California Criminal Defense Lawyer Blog

Perhaps you have heard of the “Twinkie Defense.” The term derives from the 1979 trial of Dan White, a former San Francisco Supervisor who, following a dispute with San Francisco Mayor George Moscone and San Francisco Supervisor Harvey Milk, shot and killed both men at the San Francisco City Hall. Mr. White’s defense was that he suffered from “diminished capacity” due to his depression. His defense attorneys argued that among Mr. White’s symptoms of depression was his consumption of unhealthy sugary foods. The press invented the “Twinkie Defense” even though Twinkies were never mentioned at trial.

Mr. White, who was charged with first degree murder, was convicted of the lesser offense of voluntary manslaughter. He was not convicted of murder due to the successful argument that Mr. White suffered from depression and thus acted with diminished capacity. The defense did not argue that Mr. White’s mental state was impaired because he ate Twinkies, as urban legend tells the story; rather the ultimately successful defense was that Mr. White’s state of mind due to his depression negated premeditation, which was a required element to convict on first degree murder. Diminished capacity is something less than insanity.

But that fake news story about the Twinkie Defense took on a life of its own.

Last week I wrote about computer-assisted bail decisions. There is something even bigger afoot: a bill before the California Legislature—California Money Bail Reform Act of 2017—would end bail altogether for a wide array of charged offenses. Even when a judge grants bail, the offender often can’t pay it. This results in a huge number of individuals who are incarcerated even though they have not been convicted of any crime. In effect, they are incarcerated because they are poor—or at least, too poor to pay the bail bill. The California Money Bail Reform Act of 2017 would end excessive bail amounts for most misdemeanors and some felonies.

Consider that the median bail amount ordered in California is $50,000. Even with the services of a bail bondsman, the defendant, or his or her family and friends, must come up with $5,000 to make bail. This is no small amount, especially if you are poor. And it means that a defendant unable to make bail will probably lose his or her job, with the cascading consequences of a job loss. Seems as though the bail system is pretty unfair to poor people and that is one of the primary reasons for the introduction of this bill. And if you think this affects only a small number of people, you would be wrong. According to the Public Policy Institute of California, over 60 percent of inmates incarcerated in county jails across the state are there awaiting trial or sentencing, that translates into 46,000 incarcerated individuals on any given day. Most are there because they couldn’t afford bail. Not only does this affect the individual who couldn’t post bail, but his or her family too.

In reality what this creates is a two-tiered system. One for the reasonably well-off and one for the not so well-off. If a person accused of a crime—even a very serious crime—has enough money to make bail, he or she will usually be granted freedom on bail. If a person is too poor to make bail—even for a minor crime such as a misdemeanor—he or she will lose the freedom to return home to family and work. In both cases, the alleged offender is innocent until proven guilty but one is free the other is a prisoner. What justice is there when it takes money to buy your freedom?

On November 8, 2016, California voters passed Proposition 57, The Public Safety and Rehabilitation Act of 201, by an overwhelming majority of 64%. This proposition contained two key provisions:

1) It makes certain non-violent felons eligible for immediate parole and

2) It requires a court hearing before a juvenile can be tried in adult court.

COMPUTER-ASSISTED BAIL HEARINGS

When a person is arrested and held in custody, his or her first appearance before a judge will be in what is called an arraignment.   Under California law, the defendant must be afforded an arraignment within 48 hours (not to include weekends or holidays). At the arraignment, the judge will determine whether the defendant should be released on bail and, if so, the judge will set the bail amount. Some defendants are released on their own recognizance, usually when the alleged offense is not serious. Most defendants are allowed to post bail at an amount set by the court, which depending on the crime or crimes charged may be in the millions of dollars but is often in the tens of thousands of dollars (for which the defendant typically uses a bail bondsman and pays a percentage of the bail amount). For some defendants, the courts will deny bail. When the court denies bail, the defendant who is legally innocent (innocent until proven guilty) will likely be incarcerated until trial. It happens sometimes that a defendant denied bail spends months, even years, in jail only to be found not guilty of the crime by a jury. On other occasions, it goes the other way: the judge releases a defendant on bail who then skips bail or commits another crime while released.

In California, all alleged offenses, including murder, are eligible for bail (except murder with special circumstances). It is left to the judge’s discretion whether to grant bail, usually after hearing brief arguments from both the defense and the prosecution. But a judge, as experienced as he or she may be in making this call, is a human being with human biases and prone to human error.

Legislature Enacts Post-Conviction Relief to Remove Potential Immigration Consequences After a Penal Code Section 1000 Plea

Last week I wrote about the immigration consequences that may attach to an “expunged” conviction. This week I offer better news. The California Legislature has addressed the immigration consequences that attach to certain convictions and will offer relief to some noncitizens who may be facing deportation due to a previous conviction on a deportable offense.

The first of these Legislative remedies concerns those who have pleaded guilty under a deferred entry of judgment as set forth in Penal Code section 1000 et seq. When a person is arrested on a first-time non-violent drug offense in California, he or she is often given the opportunity under this section to enter a plea of guilty, with that plea being “suspended” by the court and ultimately dismissed by the court if the defendant successfully completes a drug rehabilitation program. However, as with the other California statutes that provide for dismissal of a prior conviction, the federal government considers a deferred entry of judgment and dismissal under Penal Code 1000 rehabilitative relief only and it is, as far as the federal government is concerned, still a conviction with the same liabilities for a noncitizen for immigration purposes.

Many people who have been convicted on a misdemeanor charge or certain felonies for which they were not sentenced to prison can, after certain conditions are met, apply to the court for what is commonly called an “expungement” of the conviction. This relief is available under several statutory schemes, the most common being Penal Code section 1203.4. Referring to this relief by the term “expungement” is a misnomer because the conviction is not entirely expunged. But since everyone calls it an expungement, I will use that term here also.

When a defendant who has completed probation, or is otherwise discharged from probation, he or she may apply to the court to set aside the verdict of guilty and order the conviction dismissed. I discuss how this process is accomplished here. If the court so orders, the defendant is relieved of the penalties and disabilities resulting from the conviction and no longer carries the many burdens of having a criminal conviction on his or her record. For example, the former defendant no longer has to report the conviction on a job application (with some exceptions) and will reflect favorably when applying for a professional license.

However, many people are surprised to learn that the record of the offense still appears on the person’s Department of Justice criminal history record, although it now shows as dismissed. Furthermore, the expunged conviction still imposes some burdens upon the former defendant. For example, the offense must be reported if the former defendant is applying for certain jobs or wants to enter a career, which require licensing or are public service jobs, and the expungement will not relieve the former defendant of any firearm possession restrictions that were part of the conviction.