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Articles Posted in Criminal

A bench warrant is a warrant for a person’s arrest issued by a judge (the “bench”). Most often these warrants are issued because a person failed to appear in court for an arraignment or other matter or because he or she violated a court order.

It is not uncommon for individuals to be unaware that a bench warrant has been issued. For example, a person who is arrested and released on promise to appear on arraignment, but who does not appear on the scheduled date will, in all probability, have a bench warrant issued for his or her arrest. That individual may not have appeared because he or she was not properly advised of the arraignment date, the arraignment date was changed but the arrestee was not informed, or the arrestee is unaware that charges were even filed subsequent to the arrest.

Example: Joan was arrested in Costa Mesa for misdemeanor trespassing. She was cited and released but was not advised of an arraignment date. Nine months after her arrest, the prosecutor filed a misdemeanor complaint against her. The prosecutor sent a letter to the address Joan provided upon her arrest advising her of the charges and arraignment date. But Joan had moved in the interim and the letter was never forwarded. She had no idea there were charges against her and she just presumed the case was dropped. When she didn’t show up in court, the judge issued a bench warrant for her arrest. Many months later, she was stopped on a speeding violation. The officer ran a records check and learned that she had a warrant for her arrest. She was shocked when she was arrested.

A person convicted by a judge or jury of a misdemeanor or a felony has a right to appeal that conviction. However, it is not enough to be unhappy with the verdict or think the trial was unfair, there are specific grounds upon which the appeal may be made.

Appeals must be grounded on a legal error made during trial. Common examples include:

  • The prosecution withheld exculpatory evidence.

I think we can all agree that 2020 was a bad year all around. Drug abuse and overdose was no exception.  In 2020, the number of drug overdose deaths increased 30% to an estimated 93,000 people, the largest number of annual overdose deaths ever recorded in this county. For comparison, when I first started writing on this blog about the opioid crisis five years ago (2016), there were an estimated 63,000 drug overdose deaths. Last year there were an estimated 72,000 deaths. This is a tragedy that affects all ages but more so the young – over 60% of these overdose deaths occurred in the under 45 year old age groups.

Opioids, particularly Fentanyl, represent close to 75% of the fatal drug overdoses, but psychostimulants such as methamphetamines and prescription pain drugs have also contributed to the increased fatalities. Most of the deaths are believed to be caused by contaminated drugs.

Some observers point to the Covid-19 pandemic to explain this alarming increase. Job loses, social isolation, and occasionally the trauma of friends or family contracting COVID-19 may have led to more drug abuse and increased overdose fatalities. Indeed, the statistics indicate that overdose deaths really started taking off in March 2020, strongly suggesting that the pandemic helped drive the increase. The crisis was further compounded by the pandemic because people who were in recovery, getting treatment, or wanted treatment were often unable to get those services due to the lockdowns and other COVID-19 restrictions. Losing the face-to-face interaction that is often crucial to recovery worsened the struggle for many.

A criminal trial is all about the evidence. It is the backbone of the prosecution’s case. Evidence of a crime is most often circumstantial. It is unusual for the police and prosecutors to have direct evidence of the crime, especially in those cases that go to trial.

Direct evidence is evidence that is based on facts known to be true to the victim or police. For example, if the police or another witness personally observe the crime in progress or the victim personally knew the person who committed the crime against him or her, that would be direct evidence. If the witness testimony is credible, prosecutors can often secure a conviction based solely on direct evidence although more often there is some circumstantial evidence that supports the direct evidence. Sometimes though, even direct evidence doesn’t stand up. For example, say a defendant is accused of assault by another person. A good criminal defense attorney will do a due diligence investigation to make sure the accuser is telling the truth. Perhaps in that investigation, the attorney learns that the accuser held a grudge against the defendant and there is reasonable suspicion that the allegation of assault was fabricated in order to harm the defendant. Even direct evidence must be reliable and offer facts that prove beyond a reasonable doubt that the crime was committed.

Circumstantial evidence is indirect evidence but evidence that can be used to infer the commission of a crime. While not as reliable as direct evidence, circumstantial evidence is conferred the same weight as direct evidence in a court of law. However, because circumstantial evidence is usually weaker than direct evidence, a skilled criminal defense attorney may be able to poke holes in the evidence. For example, if Joe Schmo testifies that he saw someone run from the scene of a robbery who matched the defendant’s description, a good defense attorney will question the reliability of Mr. Schmo’s testimony. Perhaps it turns out that Mr. Schmo’s observation occurred in the dark of night in an area without streetlights. Or maybe Mr. Schmo has poor vision and was not wearing his glasses. Circumstantial evidence must be carefully scrutinized for reliability and reasonability.

It has been almost a year now since restaurants in California have been forced to close all or part of their dining facilities. For many small restauranteurs, the take-out business has kept them afloat…. but barely. Most Californians are sympathetic to the plight of the small restauranteur and many of us make a special effort to give our business to these small operators. But some have found a way to take advantage of the situation. I’m calling it the “Covid dine and dash.”

The Los Angeles Times recently featured several small restaurants that have been victims of a take-out scam. The scams are so pervasive that one well-known Korean restaurant has been forced out of business. The scams take various forms, but they all involve calling in a to-go order and charging the order over the phone on a credit card. Sometimes the credit card is fraudulent, but it appears that the more frequent scam is that someone will call in a large order and after it is picked up or delivered, the customer will call in to their credit card company to dispute the charge.

The customer will claim they never got the order, the order received was incomplete or incorrect, or claim someone other than the cardholder placed the order. The credit card companies will side with the consumer and place a hold on the charge. It is then up to the restauranteur to prove the charge was legit. This can be difficult for the restauranteur to prove. Restauranteurs who have been victimized over and over by some variation of this scam have now had to take extra measures such as photographing every order, requiring customers to pay in person and show their identification, and other safeguards.

You may not know that your vehicle records and stores a large assortment of time stamped data that can range from the opening and closing of the vehicle’s doors, the speed at which the vehicle was driving at any given date and time, voice commands stored in the onboard bluetooth or hands-free systems, and a lot more. Unless you are driving a clunker, chances are good your vehicle has this “black box” embedded inside.  Manufacturers started installing these vehicle blackboxes in the mid-1990 and the technology is now quite advanced.  If you have ever been in a newer model Tesla, you have seen the future of this technology. Everything that controls the Tesla is done through your smart phone, from opening doors, to starting up the car and the control panel that drives and navigates the car.  This technology has become so sophisticated that the police are able to solve crimes using the digital evidence stored in by our cars.

The technology has helped the police solve many crimes, including murder. For example, in Michigan, the police were able to solve a two-year old murder after the victim’s stolen vehicle was found. Time-stamped recordings of voice commands around the time the victim went missing were recovered from the 2016 Chevy truck. That led police to identify the voice, which was not the victim’s, and eventually led to the arrest of the murderer.

In another case here in California, a man was driving his Tesla when he ran straight into a car that was pulling out of a driveway. The driver who pulled out of the driveway died from the impact. The Tesla driver told the police he was driving 55 mph; the speed limit was 45 mph. While the other car may have been violating the vehicle code by pulling out under unsafe conditions, the Tesla driver was still on the hook because he was speeding. He was facing a possible misdemeanor manslaughter charge. But then the police got a search warrant to pull the data from the Tesla. They were able to establish that the Tesla driver wasn’t going 55 mph, but 78 mph!  Now the Tesla driver is facing a felony manslaughter charge, a very serious charge.

The California Legislature had a busy year in 2020 as it concerns criminal laws. Several significant changes in criminal law will go into effect at the beginning of 2021. I will discuss some of those changes in future blogs but for this post, I want to focus on AB-3234.

AB-3234 was signed into law and is codified in the Penal Code at section 1001.95. Effective January 1, 2021, it portends sweeping changes in the way misdemeanors are prosecuted in this state…or maybe a better way of stating it is “not prosecuted.” For all but a few misdemeanor crimes, this new law takes the prosecution of misdemeanors out of the prosecutor’s domain and allows the court to order a diversion, rather than prosecute the crime. For almost all misdemeanor crimes, the defendant can request the court order a diversion, which if granted, allows the defendant to avoid any prosecution at all. In fact, if the defendant successfully completes the terms and conditions of the diversion, the crime is as if it never happened because the arrest for the crime will be deemed to have never occurred.

The misdemeanor crimes that will not qualify for diversion are few. They are Penal Code section 290 crimes (crimes that require registration as a sex offender), sexual assault (Penal Code section 273.5), domestic violence (Penal Code section 243(e)), and stalking (Penal Code section 646.9). This is a rather odd list when you consider that other misdemeanors such as elder and child abuse, DUI, misdemeanor assault (other than domestic violence), just to name a few, are not on the list of excluded misdemeanors. (There is a push to amend the law to include DUI as one of the excluded offenses, but for now, it is eligible for diversion under the new law.)

The California Department of Justice makes crime statistics available to the public that can be an interesting read for a legal nerd such as myself. Even if you aren’t a legal nerd, I think you might find the data noteworthy. In the “Crimes & Clearances” statistics, we can see the raw numbers of various crimes committed by state and by each individual county and even breakdowns by city and precinct.

Taking a look at Orange County only for the years 2010 through 2019, one crime stands out: rape.  While virtually every other category of crime, from homicide to robbery, to arson and other crimes went down or remained steady over the ten year period, rape has shown steady and notable increases (from the high 300’s to the low 400’s reported rape crimes in 2010-2013, suddenly jumping to 650 in 2014 and since then registering in the high 700’s to the low 900’s). This could reflect an increase in reported rapes, or it could reflect a real increase in rape.  The same pattern held true for the entire state.

While this news is distressing, most other crimes have held steady or declined slightly. On the other side of the rape statistics is arson. Arson crimes decreased substantially between 2010-2019. Like rape, there could be alternative explanations. For example, more robust wildfire seasons where fires are often started by individuals who are later charged with arson could account for the differences.

When police officers encounter an individual, whether as a result of a traffic stop, arrest for suspicion of a crime, even just a detention based on a suspicion, or other encounters, the officer may complete what is called a  field interview card on the individual. These cards are most often used by the officer when the individual is suspected of being a member of, or affiliated with, a criminal street gang.  If the police officer suspects gang affiliation or membership, the individual’s name, demographics, visible tattoos, suspected gang insignia or clothing, and so on is entered on the  field interview card, which eventually ends up in the statewide CalGang database.

There have been many documented abuses of this practice. Among the most egregious abuse of this practice is the entry of false information about the individual that results in the individual being added to the CalGang database. Having your name on this database is not inconsequential. When an individual’s name is entered into this database, that person’s name shows up at every subsequent law enforcement encounter as a suspected gang member. This can have consequences even on a minor traffic stop. Individuals on this database are more likely to be a suspected by the officer and are often suspected in criminal investigations.

Recently at least 24 Los Angeles Police Department officers have been identified by LAPD for suspicion of falsifying information on field interview cards. Six of those officers now face criminal charges, the others have been assigned to desk duty or put on leave. They may yet be charged. These officers allegedly filled out field information cards identifying individuals as admitting gang membership when in fact those individuals made no such admission, and some outright denied it. The falsifications were discovered when the police bodycams were viewed relative to these particular contacts and field identification cards. An officer’s false report about an individual is a violation of that person’s due process rights and as I previously blogged about, it can haunt a person for years as a suspected gang member, when in fact there was no evidence to support the suspicion.

In California, there are statutory procedures that offer criminal record relief, most commonly through one of the following:

  • Petition for Dismissal (Expungement): A person who was previously convicted of an qualifying misdemeanor or felony, and who has successfully completed their sentence, is usually eligible to petition the court to dismiss the conviction.
  • Certificate of Detention: When a person is arrested but where charges were never filed as a result of that arrest, the arrestee may petition the arresting agency for a certificate of detention, which in effect, erases the entire arrest record and turns it into a investigatory detention.