California Criminal Defense Lawyer Blog

The evidence is the heart of any criminal case. We usually think of evidence as evidence that supports (or proves) the allegation that the crime was committed. This is technically called “inculpatory evidence” as it tends to incriminate (or inculpate) the defendant. But what about evidence that tends to exonerate (or exculpate) the defendant? This evidence is called “exculpatory evidence” but it seems we hardly hear about this type of evidence.

In the seminal case, Brady v. Maryland, 373 U.S. 83 (1963), the United States Supreme Court held that in any criminal case, the prosecution has a constitutional duty to reveal to the defense any evidence it has that might show the defendant is innocent of the crime charged or did not commit the crime in the manner charged. This is the defendant’s due process right. This is commonly referred to as Brady evidence or a Brady disclosure and it applies to all California criminal cases.

Brady evidence can be physical evidence, witness statements, video footage, recordings, or any evidence that has a “reasonable probability” of establishing that the defendant did not commit the crime or did not commit the crime to the level charged (for sentencing mitigation purposes). A good example might be evidence that a credible witness to the alleged crime comes forth and states that he saw the police plant evidence. If this were a true statement (and it certainly happens, as the recent incidents in Baltimore have exposed), it is exculpatory and the prosecution must reveal it. But the police would certainly try to cover this statement up, sometimes even with the help of the prosecutor. Hopefully this doesn’t happen often, but it is unfortunate that the prosecution and the police sometimes do suppress exculpatory evidence in furtherance of their own prosecutorial agenda. Orange County had its own Brady evidence scandal a few years ago.

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.

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.

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.

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.