In recent years, technical tools that can record a cop’s every act have shined a bright light on police abuses. This is especially true now with the ubiquitous dashcams attached to almost every police cruiser in the nation. Apparently some cops don’t like this. As the police have become increasingly scrutinized by the public eye, their dash cams have become increasingly “broken.”

In Chicago, over 80% of the dash cams are not working properly and this isn’t a case of a lot of faulty equipment. Chicago police officials acknowledge that Chicago police are sabotaging the equipment! Reports include batteries being pulled out of the units, antennas broken or removed, and dashcam microphones missing. But, after all, it’s Chicago.

Well, it’s not just Chicago. In Prince George’s County, Maryland, an investigative reporter was pulled over by seven police cars as she was following a county official in pursuit of news regarding the misuse of public funds. The reporter alleged that she was roughed up by the officers and sued for injuries she claimed the officers caused. Lo and behold, all of seven the dashboard cameras in the seven police cars “malfunctioned” and the video the reporter subpoenaed for her lawsuit was “unavailable.” That’s right: the police claimed that all seven dashcams malfunctioned at the same time!

In the recent Sandra Bland incident in Texas, the Texas Department of Public Safety announced that they were looking into possible edits of the dashcam footage taken of Ms. Bland’s arrest. Also in Texas, a Court of Appeals judge wrote in her dissent on a case that dashcam video of arrests is often missing or damaged. This judge admonished the courts that they must address the repeated failure of officers to use the recording equipment that the taxpayers are paying for.

And right here in our own backyard, police were found to have sabotaged their recording equipment. In 2014, an investigation by the Police Commission in Los Angeles found that police officers had tampered with their recording equipment. The investigation found that over half the squad cars in the Southeast L.A. patrol division were missing antennas. The antennas function to transmit audio recorders the police wear to transmit back to the squad car.

Whether you think police abuse needs to be reined in or that the police are just doing their job, audio and video recording devices serve not only to keep the cops honest but also to protect them from unfounded allegations of abuse. One must wonder why all of these cops are tampering with, or even destroying, their recording equipment.   The implication is that there is something these cops do not want the public, or the courts, to know. The police may be able to remove batteries or break antennas now but the near future promises technological advances that will soon make it impossible for the police to hide from their watchers.

 

In 1963 Henry Montgomery was a 17 year old living in Baton Rouge, Louisiana. He was playing hooky from school when he was approached by a deputy sheriff assigned to round up truants. When the deputy frisked Henry, Henry pulled out a cheap .22 and fatally shot the deputy. Henry’s lawyers argued that their client, who had an I.Q. in the 70s, panicked and did not fully understand the consequences of his actions. Henry was convicted and ultimately ordered to serve a life sentence without the possibility of parole. Now 69 years old, Mr. Montgomery has spent 52 years of his life in prison and until January 25, 2016, had no chance of parole.

In 2012, the United States Supreme Court held in Miller v. Alabama, 567 U.S. ___ that mandatory sentencing of juveniles to life without the possibility of parole was unconstitutional. This case and others concerning the sentencing of juveniles was discussed in my recent blog titled “The Teenage Brain.” Following the Miller decision, many states held that the decision did not apply retroactively. Louisiana was one of those states. The Louisiana Supreme Court ruled that the unconstitutionality of sentencing as enunciated in the Miller decision applied prospectively only. Thus, those serving life sentences without parole for crimes committed as juveniles in Louisiana had no hope of challenging their sentence based on the Miller decision. Mr. Montgomery decided to challenge Louisiana.

The United States Supreme Court decided to hear Mr. Montgomery’s argument and on January 25, 2016 issued its decision in Montgomery v. Louisiana. The Supreme Court ruled that the Miller decision applies not only to contemporary cases, but also to all those sent to prison for life, without the possibility of parole, no matter how long ago the defendant was sentenced. Thus Mr. Montgomery and others similarly situated must now be given the opportunity to petition the appropriate state court for relief from a mandatory life sentence without parole for a crime committed as a juvenile.

The Supreme Court, referring to these sentences as Miller violations, surmised that a Miller violation may be remedied by the state by permitting juvenile offenders to be considered for parole. In the Montgomery decision, the Supreme Court recognized that “allowing [these] offenders to be considered for parole ensures that juveniles whose crimes reflected only transient immaturity—and who have since matured—will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment” and that this applied to juvenile offenders no matter how long ago they were sentence. This reflects the Supreme Court’s acknowledgment that the teenage brain is not yet mature.

The Montgomery decision does not mean that every “lifer” who was sentenced for a juvenile crime is entitled to automatic parole, only that he or she is entitled to an opportunity for a parole hearing. As the Supreme Court noted, life in prison is a disproportionate sentence for a juvenile offender except in those rare occasions where the juvenile offender “exhibits such irretrievable depravity that rehabilitation is impossible and life without parole is justified.”

The Montgomery decision is an extension of the Court’s evolving understanding of juvenile offenders and the influence of the teen brain’s “transient immaturity.” There are, as the Supreme Court acknowledges, the rare juvenile “whose crimes reflect irreparable corruption.” The Montgomery opinion not only gives hope for release from prison to those such as Henry Montgomery but makes it clear that for the vast majority of juvenile offenders, mandatory life without parole is a sentence that should be as rare as the juvenile whose crime is so depraved that there would be no chance the offender could ever be rehabilitated.

California’s sex offender laws are among the strictest in the country. Even relatively minor sex offense convictions usually end up requiring a lifetime registration on the sex offender list. So what is a “relatively minor” sex offense you might ask. Well, consider the 18-year-old who is arrested for having consensual sex with a minor— that minor being his 16-year-old girlfriend. Or how about an adult of 19 who is convicted of making obscene and harassing phone calls to a minor, that minor being his younger brother’s friend and the acts, while immature, were done as a joke. While these acts and other similar crimes aren’t acts to be excused, they are hardly acts that suggest the offender poses a significant and lifetime risk of committing sex crimes. But that is how almost all so-called sex crimes are treated.

There are almost 100,000 sex offenders registered in California and this state is one of only four that requires a lifetime registration. The U.S. Justice Department estimates that more than a quarter of the sex crime registrants were minors at the time of the offense. According to the California Sex Offender Management Board, almost 900 of the registered sex offenders committed their last sex crime over 55 years ago. The strict requirements placed on sex offender registrants regarding where they can live has created an underclass marginalized by society.

How did the sex offender laws become so stringent in this country, and especially in this state? Even after serving the sentence for the crime, the sex offender is never relieved of the burden. The idea behind the registration laws is that sex offenders are likely to recommit sex crimes and therefore present an ongoing risk to society. But is this true?

Actually, according to the California Sex Offender Management Board approximately 95 percent of solved sex crimes are committed by people who are not on the registry. In other words, only 5 percent of the sex crime convictions are committed by persons who are registered as sex offenders. And that isn’t because most of the registered sex offenders are incarcerated. Approximately 20% of sex offender registrants are incarcerated, but most not for the sex offense. According to the California Corrections Department, most sex offenders (88%) who are incarcerated are in prison not for a sex crime but for parole violations or violations of the sex registration requirements. Less than 2% are incarcerated for committing a new sex offense. According the California Corrections Department’s own statement: “Offenders who are required to register as a sex offender are more likely to be recommitted to CDCR [California Department of Corrections and Rehabilitation] for a new nonsex crime than for a new sex crime. ” And those sex offenders who are required to register have a higher recidivism rate than those offenders who are not required to register.

So what does this mean? The legal community is becoming increasingly aware that the sex offender registry does not result in a decrease in the number of sex offenses. The reasons for this are complex. In many, if not most, cases, the registrant is not a recalcitrant sex offender. In fact, the entrenched belief that sex offenders have a high sex offender recidivism rate is simply unfounded. Even so, the United States Supreme Court and many other courts of the land continue to express this view.

One legal scholar tracked the courts’ oft quoted statement that the “risk of recidivism posed by sex offenders” is “frightening and high.” Turns out this statement is pure fiction but has been repeated so many times it has become as if a fact. Recent scientifically controlled studies indicate that almost 70 percent of even the high-risk offenders never commit another sex crime and even more stunning, 95 percent of the low-risk offenders never commit another sex crime. Yet, here in California, many if not most of those low-risk offenders are required to register as a sex offender—with all the attendant restrictions that carries—for life.

The California Sex Offender Management Board has recommended to the Legislature that only those classified as high-risk offenders be required to register for life. But this is a political hot potato that no legislator wants to touch. The public, not understanding the nuances of the law and believing that once a sex offender, always a sex offender, will surely condemn any legislator who tries to reform these laws. You may not care, but if it was your teenaged son who ended up a lifetime sex offender registrant because he had consensual sex with his underage girlfriend or your friend who ends up on the registry for urinating in public (yes, it can happen), you might realize that the sex offender registry laws are in dire need of reform.

 

Ask any parent of a teenager whether teenagers think like adults and you are likely to get a hearty chuckle from the parent. It is self-evident that teenagers do not have the same reasoning and decision-making skills as an adult. We don’t need to be the parent of a teen to know—after all we were teens once and we no doubt remember the stupid things we did.

Brain science has come a long way in helping us discover why this is so. It is now an accepted scientific fact that the human brain does not fully mature until a person reaches his or her early 20’s. And the areas of the brain responsible for controlling impulses and planning ahead are among the last areas of the brain to mature.

Yet, our justice system typically treats the juvenile offender (roughly 15-18 years old) as an adult. It is always tragic when a young person commits a crime but shouldn’t we be taking into consideration the fact that these teen criminals are not capable of controlling their impulses or making a decision in the same way that adults are? The Supreme Court says “yes.”

The Eighth Amendment prohibits cruel and unusual punishments and it is made applicable to the States by the Due Process Clause of the Fourteenth Amendment. In 2005, the United States Supreme Court held in the case Roper v. Simmons, 543 U.S. 551 (2005) that the Eighth and Fourteenth Amendments prohibit application of the death penalty to juvenile offenders between the ages of 15 and 18 who are convicted of a capital crime. The Supreme Court recognized that science has established that a young person’s brain has not yet matured. As the Court observed: The qualities of the youthful brain “often result in impetuous and ill-considered actions and decisions.”

Five years later in Graham v. Florida, 560 U.S. 48 (2010), the Supreme Court considered whether a sentence of life without parole was appropriate for a juvenile convicted of a non-homicide crime. Again the Court deferred to the scientific understanding of the teen brain and held that such a sentence is prohibited by the Eighth and Fourteenth Amendment.

Three years later in 2012, the Supreme Court held in the case Miller v. Alabama, 132 S. Ct. 2455 (2012) that mandatory penalty schemes, which prohibit the consideration of mitigating factors for juveniles, violated Eighth Amendment’s prohibition on cruel and unusual punishment. The Court observed that juveniles are not “miniature adults” and they should not be treated as such. The Court again recognized the brain science which informs us that teens lack maturity and have an underdeveloped sense of responsibility, which often leads to recklessness, impulsivity and risk-taking behaviors. The Court also noted that the teen brain is more vulnerable to outside influences and pressures.

All of these cases noted that the teen brain, being not fully formed, is less fixed and presents a greater possibility for positive change and reform than does the adult brain. Because the teen brain is still forming, it is more susceptible to bad acts, yet also more capable of reform.

When a teen commits a horrible crime, it is difficult to give him or her the excuse that the crime was committed due to an immature brain. But, if not an excuse, it is often a reason. Of course, most teens don’t go around committing heinous crimes just because they don’t have adult brains, but those teens that do commit such crimes are, at least in part, often a victim of their immature brain. A child who is not well-guided in life or who is easily influenced by the wrong person may end up committing a crime that he or she would never commit if given a few more years at life. There are many adults, even elderly adults, who have spent their entire adult life in prison because of a crime they committed as a teen. The Supreme Court has now recognized that these young offenders are often deserving of a chance at rehabilitation.

When a teen is arrested and charged with a crime, he or she needs an experienced juvenile defense attorney who can fight to keep the case in juvenile court or, if moved to adult court, make sure the crime is tried with special consideration to the offender’s still developing brain.

 

A young man from Buena Park now faces charges of vandalizing a Sikh temple, which he claims was not meant to be received as hate speech. The man faces felony vandalism of religious property and two misdemeanors on suspicion of vandalism. His defacement caused nearly $400 in damages.

On Dec. 6th, members of the temple were arriving for night services when they found the parking lot walls and a commercial truck sprayed with graffiti as well as a vulgar phrase about the Islamic State group.

To be clear: Sikhism is not affiliated with Islam or the Islamic State.

According to Penal Code Section 594-625c: A person who maliciously commits any of the following acts with respect to any real or personal property not his or her own, in cases other than those specified by state law, is guilty of vandalism:

   (1) Defaces with graffiti or other inscribed material.

   (2) Damages.

   (3) Destroys.

1) Also, any person who knowingly commits any act of vandalism to a church, synagogue, mosque, temple, building owned and occupied by a religious educational institution, or other place primarily used as a place of worship where religious services are regularly conducted or a cemetery is guilty of a crime punishable by imprisonment in a county jail for not exceeding one year or imprisonment pursuant to subdivision (h) of Section 1170.

2) Any person who knowingly commits any act of vandalism to a church, synagogue, mosque, temple, building owned and occupied by a religious educational institution, or other place primarily used as a place of worship where religious services are regularly conducted or a cemetery, which is shown to have been a hate crime and to have been committed for the purpose of intimidating and deterring persons from freely exercising their religious beliefs, is guilty of a felony punishable by imprisonment.

The man was arrested Dec. 9 when detectives compared the temple vandalism to graffiti in a nearby area he admitted to writing earlier in the day.

A few days later, the young man apologized. A video posted on Facebook showed him reading an apology letter in front of the congregation, while wearing a religious head garb.

In the video he stated that, “there isn’t the right amount of words to explain for my actions, but the truth is, it was an idiotic decision I made while intoxicated. I consumed heavy amounts of alcohol that night and made a poor decision to graffiti random locations.”

“I know your guys’ faith and church have nothing to do with the Muslim religion or Islam, that is why I did not write the profanity on your walls or temple. The only reason I wrote what I wrote on the truck was because I was intoxicated and I figured the truck travels through the state and through the country.”

The man faces up to three years in prison.

If you have any questions about vandalism or defacement of property please contact me at 949-474-8008.

 

The Netflix surprise hit over the recent holiday season was the documentary Making a Murderer. The story this documentary told was so engrossing that many people reported finishing all ten one-hour episodes within a day or two. Now that’s binge watching!

What compelled so many to devour this docu-series is that it followed the true crime saga of Steven Avery, a Wisconsin man who was exonerated of a rape he was convicted of committing and for which he spent 18 years in prison only to find himself back before the court a couple of years later convicted of a murder that he, to this day, insists he did not commit. Making a Murderer follows the murder trial and ultimately Mr. Avery’s conviction. What has gripped the nation is the questionable tactics used by law enforcement and the dubious evidence they presented in order to get a conviction – and from the documentary’s point of view – a conviction no matter what it took.

One key piece of evidence the prosecution used against Mr. Avery was the confession of his then 16-year-old intellectually challenged nephew. The detectives interviewed the nephew alone, no parent or attorney was present. The documentary shows extensive video clips from the nephew’s “interview” (read: interrogation). There is no question after viewing these clips that the nephew, unaware of his precarious situation, was manipulated and coerced into eventually “confessing” that he took part in the murder. Without divulging more, this is only one piece of evidence in a series of disturbing and suspicious facts presented by the prosecution. Watching the police “interview” of the nephew has opened up a firestorm of outrage and questions. Was this legal? Can the police interview a juvenile without any parent or attorney present? Is a police interview that results in a coerced confession legal?

In California, it is legal to interview (interrogate) a juvenile without a parent or attorney present. There is no constitutional right that a parent must be present and even if the juvenile asks for his or her parent, the law does not require that the interview cease until a parent is present. As in any police interview/interrogation, whether of an adult or a minor, the interrogation must be voluntary.

The voluntariness of a police interrogation is a murky area, especially when the subject of the questions is a juvenile. Minors, who are still under the supervision of authorities (parents and school), are more likely to answer as the authority (police) suggests and do not always have enough understanding to avoid being manipulated into admissions that aren’t actually true.   While the age of the subject may be considered in the context of a confession, the legal standards for what constitutes a voluntary confessions is no different than it is for adults. And those standards are very generous indeed. Broadly speaking, if the police didn’t beat or torture the confession out of a suspect, it is usually considered voluntary. The deceptive and manipulative tactics depicted in Making a Murderer are completely legal.

There is a lesson here. The interrogation of Mr. Avery’s nephew is a very public demonstration of something that occurs on a regular basis. Anyone, adult or juvenile, has the constitutional right to refuse to participate in a police interview without the presence of an attorney. It is common that, as was the case with Mr. Avery’s nephew, the subject of the interview cooperates without an attorney present thinking they did nothing wrong only to find him or herself manipulated into confessing to a crime he or she did not commit. Believe me; it happens more often than you think! If you ever find yourself being questioned about a crime by the police, you should request the presence of an experienced criminal defense attorney before you answer any police questions (beyond your name, date of birth, and address). Remain silent until an attorney is there to represent you. This is wise advice even if you believe you did nothing wrong.

The Marijuana Laws Are A-Changin’

Back in 1964 when Bob Dylan sang “The Times They Are A-Changin’,” marijuana was called the “killer weed” and even simple possession was a felony in California carrying a sentence of one to ten years. Now over 60 years later, the citizens of California will decide whether to legalize the recreational use of marijuana. The wheels of change grind slowly.

California was the first state to enact laws allowing the regulated sale, cultivation, and use of medical marijuana. Since then, other states have pushed forward and made the recreational use of marijuana legal. Recreational use is now legal in Oregon, Washington, Colorado, and Alaska, as well as the District of Columbia. California has its own ballot initiative, which will be before the voters in the 2016 elections. If the initiative passes, the recreational use of marijuana will become legal.

As of now, however, only qualified medical marijuana sale, cultivation, and use is permitted under California law. On October 9, 2015, in what is the most far-reaching imposition of regulations affecting the 20-year old California medical marijuana laws, known as the Compassionate Use Act of 1996 (CUA), Governor Jerry Brown signed a bill, the Medical Marijuana Regulation and Safety Act (MMRSA). Among other new regulations, MMRSA clarifies how medical marijuana can be sold and sets up a licensing scheme for medical marijuana dispensaries. Included in the bill is a provision that gives local municipalities until March 1, 2016 to enact local regulations that would govern the sale of medical marijuana in local jurisdictions or yield to the state laws. As a result, many municipalities have been scrambling to enact their own more restrictive local laws governing the sale of medical marijuana.

In a recent decision by the Fifth District Appellate Court (Kirby v. County of Fresno (Cal. Ct. App. – Dec. 1, 2015) a local Fresno regulation that restricted the personal cultivation of medical marijuana was found to be in conflict with the California Supreme Court’s holding that provisions of the CUA impose an obligation on local law enforcement agencies and officials. The City of Fresno enacted an ordinance in 2014 that prohibited all medical marijuana activity, including cultivation, as a nuisance or misdemeanor. Diana Kirby, who lives in Fresno, and was qualified as a medical marijuana patient, was cited by the city of Fresno for cultivating medical marijuana for her own use.

The Fifth District Appellate Court held that municipalities cannot criminalize possession and cultivation of medical marijuana in direct contravention to the Compassionate Use Act, which specifically provides that a qualified medical marijuana patient cannot be arrested for possession or cultivation of medical marijuana as long as the amount of marijuana is within the amounts allowed by the law. (Health and Safety Code §11362.72(e).)

Returning to the MMRSA, among its provisions are regulations regarding the cultivation of medical marijuana. Since the California Supreme Court held that cultivating medicinal marijuana in California in the amounts allowed by law is not a criminal act, any new regulations enacted by municipalities in advance of the March 1, 2016 deadline that makes illegal all cultivation of medical marijuana would be subject to challenge under this holding. However, the decision did not foreclose the possibility of enacting fines under zoning laws, which is certainly one way municipalities could effectively make it impossible to cultivate or use medical marijuana in that municipality.

The upshot is that as municipalities write regulations in advance of the March 1, 2016 in an effort to, in effect, ban medical marijuana use, cultivation, or sale, the regulations cannot make such acts a crime. However, It all may be for naught as the legislator that wrote the MMRSA bill is introducing emergency legislation to remove the March 1st deadline from the bill. Governor Brown has indicated that he will sign the emergency legislation. And it is possible that recreational use will become legal in California after the 2016 vote. However, even if voters approve the 2016 initiative to make recreational use legal, municipalities will still have the power to regulate or even totally prohibit outdoor marijuana cultivation (but not indoor cultivation), processing, sales and deliveries (unless the delivery is just passing through the jurisdiction) as these exceptions are written into the proposition.

 

 

Two adults and one juvenile were arrested today after a mail carrier called Irvine Police Department and reported a possible package theft. The Irvine PD responded to the neighborhood and spotted the individuals in the vehicle described by the witness. After pulling the vehicle over, the individuals were positively identified and a search of the vehicle resulted in the discovery of multiple stolen packages and stolen credit cards. They are being charged with theft, conspiracy and contributing to the delinquency of a minor.

During the holiday season, I see an increase in this type of crime. The reason for this is two-fold. One very obvious reason is that many people now do much of their holiday shopping on line and have the packages delivered to their homes. If they are not there, the packages are left unattended on the front door step. This makes is extremely easy for an individual to walk up and take the package in a matter of seconds and be gone with it. Another reason is that during the holiday season, people become desperate. People who cannot afford to buy gifts feel the pressure and this type of crime is just too easy to pass up. However, they are not thinking about the consequences of being caught. Not only the legal consequences but the monetary costs involved with hiring an attorney and the fees and fines associated if convicted.

The two adults are being charged with theft, conspiracy and contributing to the delinquency of a minor. All three of these violations are “wobblers”, meaning they may be filed as either felonies or misdemeanors. When the District Attorney is deciding whether to file a theft charge as a misdemeanor or a felony, the value of the items taken will determine that. Regarding a conspiracy charge, the circumstances and the value of the theft will determine whether to file as a felony or a misdemeanor.

California law defines a conspiracy crime as two or more people conspiring to commit a crime. The facts of the case will determine whether the District Attorney files it as a felony or misdemeanor. If convicted for misdemeanor conspiracy, the penalties may include fines and probation. However, if convicted as a felony, depending upon the circumstances, the penalty could mean several years in prison.

In this situation where the three individuals were arrested for taking packages, without knowing any details of the arrest, there may be defenses for these individuals. Typical defenses might be mistaken identity. Maybe the mail carrier made a mistake when he positively identified them and/or their vehicle. Another important detail that needs to be looked at in this situation is whether or not the police had probable cause to search the vehicle.

An experienced criminal defense attorney will know what to look for when defending these types of charges. Reviewing the police report and the witness statements, looking for inconsistencies and holes in the report will help determine what type of defense these individuals may have. However, it the evidence is overwhelmingly against the defendant, negotiating the best outcome should becomes an attorney’s priority, with a focus on avoiding jail time.

Anyone who is facing serious charges such as these should immediately seek the advice and assistance of a good Orange County, CA, criminal defense attorney.

 

The California Attorney General is responsible for collecting and analyzing yearly crime data for the State of California. Guess what? Crime is down in California – way down! According to the Attorney General’s statistics for the most recent year studied (2014) crime has decreased in number and rate in almost every category. Some crimes have seen big rate decreases (per 100,000 population) from 2013 and when compared to earlier, the declines are even more pronounced. In fact, 2014’s violent crime rate is at its lowest since 1967!

If we compare the crime rates from 2009 to 2014, the decreases in some categories are dramatic. For example, the homicide rate has decreased 17 percent from 2009 to 2014, robbery has decreased in the same years by a whopping 26.8percent! In fact, for all the major violent crime categories (homicide, rape, robbery, and aggravated assault) and major property crime categories (burglary, motor vehicle theft, and larceny) the rates have decreased substantially. Compared to 2013, all crime rates contimued to decrease in 2014 except aggravated assault, which saw a 2.4 percent rate increase.

So what could account for this continuing decrease in crime in the state? Is it better policing, more criminals imprisoned, an aging population? There is no easy answer to why the crime rates are declining. And this is occurring not just in California, but across the country.

A study conducted by the Brennan Center for Justice at New York University School of Law examined 14 popular theories for the decreasing crime rates over the past two decades:

  • Increased incarceration
  • Increased number of police officers
  • The introduction of CompStat (statistical policing strategies)
  • Threat of the death penalty
  • Enactment of “right-to-carry” gun laws
  • Decreasing unemployment
  • Rising wages
  • Inflation
  • Increased consumer confidence
  • Aging population
  • Decreasing alcohol consumption
  • Decreasing crack use
  • Legalized abortion
  • Decreased lead in gasoline

The study concluded that none of these theories, even adding them all together, can explain the majority of the decrease. The study concluded that there is “a vast web of factors, often complex, often interacting, and some unexpected” that explain the decrease. One of the theories, the introduction of CompStat, proved to have a greater influence on the decrease in crime than the others, but the effect was still determined to be minimal (5 to 15 percent).

The reasons for the dramatic crime decrease may be puzzling, but the phenomenon is certainly welcome. Those of a certain age can remember when many cities were almost unlivable because crime was so prevalent. Even In U.S. cities known to be high crime cities, the rates have been on a downward trend. In the major California cities of Los Angeles, San Francisco, and San Diego, the rates of propety and violent crime are on a markedly downward tragetory since 1990.

Perhaps it is wishful thinking, but maybe we have become a more mature and peaceful society. Or maybe police technology has surpassed the criminal wit. Whatever the reason for the decrease in crime, let’s hope it is a trend that here to stay.

TV star Charlie Sheen recently revealed that he is HIV positive. Mr. Sheen’s lifestyle is no secret, for years the tabloids have chronicled his seemingly non-stop partying, his coterie of “goddesses” and his many sexual escapades. According to Mr. Sheen’s revelation, he has known he was HIV positive for at least four years. He claims that he informed all of his sexual partners that he was HIV positive, but at least several of Mr. Sheen’s alleged sexual partners have denied that Mr. Sheen informed them of his condition.

 

Could Mr. Sheen have violated California criminal law? Well, maybe. When specific conditions are met, California makes it a felony to expose another person to HIV by engaging in unprotected sexual intercourse. (Cal. Health and Safety Code §120291.) Mr. Sheen may have violated this statute if he knew he was HIV positive at the time he engaged in unprotected sex but did not disclose his condition to the other party. If, as some of Mr. Sheens sexual partners in the last four years are correct, he did not inform them of his HIV positive status prior to having unprotected sex with them.

 

However, that is not enough to make it a crime. The statute also requires that the Mr. Sheen not only had unprotected sex and failed to disclose the infection but that he had the specific intent to infect the other person with HIV. Specific intent is a legal construct that means not only did the person commit the criminal act but that he or she did so with the knowledge and desire to achieve the illegal act. Thus in order to find Mr. Sheen guilty of this felony, the State of California would need to prove that Mr. Sheen had the unprotected sex with the specific objective of infecting his partner or partners with the HIV virus. Completion of the crime does not require that the partner did, in fact, become infected.

 

As you can imagine, this would be a very difficult crime to prove. Since we can’t read minds, how can the prosecutor or a judge or jury know if someone specifically intended to infect another with HIV? Ultimately, specific intent crimes rely on circumstantial evidence.

 

A few hypothetical examples illustrate circumstantial evidence: A person, knowing he is HIV positive, has unprotected sex with several people. Later, a witness reports to the police that this HIV-positive individual bragged to the witness that he had unprotected sex because he was angry and wanted others to contract the virus. Or, in another example, the HIV-positive person, after having unprotected sex, got angry at the person he had the sex with and in a fit of anger said something like, “I infected you with HIV.” In the latter example, the statement does not indicate the intent to infect at the time of the unprotected sex, but it could be enough for the prosecution to pursue charges.

 

Barring any circumstantial evidence of intent, a person is not likely to be charged with felony exposure of another person to HIV. Indeed, such charges are rarely prosecuted in California. As for Mr. Sheen, without evidence that he intended to infect his sexual partners, he is unlikely to be charged with a felony.

 

Then again, Mr. Sheen could be charged with a misdemeanor simply for exposing his sexual partners to the HIV when he was already aware that he was infected. (Cal. Health and Safety Code §120290.) While not as serious a charge, this crime still carries a potential jail sentence of up to six months.