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PENAL CODE SECTION 1170 MAY OFFER RELIEF TO THOSE JUVENILES CONVICTED TO LIFE WITHOUT PAROLE

I previously discussed the 2012 United States Supreme Court case, Miller v. Alabama, 567 U.S. ___ , wherein the Supreme Court held that mandatory sentencing laws carrying life without parole were unconstitutional for juvenile offenders convicted of committing murder and the subsequent Supreme Court case earlier this year, Montgomery v. Louisiana, making the decision in Miller v. Alabama retroactive. In the same year that the Supreme Court published Miller v. Alabama, the California Legislature enacted a new law in the Penal Code under section 1170, which provides for a petition process to defendants who were under the age of 18 when they committed an offense for which they were sentenced to life without parole. Under this statute, juvenile defendants so sentenced can, after 15 years of their term, petition the sentencing court to resentence the offender.

Now this is law does not fall under the equation outlined in Miller v. Alabama because it does not concern mandatory sentencing but it does address the same reasoning for the Supreme Court’s decision. In Miller v. Alabama, the Supreme Court recognized the differences between the teenage brain and the adult brain. The majority opinion in the Miller v. Alabama decision recognized the “hallmark features” of the teenager’s conduct, including “immaturity, impetuosity, and failure to appreciate risks and consequences.”

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On a recent afternoon, a Texas grandmother discovered that her two granddaughters, aged 12 and 5, were missing from her home. Her car was missing too. Imaging the worse—that her granddaughters have been kidnapped from her home and forcibly taken in her car by the kidnapper—she called 911 to report the incident

Fortunately for Grandma, she had OnStar installed in her car and the police were able to quickly track the location of her car. The police caught up with the car and a chase ensued. The police dash cam videotape of the chase looks like a police chase out of an action thriller. The driver of Grandma’s car was running red lights, sideswiping vehicles while weaving in and out of traffic, and going at speeds of up to 118 mph. The chase lasted about 40 minutes along Highway 105 in the outlying suburban area of Houston right during rush hour. At one point during the chase Grandma’s car was heading right into oncoming traffic.

Ultimately police were able to have the OnStar center shut off the car remotely. The chase ended— almost miraculously without any injuries. Inside Grandma’s car sat her 12 year old granddaughter at the steering wheel with her 5 year old granddaughter in the passenger seat. The frightened 5 year old jumped straight into an officer’s arms; the 12 year old was arrested.

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SISTER ACCUSED OF MURDERING HER TWIN WHEN SHE DRIVES BOTH OF THEM OFF A CLIFF

A woman was driving her vehicle in Maui with her twin sister sitting in the passenger seat. Witnesses said they observed the two sisters arguing in the car while the car was stopped and that the sister in the passenger seat was seen pulling the driver’s hair. Another witness described the driver as being in a rage before the vehicle took off for a sharp left into a rock wall and then plunging 200 feet over a cliff. The passenger died. The driver was charged with the second-degree murder of her sister.

The prosecutor alleged that the driver intentionally caused the death of her sister. In Hawaii second-degree murder can be charged if a person intentionally or knowingly causes the death of another person. At first glance, you might ask: How could the driver know that the accident would kill her sister, and perhaps more to point, kill her sister but not her? Maybe the driver intended it to be a murder/suicide. And you might also wonder how the prosecution could prove that the driver intended to kill her sister. That witnesses saw the two in a heated argument in the vehicle plus evidence that when the driver went off the cliff, she did not hit her brakes, was not enough for the judge. At the preliminary hearing the judge dismissed the murder charge after finding that there was no probable cause to support the charge. The judge determined that the prosecution lacked sufficient evidence to support the allegation that the driver intentionally caused her sister’s death.

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YOUR PET CAN SEND YOU TO PRISON

You could be charged for a crime your animal “commits.” Okay, animals can’t commit crimes but this is serious stuff. If your dog attacks a person or worse yet, kills someone, you can be facing some very serious criminal charges.

But it needn’t be your dog or even an aggressive act by an animal you own. One Vermont man is being charged with negligent involuntary manslaughter when his roaming bull was hit by a vehicle, killing the driver and the bull. The bull’s owner faces a sentence of up to 15 years in prison if he is convicted. The significant fact is the bull owner’s negligence. It is alleged that he did not properly contain the animal and this wasn’t the first time the bull had been seen wandering off the property; the bull’s owner had been cited five times for allowing his animals to wander off the pasture. In fact, it was reported that minutes before the fatal accident, another driver had warned the bull’s owner that the bull was in the road.

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“OPERATION SPINAL CAP”

Many people think of crimes as acts of violence that causes harm to others, but there is probably just as much harm done by white-collar criminals—and sometimes these criminals are even wearing a white coat. Consider the scheme involving numerous doctors, hospital administrators (including a hospital CEO and CFO), chiropractors, and other healthcare professionals at Long Beach Pacific Hospital.

So far, at least nine healthcare workers and administrators have pleaded guilty to charges related to this healthcare scheme that ran into the hundreds of millions of dollars wherein doctors and other health professionals were paid illegal kickbacks to refer patients to Pacific Hospital in Long Beach. Even ex- state Senator Ron Calderon is implicated by the former CEO of Pacific Hospital, Michael Drobot Sr., an Orange County resident, who told authorities that he paid bribes to the senator while he was still in office to support legislation that would have directly affected the scheme.

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Police Chase Suspect Into Backyard Hot Tub

A 29-year-old Anaheim man was arrested after Placentia police chased him into an Anaheim neighborhood and then discovered him hiding in a hot tub in the backyard of a residence.

The incident began around 5:00 a.m. when police attempted to pull over an individual in a Mustang. However, the driver ignored the officers’ instructions to pull over. At some point, a passenger in the Mustang jumped out and was detained by the officers, as the Mustang continued driving southbound on Kramer Boulevard and onto the westbound 91 freeway.

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THE FIRST RULE TO FOLLOW AFTER AN ARREST: REMAIN SILENT EXCEPT TO REQUEST AN ATTORNEY

There is a scene in the Showtime series “Billions” where one of the characters is arrested by the F.B.I. for financial fraud. As he is read his Miranda rights and led away in handcuffs, he repeats only one word: “Lawyer, Lawyer, Lawyer,” Now I don’t say this just because I am a criminal defense attorney, but this scene got it right. When you are arrested, the cops must immediately “read you your rights,” which is to say, you must be informed that you have the right to remain silent, that anything you say may be used against you in a court of law, and that you have the right to an attorney. Let me emphasize something: anything you say will in all probability be used against you in a court of law even if the police later suggest during an interrogation that it won’t. All too often after an arrest the cops will use well-honed tactics to get an arrestee to talk. Your best advice is to follow the character’s action in Billions, request an attorney and say nothing else.

Under the law, once an arrestee invokes the right to remain silent and requests an attorney, the police are supposed to cease their questioning. Any response or statement made by the arrestee to further police questioning is evidence that is violation of the law and can be suppressed (i.e., not admitted in evidence). But in reality, what often happens is the police will manage to strike up a conversation with the arrestee and the arrestee will take the bait and engage in conversation with the police. Even if an arrestee says something like “I ain’t talkin’” and indeed remains silent, but then later responds—even in a limited way— to police questioning, it may be considered a waiver of the right to remain silent. In short, an arrestee must affirmatively and clearly state that he or she wishes to remain silent and moreover, do just that: Remain silent (with the exception of requesting an attorney).

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THE TERRY STOP – “STOP AND FRISK” DETENTION

You’ve seen it in the movies and on TV shows: The police approach a person on the street or tell them to get out of a vehicle after a traffic stop and command the person to submit to a frisk. In my previous post, I discussed the lawfulness of police detentions so you might wonder what factors must be present for an officer to lawfully conduct what is commonly called a “Stop and Frisk.”

In 1968, the U.S. Supreme Court held that it is not an unlawful search and seizure when an officer stops an individual in the public arena and frisks that individual if the officer has reasonable suspicion that the individual is committing a crime, has committed a crime, or is about to commit a crime and furthermore, has a reasonable belief that the individual might be armed and therefore dangerous. Officers and legal authorities often refer to this as a “Terry Stop,” referencing the Supreme Court decision, Terry v. Ohio, 392 U.S. 1, in which this decision was pronounced. The decision is premised on officer safety, that is, if the officer has reasonable suspicion of the criminal activity, the officer can lightly frisk the detained individual for a weapon. Because the officer has reasonable suspicion of criminal activity, the individual is considered “detained” (but not arrested) and is not free to walk away without the officers consent.

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YOUR RIGHTS WHEN THE POLICE STOP AND QUESTION YOU

If a police officer stops you in a public place and begins asking you questions, what rights do you have?

(Note that this post does not apply to a DUI stop. For information on your rights if you are stopped for a suspected DUI, see my DUI blog. )

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WHY ARE SO MANY PEOPLE LOCKED UP IN THE UNITED STATES?

In last week’s post, I discussed the high prison population in the United States relative to other countries. According to all available statistics, the U.S. leads the world in the incarceration of its population per capita. This statistic paints the picture: Almost 25% of the world’s prisoners are in the United States, yet the United States has only 4.5% of the world’s population.

The high incarceration rates are often blamed on the number of people the U.S. locked up for relatively minor drug possession offenses, the so-called “War on Drugs,” but that doesn’t stack up. As I discussed in last week’s post, the incarceration statistics don’t entirely support that theory. It is quite likely that there is more than one overriding reason the United States locks up so much of its population.

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