A turkey? A person who has had a bit too much to drink? A spinning top?

Well, it might be all those things, but in California law, a “wobbler” refers to an offense that may be charged and punished as a felony or a misdemeanor. There are literally hundreds of wobbler offenses on the California law books. Although the Penal (criminal) Code lists the most wobblers, these offenses are also found in other codes, such as the Business and Professions Code, the Health and Safety Code, the Professions Code, the Vehicle Code, the Commercial Code, and the Family Law Code. A wobbler provides for punishment by incarceration in state prison (a felony) or in county jail (a misdemeanor).

For example, a charge of assault with a deadly weapon other than a firearm under Penal Code section 245 is punishable by either two, three, or four years imprisonment in state prison or incarceration in county jail for six months to one year. It’s important to keep in mind that even though the punishment calls for incarceration, that does not mean that if the defendant is convicted he or she will go to jail or prison. Even if convicted, and depending on the circumstances of the crime, the court will often “stay” or “suspend imposition” of a sentence and grant the defendant probation or some other alternative sentence.

While every defendant has a constitutional right to a jury of his or her peers, criminal charges rarely go to trial. In fact, around 97% of criminal cases are resolved by a plea bargain. A plea bargain is when the defendant pleads guilty or nolo contendere (no contest) to criminal charges. Often the process involves the prosecutor agreeing to dismiss some of the charges in exchange for a plea to the remaining charges. Sometimes, the plea will include an offer of a low-end sentence or probation in exchange for the plea. These are called conditional pleas. An open or unconditional plea is one where the defendant pleads guilty with no promises made to him or her for the plea.

The judge has very little to do with the conditional plea process and, in fact, in California, the judge is not allowed to engage in any plea bargaining. However, at the time the plea is entered by the defendant in court, the judge can reject the plea agreement but the judge cannot change the terms of the agreement. Open pleas can be made to the court and the judge can, in that instance, indicate the sentence he or she will levy against the defendant. If that sentence is not imposed, the defendant can withdraw the plea.

Following the acceptance by the judge of the defendant’s plea of guilty or no contest, whether after a plea bargain with the prosecutor or an open plea, the court will enter judgment, that is, the judge will enter the conviction pursuant to the plea.

A defendant was charged with three separate armed robberies. The three victims all identified the defendant in a “six-pack” photographic lineup. In closing arguments at the jury trial, the defense attorney questioned the correctness of the identifications. The prosecution rebutted, stating that there were three victims who identified the defendant separately at different times. Referencing what the prosecutor called a “fancy expression” known as Occam’s Razor, the prosecutor argued that the reasonable doubt standard requires that the obvious answer is the best answer.

Occam’s Razor is a term that that refers to a problem-solving principle. Simply put, the principle states that when faced with competing hypotheses, the simpler one is the best one. The more assumptions that must be made to explain a hypothesis, the less likely that hypothesis is the correct one.

In the case of the armed robber, the defense argued that the victims misidentified the defendant in the photographic lineups. But implicit in the prosecutor’s statement was that it would require more assumptions to accept that conclusion than it would to conclude that each of the victims, by separately identifying the same person (the defendant) in the photographic lineup, correctly identified the defendant.

2018 saw major change on California’s statute books, many within the criminal law arena. Below are some of the changes in law that impact those who may be facing criminal charges and those who have already been convicted.

JOB APPLICANTS WITH CRIMINAL CONVICTIONS

You may have heard the term “Ban the Box.” This term refers to new legislation in California that now prohibits an employer with five or more employees from requiring a job applicant to disclose past criminal convictions during the application process.  Practically speaking, the new law prohibits most employers from including “the box” on an employment application that asks if the applicant has ever been convicted of a crime. The law now also prohibits the employer from asking the applicant about his or her criminal history during the interviewing process. It is only after an employer makes a conditional offer of employment that the employer can ask the potential employee about previous criminal convictions. If the employer then rescinds the conditional offer, the employer must inform the prospective employee in writing with an explanation of why the offer is being rescinded. The law allows the applicant to dispute the evidence provided by the employer in the notice and the employer must consider the applicants submission.

This is a true crime story with a twist:

Ascension Alverez-Tejeda and his girlfriend were transporting drugs in their vehicle. They stopped at a traffic light and when the light turned green, the car in front of them began to move through the light then stalled. Mr. Alverez-Tejeda stopped in enough time to avoid rear-ending the stalled car but the truck behind him did not. The truck tapped the bumper of Mr. Alverez-Tejeda’s vehicle. Two police officers responded, and the truck driver ended up getting arrested for driving drunk. Since there was no damage to Mr. Alverez-Tejeda’s vehicle, he asked the responding officers if he could leave. He was told that the officers needed a statement from him and he was directed to move to a nearby parking lot.

Mr. Alverez-Tejeda and his girlfriend were then told by the officers to give their statements inside the police cruiser. While they sat in the police car, Mr. Alverez-Tejeda’s vehicle was stolen. The police took off after the thief but returned to tell Mr. Alverez-Tejeda that the thief got away. What a stroke of bad luck for these would-be drug transporters. But it got worse: When the police recovered the stolen car, they obtained a search warrant and the drugs were found in the vehicle. Mr. Alverez-Tejeda was arrested and charged with transporting cocaine and methamphetamine.

Last month at a U.S. District Court in Maryland, a judge stepped down from his bench to shake the hands of two defendants and tell them he was sorry. The two defendants had, at different times, pleaded guilty to drug charges years ago in that same judge’s court. The convictions had just been vacated by the judge. One of the men, Umar Burley, pleaded guilty to manslaughter and heroin possession. He had spent seven years of his 15-year sentence when he was released. The other man pleaded guilty to drug charges and had served four years when he was released. So why did the judge shake these men’s’ hands and apologize? Because they were both innocent.

Last spring, Baltimore prosecutors charged at least eight officers, who were members of a special police task force, with gross misconduct, including planting drugs on innocent people. These officers were as crooked as it gets. Suspiciously, the Baltimore detective who was investigating this rouge police squad was fatally shot a day before he was scheduled to testify before a federal grand jury.

The two recently released men are expected to be only the first of many who will be released. The district judge stated this is not over yet. Baltimore prosecutors estimate that there are at least 2,000 cases that involve arrests by this crooked task force.

While California prepares to license its first recreational cannabis shops next month, there are hundreds of thousands who have a marijuana-related criminal conviction for conduct that is now legal or less severe under the new laws. Some of these individuals are still incarcerated and some are on probation, but the majority have served their sentence but have a criminal record reflecting the conviction, which often places barriers to employment, professional licensing, firearm purchases, and even traveling to Canada.

Along with the legalization of recreation marijuana, Proposition 64 also included provisions for the reduction of criminal penalties for former marijuana convictions and for resentencing or dismissal of certain prior convictions for the sale of marijuana. Furthermore, certain convictions for conduct that is now legal under Prop 64 (generally, the personal use or possession of recreational marijuana for personal use) can now be dismissed and the record sealed. These remedies are not automatically granted. An individual seeking relief under these new provisions must petition the court for the relief and the court.

For persons who are currently facing sentencing on a marijuana charge or who are serving a sentence, whether in jail or prison, or on probation, the process requires the filing of a petition with the court which can be denied by the court under certain conditions. Eligibility for this petition is not available for all marijuana-related offenses and the petition requirements can be confusing, especially if the matter requires resentencing or custody credits. But the petition is well-worth filing. If successful, it can mean release from jail, prison, or probation and/or a significant reduction in a person’s sentence. It is advisable that an individual seeking relief under these circumstances consult with a knowledgeable criminal defense attorney.

LEGAL MARIJUANA COMES WITH MANY RULES AND NEW TAXES

The pot shops will soon open and even though recreational marijuana is legal now, there are still plenty of reasons a black market in marijuana sales will not be going away with the opening of your local cannabis shop. To begin with, the laws regulating the legal cannabis shops are onerous. In fact, it might be a challenge to even understand all the regulations in the 276-page Bureau of Cannabis Control regulations book. And that’s not all: cannabis shops also have to abide by regulations promulgated by the California Department of Food and Agriculture and the Department of Public Health.

The cannabis products that do end up for sale must be tested and tracked under strict rules including limits on the amount of THC allowed in edibles. Furthermore, the fees and licensing requirements are confusing and often costly.

There are kangaroo courts….and then there are donkey jails. While kangaroo courts don’t actually have kangaroos sitting in court, donkey jails do indeed have donkeys cooling their hoofs in jail, at least in one town in India. In the Northern Indian town of Orai, eight donkeys found a tasty meal that just happened to be expensive saplings outside of the local jail complex. When the donkeys were caught red-hoofed chowing down on the pricey plants, the local police constable took it into his own hands. The furry criminals were arrested and herded off to jail. Hard to believe, but apparently this is true; even the New York Times reported the story. And there is some “cute animal” video footage of the arrest; it’s a nice break from cat videos.

The donkeys’ owner was in a frantic search for his animals. When he found out they were in the big house, he begged the police to set them free. But apparently the poor owner could not afford the bail. So, he sought justice through his local politician. Reportedly the bail was paid by the politician and the donkeys were released. The donkeys spent a total of four days in jail, there is no report as to whether they complained about the jailhouse food.

Now lest you think this Indian town is just a bit foolish, the jail superintendent explained that there is not really a donkey jail in Orai and donkeys can’t really be arrested. The donkeys were taken into “custody” to teach their owner a lesson. The owner had been warned repeatedly about his animals roaming in the town but had done nothing about it. Still, you have to admit, this story makes great copy and is good for a chuckle.

Before he resigned as Health and Human Services Secretary, Tom Price created a bit of an uproar over comments about medication-assisted treatment for opioid addiction. It was reported that former Secretary Price stated that providing drugs that reduce craving for opioids is just replacing one opioid for another. To a point, that is true. But it is not that simple. Secretary Price’s comments were somewhat more nuanced but the news reports that Secretary Price suggested that medication-based treatment for opioid addiction was not an effective treatment prompted 600 medical experts and academics to pen a letter to Secretary Price asking him to reconsider.

Secretary Price is no longer head of Health and Human Services but the issue of medication-assisted treatment as one option to address this country’s opioid crisis. The medication treatments most commonly used to treat opioid addiction, buprenorphine, naltrexone, and methadone, are called “opioid agonists” or “partial agonists.” These drugs activate receptors in the brain, creating a high similar to what the addict experiences when he or she takes other opioids but the drugs do not have the same effect of physiological dependence, nor do they make the user feel euphoric.

While the treatment drugs do activate opioid receptors, they do so less strongly and they relieve drug cravings and withdrawal symptoms. It is true that with medication-assisted treatment, the addict may never be free of drugs but the drug they are taking allows them to function normally, without the causing the user to be a highly addicted individual ever searching for a stronger fix. Furthermore, the treatment drugs do not render the user unable to function normally. By substituting a medication-based treatment for an opioid addiction, the former addict has the opportunity to become a contributing member of society rather than a strung-out addict looking for the next high, possibly stealing from others to get the money to feed his or her addiction.