On April 22, 2020, I spoke with Levende Cloud owner, and long-time friend Justin Pugh regarding how I became a criminal defense attorney.
Category: criminal defense
Police Stops and Your Rights
tips on safely interacting with police during stops
Knowing your duties, rights, and law enforcement objectives can help you safely navigate an encounter with law enforcement. Below is a brief discussion of things to consider if the police stop you.
step 1: know your duties
Identify Yourself
You must identify yourself if police have probable cause to believe you committed a crime, have a warrant for your arrest, or are in violation of probation or parole.
Provide Your Driver’s License
You must provide your driver’s license if you are pulled over while driving.
Probation or Parole
You must admit that you are on probation or parole if doing so is a condition of your probation or parole.
step 2: know your rights
Remain Silent (5th Amendment)
Except for the duties above, you are not required to respond to questions.
Refuse Search (4th Amendment)
You do not have to allow police to search you, your possessions, or your vehicle, unless submitting to search is a condition of probation or parole.
Ask if You are Free to Leave (4th Amendment)
If you are not free to leave, law enforcement must have a reason for detaining you.
step 3: know the police
Authority
Authority figures do not like signs of disrespect, such as being ignored, or rude, impolite, or offensive behavior.
Crime-fighting
The modern policing focuses on crime-fighting. If police believe you are obstructing or delaying them from this objective, the could arrest you or use force against you.
Armed
Consider that most police are armed and some carry fully automatic assault weapons.
Immunity
Officers are immune to most civil lawsuit and rarely face criminal prosecution or internal discipline. Therefore, police have few if any consequences for harming you or violating your rights.
What Can I Say to Police?
- I respect law enforcement and the job you do.
- However, I am not going to consent to a search of myself, my property, or my vehicle.
- I will not resist you, but I will not consent to my detention, search, or seizure.
- Nor will I answer any questions without my lawyer present.
- With that being said, am I free to leave?
What Can I Do if Police Violated My Rights?
If you can prove police misconduct, the judge could dismiss your criminal case. You could also sue the law enforcement for violating your established constitutional rights.
Firearm Prohibition for Misdemeanor Domestic Violence
Firearm Prohibition
Current law places a ten year firearm prohibition on person convicted of certain violent crimes. Basically, this means a person cannot own, possess, control, purchase, or receive a firearm.
This includes a misdemeanor conviction for domestic violence.
Assembly Bill 3129
Beginning January 1, 2019, a conviction for misdemeanor domestic violence (Penal Code Section 273.5) will result in a lifetime firearm prohibition.
The punishment for violating this law is a maximum fine of $1,000 and/or up to one year in jail or prison. Because prison is a possible sentence, this violation can be charged as a misdemeanor or a felony.
Which Crimes Result in Ten Year Firearm Prohibition?
The ten year prohibition applies to many violent misdemeanors, including battery, domestic violence, criminal threats, and brandishing a weapon.
For a list of all misdemeanor convictions that require a firearm prohibition, see Penal Code Section 29805.
How Long Does the Prohibition Last?
A misdemeanor domestic violation conviction under Penal Code Section 273.5 results in a lifetime ban. However, the law does not take affect until January 1, 2019.
All other misdemeanors listed under Penal Code Section 29805 result in a ten year ban.
Contact
924 Anacapa Street, Suite 1-T
Santa Barbara, CA 93101
(805) 635-7766
RABLAW805@gmail.com
When Do SB 1437 Changes to Felony Murder Rule Start?
Felony Murder Rule Relaxed by Senate Bill 1437
On September 30, 2018, Governor Brown signed Senate Bill 1437 into law. SB 1437 relaxed the felony murder rule. Beginning January 1, 2019, a participant in a felony is guilty of felony murder only if he or she:
- Was the actual killer, OR
- With the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree, OR
- Was a major participant in the underlying felony and acted with reckless indifference to human life.
When Does SB 1437 Take Affect?
Senate Bill 1437 takes affect beginning January 1, 2019. Qualified inmates convicted before that date can petition to be re-sentenced.
Qualifying for Re-sentencing
There are three qualifications for re-sentencing.
First, a complaint, information, or indictment was filed against the defendant that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine.
Second, the defendant was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the defendant could be convicted for first degree or second degree murder.
Lastly, the defendant could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019.
How to Petition for Re-sentencing
The first step is to file a petition with the sentencing court. The inmate must include a declaration by the inmate that he or she meets the qualifications for re-sentencing.
The second step is for the court to determine whether the inmate meets the three qualifications for re-sentencing.
If the inmate meets the qualifications for re-sentencing, the third step is a hearing. This hearing is called an “Order to Show Cause.” At that hearing, the court will determine whether to vacate the murder conviction.
Felony Murder Re-sentencing
The court may recall the felony murder sentence and re-sentence the inmate on any remaining counts.
The inmate can be sentenced as if he or she had not been previously been sentenced. However, the new sentence cannot be greater than the initial sentence.
Contact
924 Anacapa Street, Suite 1-T
Santa Barbara, CA 93101
(805) 635-7766
RABLAW805@gmail.com
Senate Bill 1142 – Changing How Jails Release Inmates
Senate Bill 1142
Senate Bill 1142, also known as “The Getting Home Safe Act,” would change how inmates are released from county jail.
Changes Proposed by Senate Bill 1142
First, sheriffs would release inmates between 8 a.m. and 5 p.m. If inmates are not released during that time, they could remain in jail until normal business hours the next day.
Second, inmates could request transportation from jail up to 100 miles away.
Third, sheriffs would provide a safe place for inmates to wait for a ride. The place would have equipment to charge a cell phone and access to a free public telephone.
Fourth, sheriffs would provide a 3-day supply of medicine to anyone incarcerated for more than 30 days.
Fifth, inmates could request transportation from jail to a drug or alcohol rehabilitation facility.
Why do we need Senate Bill 1142
The late-night release of inmates is dangerous for inmates. It is also dangerous for the public health and safety of the community at large.
It is especially dangerous for women, including transgender women. Such women can be targets for physical abuse, sexual abuse, and sex trafficking.
Additionally, inmates with mental illness or substance addiction are unlikely to be able to access treatment services late at night.
In 2014, California passed legislation to allow county jails to voluntarily participate in a program to reduce the number of late-night releases. However, few jails changed their release policy. Instead, jails continue to regularly release inmates during late-night hours.
These release policies are cruel and fail to acknowledge lived trauma that inmates have experienced. This is particularly true of women who are involved in the criminal justice system.
The Legislature intends to ensure that people are released quickly from county jails. Further, inmates should be released under conditions that protect their health and maximize the likelihood of their success. Therefore, the legislature will impose statewide release standards for county jails to follow.
Contact
924 Anacapa Street, Suite 1-T
Santa Barbara, CA 93101
(805) 635-7766
RABLAW805@gmail.com
Senate Bill 1437 – Eliminating Felony Murder in California
Senate Bill 1437
Senate Bill 1437 would amend the penal code to more equitably sentence offenders according to their involvement in the crime.
Specifically, to be convicted of murder, the prosecution would need to prove that a participant in a crime acted with “malice.”
Senate Bill 1437 aims to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony.
Current Status of SB 1437
As of September 27, 2018, the bill is on Governor Brown’s desk, awaiting approval or veto.
Current Law
Malice
“Malice” is a deliberate unlawful intention to take away the life of another. Malice is required for a conviction for first or second degree murder, except in the case of felony murder.
Felony Murder
Under felony-murder, a defendant does not have to intend to kill anyone, nor commit the homicidal act, to be sentenced to first-degree murder. A defendant can be sentenced to first-degree murder even if the killing was unintentional, accidental, or negligent.
Proposed Changes
Malice
Under SB 1437, malice would not be imputed to a defendant based solely on his or her participation in a crime. The prosecution would need to prove that the defendant acted with deliberate intention to kill, killed without provocation, or killed with an abandoned and malignant heart.
Felony Murder
SB 1437 would change the felony murder rule so that a participant is only guilty of felony murder if:
- The person was the actual killer, OR
- The person, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree, OR
- The person was a major participant in the underlying felony and acted with reckless indifference to human life.
Current Law
First-Degree Felony Murder
A conviction for first-degree murder results in a sentence of 25 years to life.
To be convicted of first-degree felony murder, the prosecutor only needs to prove that the killing was committed in the perpetration or attempt to perpetrate a felony specified in Penal Code Section 189.
Those felonies are arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, torture, sodomy, lewd act on a child under 14, oral copulation, and rape by instrument.
Current Law
Second-Degree Felony Murder
A conviction for second-degree murder results in a sentence of 15 years to life.
To be convicted of second-degree felony, the prosecutor only needs to prove that the killing was committed in the perpetration or attempt to perpetrate an “inherently dangerous felony.”
Inherently dangerous felonies include but are not limited to discharging a firearm at an inhabited dwelling, manufacturing methamphetamine, maliciously burning a car, and possessing a bomb in a residential area.
Contact
924 Anacapa Street, Suite 1-T
Santa Barbara, CA 93101
(805) 635-7766
RABLAW805@gmail.com
Can Police Search if They Smell Marijuana?
Can Police Search Me if They Smell Marijuana?
With some exceptions, police may not search a suspect or his/her property solely because they smell marijuana.
Proposition 64, known as the Adult Use of Marijuana Act, was enacted November 9, 2016. It prohibits a search based on legal possession or use of marijuana.
In order to conduct a search, police must have reason to believe the marijuana possession or use is illegal or that the suspect is engaged in some other illegal activity (In Re D.W.).
What Can Police Do if They Smell Marijuana?
Police MAY investigate further based on the smell or issue a notice to appear in court. Below is a discussion of some scenarios where police can arrest a suspect when they smell marijuana.
Driving Under the Influence
Driving a vehicle while “under the influence” of marijuana is illegal under Vehicle Code Section 23152(f).
Police may arrest the driver if they have probable cause to believe the driver is under the influence of marijuana.
Illegal Marijuana Activity
Police may arrest a suspect if they have probable cause to believe the suspect is illegally using, transporting, cultivating, selling, possessing marijuana, or manufacturing concentrates. See Health & Safety Code Sections:
- 11362.4(c)/11362.3(a)(5) – Use of Marijuana;
- 11360 – Transportation;
- 11358, 11362.4(f)/11362.2(a) – Cultivation;
- 11359 – Sale;
- 11357 – Possession; and
- 11358, 11362.4(d)/11362.3(6) – Manufacturing concentrates.
Search Incident to Lawful Arrest (“Sila”)
Police may search a suspect who in the process of being arrested or has been placed under arrest.
Police may search a suspect and the suspect’s immediate area for weapons or evidence that can be concealed or destroyed (Chimel v. California).
Probable Cause
Probable cause means law enforcement is aware of facts and circumstances that would lead a reasonable person to believe that the person is guilty of a crime (Brinegar v. United States).
Probable Cause for Marijuana-related Crimes
Common facts and circumstances used by law enforcement to support probable cause include:
-
- Smoke or paraphernalia in car.
- Smell marijuana smoke on hands or breath.
- Strong smell of marijuana in vehicle.
- Appearance and actions of driver.
- Failed field sobriety test(s) (ok to refuse).
- Suspect confesses to illegal conduct.
- Pay/owe sheets, scales, large quantities of money.
- Driver is sole occupant and/or car full of luggage.
Contact
Prop 47 Case Law Update
What is Prop 47?
Prop 47 makes certain drug and property offenses under $950 a misdemeanor.
Prop 47 Case Law
Prop 47 was passed on November 4, 2014. Since then, courts have ruled that the following charges should also be misdemeanors:
- Embezzlement of $950 or less – Penal Code 503 (People v. Warmington)
- Joyriding of a vehicle worth $950 or less – Vehicle Code 10851 (People v. Page)
- Attempting to cash a check worth $950 or less – Penal Code 459.5 (People v. Gonzales)
- Theft of Account Information of $950 or less – Penal Code 484e(d) (People v. Romanowski)
Proposition 47 Does Not Apply to the Following Charges
- Medical Prescription Forgery – Health and Safety Code 11368 (People v. Gallardo)
Proposition 47 Applies to the Following Charges:
- Shoplifting – Penal Code 459 – Shoplifting
- Forgery – Penal Code 470-476
- Fraud/Bad Checks of $950 or less – Penal Code 476a
- Grand Theft of $950 or less – Penal Code 487
- Petty Theft/Shoplifting of $950 or less – Penal Code 484, 484/666
- Possession of Methamphetamine – Health & Safety 11377
- Possession of Controlled Substance – Health & Safety 11350
- Possession of Concentrated Cannabis – Health and Safety 11357(a)
- Receiving Stolen Property – Penal Code 496
Prop 47 is Retroactive
Proposition 47 applies to cases prior to November 4, 2014. Inmates must file a petition in the county courthouse where they were convicted. The petition forms vary by county and can be accessed here.
Contact
(805) 635-7766
RABLAW805@gmail.com
SCR 48: Resolution to Reform Felony Murder Rule
SCR 48 – Senate Concurrent Resolution
SCR 48 is a senate concurrent resolution passed on September 22, 2017. It recognized the need for statutory reform to more equitably sentence offenders according to their involvement in the crime.
Although SCR 48 did not make any changes to existing law, it laid the foundation for Senate Bill 1437 – Accomplice Liability for Felony Murder.
Senate Bill 1437 is making its first pass through the California state legislature. After the Committee on Public Safety approved the bill by a vote of 6-1, it was referred to the Senate Appropriations Committee. A meeting before the Appropriations Committee is currently set for May 7, 2018.
SCR 48 – Punishment Should Match the Crime
Currently there are 2 laws – felony murder and aiding and abetting – that impose a punishment that is disproportionate to the criminal activity. SCR 48 recognizes that it is fundamentally unfair and in violation of basic principles of individual culpability to punish a person for the unforeseen results of another’s action.
SCR 48 – Overcrowded Prisons are Expensive
According to SCR 48, California continues to house inmates in numbers well beyond its maximum capacity at an average of 130% of capacity. WASCO, for example, is 2,000 inmates over the designed maximum capacity. Incarceration of an inmate in California costs taxpayers $70,836 per year. There are currently approximately 118,000 inmates incarcerated in California.
Malice
“Malice” is a deliberate unlawful intention to take away the life of another. Malice is required for a conviction for first or second degree murder, except in the case of felony murder.
Felony Murder
Under felony-murder, a defendant does not have to intend to kill anyone, nor commit the homicidal act, to be sentenced to first-degree murder. A defendant can be sentenced to first-degree murder even if the killing was unintentional, accidental, or negligent.
First-Degree Felony Murder
A conviction for first-degree murder results in a sentence of 25 years to life.
To be convicted of first-degree felony murder, the prosecutor only needs to prove that the killing was committed in the perpetration or attempt to perpetrate a felony specified in Penal Code Section 189.
Those felonies are arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, torture, sodomy, lewd act on a child under 14, oral copulation, and rape by instrument.
Second-Degree Felony Murder
A conviction for second-degree murder results in a sentence of 15 years to life.
To be convicted of second-degree felony, the prosecutor only needs to prove that the killing was committed in the perpetration or attempt to perpetrate an “inherently dangerous felony.”
Inherently dangerous felonies include but are not limited to discharging a firearm at an inhabited dwelling, manufacturing methamphetamine, maliciously burning a car, and possessing a bomb in a residential area.
Contact
California Becomes A Sanctuary State
California Becomes A “Sanctuary State”
On October 5, 2017, Governor Jerry Brown signed the California Values Act. The “sanctuary state” law aims to protect California’s 2.3 million undocumented citizens from federal immigration authorities (ICE).
Currently local authorities may release inmate information, including citizenship status, to federal immigration authorities. When the law becomes effective on January 1st, 2018, ICE will no longer be notified when undocumented immigrants are released from jail.
When Does The Sanctuary State Law Start?
The sanctuary state law is set to go into effect on January 1, 2018. If the Trump administration, which opposes the law, challenges the law in federal court, the start date of the law could be delayed until the conclusion of court proceedings.
What Changes?
The California Values Act does not prevent ICE from looking for people without documentation or executing search warrants for non-citizens. The law does ban state and local agencies, excluding the California Department of Corrections and Rehabilitation, from enforcing “holds” on people in prison custody.
The act blocks the deputization of police as immigration agents and bars state and local law enforcement agencies from asking about immigration status. It also prohibits new or expanded contracts with federal agencies to use California law enforcement facilities as detention centers.
California Responds To Trump Administration
State and local governments are locked in a battle with Attorney General Jeff Sessions over Sessions’ move to slash federal grant funding from “sanctuary jurisdictions.” A number of California cities have become sanctuary cities or cut ties with immigration authorities, including San Francisco and Los Angeles.
Proponents of the law argue that it makes immigrant communities safer by encouraging trust, cooperation and communication between immigrants and local authorities. Research has shown sanctuary cities have lower crime rates and that immigrants commit fewer crimes than U.S. citizens.
The Trump administration has tried to draw a link between undocumented immigrants and increases in violent crimes.
Santa Barbara County Sheriff
Santa Barbara Sheriff Bill Brown, president of the California State Sheriff’s Association, opposed the California Values Act. Brown says people will be victimized as a result of the new law.