation of a minor, domestic violence and false imprisonment. Details are not forthcoming.

Police also arrested four juveniles for various crimes, including probation violations, possession of a machete, escaping from a juvenile detention facility and possession of a concealed weapon.

It is alleged that all eight men and boys are members of the Norteno street gang and the Gilroy police say they have put a dent in local criminal gang activity. However, the police have not indicated whether these men are validated gang members. Being Latino and committing a crime does not equal membership in a criminal street gang. Of course, here in San Jose, just living on one side of town automatically makes one a member of a gang. And, wearing a badge automatically makes one a "gang expert." Or so it too often seems.

Continue reading "Gilroy Cracks Down On Street Gangs" »

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" »

San Jose Police have released the identities of three victims of homicide over this past weekend. Jasmine Nicole Costa, only 28 years old, was found shot to death at her home in San Jose. Police have picked up a suspect, reported to be 25 years old, who is to be arraigned on murder charges this week. Ms. Costa was the 16th homicide in San Jose for the year.

The city's 17th and 18th homicide victims were identified as two San Jose residents: Alex J. Rodriguez, 27, and Phillip C. Ayala, 26. The two were shot down by a single gunman at 10:42 p.m. Saturday in a parking lot in the 300 block of San Antonio Court. It is alleged that the victims were involved in gang conflict when they were killed. Another woman was injured but her wounds are not fatal.

San Jose, recently called one of the safest major cities in the country has seen an uptick in murder these past few months. This weekend makes the number for 2010 a total of 19 murders. There were a total of 28 murders last year.

These killings come on the heels of the controversial killing of a San Jose man by police. San Jose Police were dispatched on calls of a man wielding a knife. On scene, without attempting to subdue the man (i.e. with tasers) the police shot the man to death. He was later identified as Brian Strand Casey, known for a mild disposition. Two other people have been slain by police this year in similar circumstances.

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!

Last summer members of a gang crashed a birthday party of a 16-year old girl. In the melee they stabbed an 18-year man to death. They were apprehended because of new cross-city protocols that have made it much easier for police in different cities to cooperate and apprehend criminal suspects. Recently, the South Bay has seen the creation of the regional gang task force that has freed up the flow of information between different agencies.

The Mercury reports that six South Bay cities have banded together and have created the South Bay Gang Alliance. There is a total of 50 government agencies involved that reach as far as King City. The aim of this new cooperation is the unfettered movement of gang members crossing city and county borders to recruit new members. Additionally, gang related crime is spreading beyond San Jose and into residential and bedroom communities.

Further problems for the police are that gang members have contacts in other cities and even counties. Norteno members in San Jose are now sharing information and resources with their counterparts in Salinas. It is the same with the Surenos and even the smaller Pilipino and Vietnamese gangs. Now law enforcement is gearing-up to be as resourceful as many gang outfits have become. This requires cross border intelligence gathering and sting operations. They are now using "gang experts" and even former gang members to assist in investigations and analysis. The role of this new cooperation is prevention, intervention and suppression

But as the police step up their activities against gangs, other people get caught in the crosshairs. The video below is just one case, where a young man, who should have received one to three years (even less in my opinion) is now in state prison for life.

Continue reading "Santa Clara County Steps up on Gangs" »