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.

San Jose officials are reporting that the annual AVOID the 13 DUI crackdown netted less DUI arrests this Christmas and New Year's season. Santa Clara County made just under 500 arrests of people on suspicion of driving under the influence, down from 557 last year and 632 in 2009. The Sheriff's Office believes that high DUI enforcement visibility acted as a deterrent, which included highly advertised sobriety and license checkpoints.

As of December 28, 2011, Santa Cruz reported a total of 30 DUI arrests and Morgan Hill totaled 18. All county local law enforcement agencies have noted a decrease in arrests this past holiday season and there were no deaths related to driving under the influence.

AVOID is an anti-DUI law enforcement program funded by grants from the Office of Traffic Safety. The program provides the framework to pull different law enforcement agencies from all participating counties to "cluster" together and clamp down on drunk driving. Santa Clara County was the first to participate in the DUI program in 1974. Forty one counties now participate in AVOID, which includes 540 law enforcement agencies.

Source: Morgan Hill Times

Vincent Cardinalli, owner and operator of a San Jose area towing company, is currently in police custody on dozens of charges of fraud in what the District Attorney is calling a "tow and sue scam," the Gilroy Dispatch reports. It is alleged that Cardinalli and members of his family would fraudlently tow away vehicles, store them and then eventually sell the cars. The family would then sue the owner for storage and lien sale fees in small claims court. The family is being charged with conspiracy, fraud, forgery among dozens of other felonies.

The fact that is raising eyebrows is a default judgment awarded to Cardinalli in the amount of $4.5 million while he sits in custody awaiting trial. About three years ago Cardinalli offered his services as an expert in small claims court, to a local store owner named Maria. One of Maria's customer provided a bounced check and Cardinalli offered to assist making a claim against that customer in court. Maria signed an agreement giving half of the settlement to Cardinalli. However, when Maria learned of Cardinalli's criminal dealings she reneged on the contract.

In response, and while in custody awaiting trial on his felony matters, Cardinalli filed suit against the store owner for breach of contract. When Maria failed to respond the court entered a default judgment in the staggering amount of $4.5 million! What have experts at a loss is how a court could allow such a default judgment in a law suit brought by an inmate, acting on his own behalf and against a witness in his own criminal matter? Maria testified at Cardinalli's preliminary examination in November and is prepared to testify at trial.

Another judge has since allowed Maria to petition the court and respond to Cardinalli's suit.

Cardinalli has now been declared a vexatious litigant and is also being charged with practicing law without a license.

Source: Gilroy Dispatch

Bay Area and San Jose Lucky stores have become the target of credit card identity theft, the Mercury reports. More than 300 patrons of the popular grocery store have reported unauthorized debits from their credit cards immediately after making purchases from Lucky. The chain store admits that on November 11, 2011 a store employee noticed some sort of tampering with the self-checkout scanning machines. This was followed by complaints of unauthorized activity on customers credit cards. In some cases hundred of dollars were taken from individual accounts.

Save Mart, the parent company of Lucky, announced that its Bay Area stores have been the target of virtual identity theft and that 23 stores have been found with at least one tampered self-checkout machine. It is being reported that the checkout machines contain a "sniffer" device, or on-board computer, that relays a customer's credit card information from the machine onto a new card well outside the store. The thief can then simple take his card with the victim's credit card information on it to an ATM machine and withdraw money.

Save Mart is urging its customers who use the self-checkout machine to check their bank records and if necessary close their accounts. It is not certain if the thefts have ceased or if more people will report being victimized by the scam.

Local Bay Area police say this may be the largest credit card scam in history. However, no suspects have been identified.

Source: San Jose Mercury News

The grades of more than 60 past and current students at Santa Clara University have been changed according to an email from President Michael Engh. The email, which was sent to current and former students of the University on November 14, 2011, was issued concurrently with a press release to the public, indicating that the school's record system was hacked into.

According to the Mercury News, a probe into the records database was launched after one student notified school authorities that her grade was changed for the better. The student's identity and year have not been released.

The "hack job" seemingly took place between June 2010 and July 2011. The FBI has reported that a system check going back to 2006 found more than 60 unauthorized changes, some major, such as conversions from an F grade to an A, while other were more "subtle."

In the press release President Engh indicates that a system wide check is being conducted and any student found to be in violation of the University's Code of Ethics will be punished, possibly including expulsion. However, no students have been named and the hacking intrusion is described as "sophisticated."

Current and past students in all three schools of the San Jose area University are being notified of the system check being conducted by school officials and the FBI.

Continue reading "Santa Clara University, Hacked" »

Governor Jerry Brown vetoed legislation last week that would require police to obtain a warrant before searching the personal cell phone of someone just arrested. The Legislature was responding to a recent California Supreme Court case that ruled police across California, including here in Santa Clara County, may search an arrestee's cell phone (including text messages, emails, photos, recent calls, personal records, bank statements, well, the list goes on) if the search is "incident to the arrest."
The idea of searching a suspect incident to his or her arrest has a long constitutional history. This idea has been expanded by the courts through time, however, more recently the U.S. Supreme Court in the case of People v. Gant, held that such a search must be literally within the scope of the arrestees reach. In other words, to ensure the safety of the arresting officer, and to prevent the loss of evidence, it has been held reasonable for the arresting officer to conduct a prompt, warrantless search of the arrestee's person and the area within his or her immediate control.

This past January, the California Supreme Court in the matter of People v. Diaz, once again has expanded on this idea. Specifically the court declared: "The loss of privacy upon arrest extends beyond the arrestee's body to include personal property immediately associated with the person of the arrestee at the time of arrest. This loss of privacy entitles police not only to seize anything of importance they find on the arrestee's body," but also includes cell phones.

Somehow the court believes it justified to search an arrestee's cell phone 90 minutes after the arrest was made. That is exactly what happened in the Diaz case. Mr. Diaz was involved in a sting operation regarding the sale of illicit narcotics. Diaz was arrested and transported to the Sheriff's Station for booking. An hour and a half later police searched the contents of his cell phone.

It is difficult to see how this search was incident to the arrest, or how the cell phone was still within the area of the arrestee's immediate control. It is painfully obvious that the search was far too removed in time and space to qualify as a search incident to an arrest. The phone had been in exclusive police custody for 90 minutes. It is settled that the area within an arrestee's immediate control means the area from within which the arrestee might gain possession of a weapon or destructible evidence. That being the case, the cell phone ceased to be in Mr. Diaz' immediate control once he was taken into custody and police took possession of the phone. It was quite easy for the police to obtain a search warrant before examining the content of the phone.

Unfortunately the U.S. Supreme Court refused to take the case despite the conflict with Gant. Governor Brown should reconsider his stance and stand up for the Fourth Amendment's protections.

Governor Jerry Brown signed legislation that will prohibit law enforcement agencies, including San Jose and other Bay Area police from impounding vehicles if a driver is discovered to be unlicensed during a DUI checkpoint. Previously, many police agencies would impound vehicles if the driver, even sober and not otherwise impaired, did not have a valid driver's license.

It has been alleged that the policy of impounding such vehicles unfairly affected minority groups, if not even targeted at illegal immigrants who routinely drive without valid licenses. Once impounded, sometimes for up to thirty days, the fees to get the car released can be too costly for the owner to pay. In many cases the owner of the vehicle is forced to abandon it to the City.

Under the new law, the car must be released to a legal and readily available driver. If one cannot be found at the scene of the checkpoint, it is to be released immediately at the impound yard once one is found. However, if the driver is deemed under the influence, police may still have the vehicle impounded at the owner's cost. To read the new law, AB 353, click here.

Continue reading "New Rules for San Jose DUI Checkpoints" »

Law Enforcement agencies in the East Bay have been rocked by a series of scandals involving allegations of threatening witnesses, making false arrests, selling evidence among other claims. However, the Mercury News is reporting that one officer may have colluded to set up one man's recent DUI arrest and conviction.

David Dutcher, a Bay Area resident was arrested and convicted of driving under the influence in 2008. His previous suspicions that he was "set-up" may now have been confirmed and those suspicions involve a conspiracy between his former wife, a too good to be true dinner-date and a now disgraced private investigator and former East Bay police officer.

Dutcher claims that his ex-wife set him up with a flirtatious dinner-date who downed Dutcher with alcohol and promises of an amorous evening before coaxing him into his car. He was soon stopped by a police officer and arrested for having a blood alcohol equivalent of .12%.

It was only after his conviction did Dutcher realize he was being spied on that evening by former PI Christopher Butler. Butler is currently at the center of a grand jury investigation for other previous DUI setups. Dutcher now contends that his ex-wife hired Butler (and his amorous date) in an orchestrated effort to smear his reputation during a child custody battle. Butler has admitted that he tipped off the police officer who arrested Dutcher, but denies any conspiracy. The ex-wife has admitted hiring Butler, but only to make sure their mutual children were not being driven by Dutcher. Dutcher's date is being described as a Las Vegas showgirl and security specialist who has previously worked on sting operations.

Dutcher is now petitioning the court to withdraw his previous plea of guilty. Penal Code section 1018 allows a person to withdraw a plea of guilty and substitute it with a plea of not guilty if good cause can be shown that the plea was not made knowingly and voluntarily and that the defendant did not fully understand all of his or her rights at the time of the guilty plea. In reality, the defendant must show mistake, ignorance, fraud, distress or some other factor that overcame the exercise of free judgment.

Although, Dutcher is a victim (one of several) there is no evidence that he did not understand his rights at the time of his plea and the following consequences. He has admitted to drinking and the subsequent driving. There is nothing to indicate that his guilty plea was anything but knowing and voluntary. Even if there was enough to retract his guilty plea, the case would not be thrown out. He would be able to re-fight the matter with the hope of getting a better deal.

However, Dutcher's case should be dismissed in the interests of justice. The surrounding circumstances have tainted the matter and the participants lack any credibility. Three other and similar cases have been thrown out. It is only fair to dismiss Dutcher's DUI.

The Secure Communities Program, operated by the Immigration and Customs Enforcement Agency (ICE) has been under fire recently. The program requires that local county jails provide all booking fingerprints of new arrestees to the Federal Government. The stated goal of the program is to "improve[] public safety every day by transforming the way criminal aliens are identified and removed from the United States." (see www.ice.gov). The fingerprints are checked against FBI criminal history records and records from the Department of Homeland Security.

Santa Clara and San Francisco counties have attempted to prevent booking fingerprints from being immediately sent to ICE, although this may be in violation of the US Constitution's Supremacy Clause. These counties allege that the Federal Government is deporting undocumented workers for misdemeanors and other minor offenses, which is having a grave impact on families.

The Los Angeles Times reports that State Assemblyman Tom Ammiano has introduced a bill that would modify California's obligations under the Secure Communities Program. The bill would call for automatic disclosure of fingerprints of convicted felons only. Thus fingerprints taken when a person is arrested would remain with the local authorities and only released if such person is convicted. Under these provisions only people who have been convicted of serious and violent crimes would have their fingerprints routed to the Federal Government for the purposes of deporting illegal immigrants.

The legality of the program is itself under review, with accusations of its unconstitutionality or at the very least having exceeded its original authority.

Continue reading "California Seeks to Alter Mandatory Release of Fingerprints" »

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 San Jose Police have announced that the Department will no longer impound vehicles that are stopped for a minor traffic violation and where the driver was unlicensed at the time of the stop. For years the Police have been impounding vehicles for 30 days if the driver could not produce a valid driver's license. It has been a source of revenue for the city, as the fines and fees can be excessive.

It seems that the San Jose Police have caved in the wake of numerous complaints suggesting that this policy greatly impacts illegal aliens who do not qualify for a California driver's license. Immigration advocates argue that the policy puts a greater burden on immigrants who drive to and from work every day, but cannot obtain a legal license to drive.

The new policy allows a police officer the discretion to leave the vehicle parked and wait for a licensed driver to come and take it.

The police will still cite such drivers for a violation of Vehicle Code section 12500, driving without a license.

San Jose police have indicated that the new policy is to renew trust between the Department and the Latino and immigrant communities.

Under state law adults are prohibited from furnishing a minor with alcohol. The state is also prepared to pass a law holding parents responsible for underage drinking and driving. Santa Clara County has similar provisions. However, San Jose is next in line, as Councilwomen Nancy Pyle has proposed an ordinance that would hold parents liable for underage drinking that takes place in their home.

The law is in response to an accident that occurred on September 21, 2010, where the driver was 18-years old and intoxicated. His passenger, Roshan Rahbari, was killed and driver arrested. However, there was no allegation that the driver's parents furnished alcohol, or that the drinking took place in their home.

These laws are sometimes referred to as "social host" regulations. Morgan Hill, Saratoga and Monte Sereno all have similar provisions on the books. In these jurisdictions the ordinances hold parents responsible whether they knew about the drinking or not and punish them with fines. So, if Mom and Dad go on vacation and leave their 18 year old at home, they are responsible for any drinking that occurs in that house.

However well-intentioned these laws are, most surveys report no drop in the amount of alcohol teens consume both in and outside the home. Of course if the county and other cities are any gauge, San Jose will profit from a new source of revenue.

Recently, Santa Clara County Supervisors agreed to not participate with a federal program that requires local county jails to share the fingerprints of inmates who are in the country illegal to federal immigration officials and Immigration and Customs Enforcement or ICE.

The national Secure Communities Program, created about a year ago, is designed to collect fingerprint information to locate and ultimately deport those inmates who are in the country illegally. One report credits that the program is responsible for more than 47, 000 deportations.

Other Counties, such as San Mateo and San Francisco had objected to the program, but those protests have been toned down in recent months after the Department of Homeland security said that local jurisdictions can "opt out" of the program. Secretary Napolitano repeated this pledge in a letter to Congresswomen Zoe Lofgren.

However, last month ICE seems to have changed its attitude and indicated that it is willing to work and talk with local authorities, but the agreement to participate is between the Federal Government and the States, not with those local municipalities. It seems that the local authorities, who are to disseminate information regarding their inmates, have no say in the matter.

Today, if an inmate is here illegally, and serves actual time in a county jail, the government may place an immigration hold on him, which leads to eventual deportation. Under the federal program any illegal immigrant who merely books with the jail will face possible deportation. No longer will attorneys be able to prevent deportation by obtaining an alternative to jail, such as electronic monitoring, weekend work etc. Let's see how far Santa Clara will go with this.

Continue reading "Feds to Santa Clara County: Fork over the Fingerprints" »

As reported by this blog, an officer of the San Jose Police faked an arrest to scare a teenage boy. On August 30, 2010, an unnamed officer discovered that his stepdaughter had engaged in intercourse with her 15 year old boyfriend. The girl was 14 years old at the time. The officer appeared at the boy's home and handcuffed him in front of his parents. The boy was told he was being arrested for having sex with a minor and that the District Attorney's Office would likely file charges.

The cop was put on administrative leave pending an investigation of matter, which was handed to the DA for further review. In a statement the Santa Clara County District Attorney's Office said that the officer had the authority to detain the boy, who was suspected of having committed a crime.

The officer's attorney told reporters that the decision not to file charges was appropriate because: "It is not a crime to act as a concerned father, nor is it a crime to 'scare straight' a juvenile who is heading down the wrong path." She concluded that the boy's parents colluded with the officer to scare their son.

However, there is scant evidence that the officer ever contacted the boy's parents, who have never made that assertion. Further, the parents secretly recorded the incident with a cell phone, which seems to negate the officer's assertion that there was an agreement between him and the parents. Lastly, a "concerned father" would not have the right to handcuff someone just to scare him straight, police officer or not.

If this officer had no intention of arresting the teenage boy his detention and handcuffing was an illegal act. Police officers are not immune from the law. This officer should have come to the home, not in uniform, and talked to the boy's parents. The two families should have settled the matter together. It is the opinion of this blog that the unnamed officer should be prosecuted.

To read this blog's original posting on this incident click here.

Continue reading "San Jose Cop Not to Be Prosecuted for Fake Arrest" »

On the day of its grand opening, the South San Jose Police Substation closed shop for a year or more. Just as the city, city officials and construction workers celebrated the completion of the $92 million facility, the lights were shut and gas turned off. The vacant building is located on Great Oaks Blvd, just off of highway 85.

The City reports that the immediate closure is due to fiscal shortfalls and that a delay of a year will save money and jobs.

"It's a reflection of just how difficult the budget challenges are," says city spokesman Tom Manheim, who nevertheless notes that the substation is expected to have a life of 50 years. He didn't say if that was 50 years of an open building or one in mothballs.

Construction of the substation began in 2007 after voters approved a bond measure in 2002. The structure came in more than $9 million over-budget. The City blames the additional costs on the original design of the facility and orders for additional mechanical and plumbing requirements.

The building is more than 2,000 square feet larger than the San Jose facility and boasts an elegant board room for police officers and detectives, conference rooms, a day care and even a gym. I dare say that the San Jose facility is more the substation than this building. There are, at last count, 25 plasma televisions throughout the structure.

What, no donut shop?

Continue reading "San Jose Police Substation Opens and Closes on Same Day" »