by

Issuance and execution of a search warrant has been in news this summer. You have probably read a few articles that mention the standards for the issuance and execution of a search warrant. Foundational to the validity of a search warrant is that the warrant must establish probable cause for the search and seizure.

When a law enforcement officer (or prosecutor), based on his or her experience, knowledge, and observations, has probable cause to believe evidence of a crime can be found in a search of property or person, the officer (or prosecutor) goes to a judge with an application, affirmed under oath, for the issuance of the search warrant. Only a judge can issue the search warrant.

“Probable cause” is a nebulous legal term that the courts still debate to this day. The Supreme Court “frequently has remarked [that] probable cause is a flexible, common-sense standard” wherein the facts available would “warrant a [person] of reasonable caution” to believe evidence of a crime is within the places or persons to be searched.  (Texas v. Brown (1983) 460 U.S. 730, 742.) That Court also described probable cause as a “particularized suspicion”, not a generalized profile. (Ibid.)

Continue reading →

by

Our country continues to witness an increasing mental illness. Studies demonstrate growing percentages of depression, suicide ideation, substance abuse, and our own observations cannot deny the growing rates of homelessness.  Inmate populations have swelled and research finds a direct correlation between the increasing mental health crisis in this country and increasing inmate populations.

Nationwide, around 64 percent of inmates held in county jail facilities have a mental illness. Any reasonable observation of the Orange County Jail population will lead to the conclusion that it is the largest mental health facility in the county. Indeed, the Orange County sheriff, Don Barnes, observed that the Orange County Jail has become just that, “by default.”  Virtually none of those inmates will receive proper health treatment in jail. Rather than addressing Orange County Jail’s mental health crisis by hiring more trained mental health professionals to treat those before they end up on jail, the county is just adding more space to house the ever-increasing inmate population.

And when those inmates have a mental health crisis, it is often law enforcement, not mental health professionals, that “treats” the patient. Law enforcement has the ultimate authority on how to treat an inmate suffering from a mental illness or crisis. That authority can override doctors’ orders. As to the treatment of inmates in a mental health crisis, a recent article by a former Orange County jail inmate described jail protocol for inmates who attempt suicide. The inmate is punished, not treated.  An inmate who attempts suicide is descended upon by guards and transferred to a cold cell (described as a walk-in refrigerator). The inmate is given only a stiff apron to put over their body (as any other article of clothing could be an instrument of suicide), which exposes much of the inmate’s body to the cold. The inmate is deprived of conversation and human contact, left alone and almost naked. The inmate subjected to these conditions will often recant their attempt and insist they are not suicidal in order to gain release from the “Suicidal” cell. This could hardly be called treatment.

Continue reading →

by

This is a true story. Martha M., a 72-year-old widow, was charged with murder. She became a widow when her husband, who was suffering and in great pain with terminal cancer, died.  Her husband’s death is how she came to be charged with the crime. You see, she gave him the drugs – through his feeding tube – that ended his life.

But she did this after he begged and cajoled her to do so. She was reluctant but was finally convinced by her husband that it was the compassionate thing to do. They were naïve. They both honestly believed it was legal if she injected the drug into his feeding tube at his sincere request. In fact, she had no idea that what she did was entirely unlawful in California and when the police came for the investigation, as they always do when there is a death at home, she tearfully explained the circumstances. She was genuinely shocked when she found herself immediately under arrest.

Later, the prosecutor reduced the charge against, Martha to manslaughter because the prosecutor determined that while she did kill her husband, it would be difficult to prove that she did so with “wanton disregard” for his life i.e., malice aforethought, which is a necessary element of the crime of murder. That Martha believed she was committing a legal act was not a defense.

Continue reading →

by

There has been quite a bit in the news about crime in California. Many of the reports are alarming. But what do the data actually say? The California Attorney General’s office (AG) recently released its criminal justice statistical report for 2021. Yes, crime did increase in California last year. But there is a caveat, the rate of crime committed in 2021 for almost all crimes were significantly below the rates of crime in California 30 or so years ago.

For example, the number of homicides increased by 7.2% over the number of homicides in 2020. However, the number of homicides in California in 1993, the year of the historical high, was almost double that of 2021 (2,361 in 2021 vs. 4,095 in 1993). Similarly, the rate of all violent crimes increased 6.7% in 2021 but was substantially below the historical high in in 1992. The AG provided tables going back to 1966 (although 1980 was the first year of complete reporting). The tables, if the raw data is to be compared, shows that 2021 was nowhere near the high crime era of the 1980s and 1990s. The robbery rate, for another example, was 130,867 per 100,000 in population in 1992; it was 43,628 in 2021. In other words, the robbery rate was less than half last year as compared to the high crime year of 1992!

Those of you who lived in California in the late 80s and early 90s may recall the clamor for a “three strikes” law. Looking back at the crime rates then, it is no wonder. And indeed, California’s Three Strikes sentencing law was passed in 1994. Whether it was that law alone or in combination with other factors, or other factors altogether (demographic, for example), we can see on the AG’s tables that crime started to decrease significantly from 1995 onward, many crime rates cut in half from then to now.

Continue reading →

by

Most people are vaguely aware that the court may order a direct restitution payment to the victim of a defendant’s criminal conduct. In fact, criminal restitution is almost always mandated by law when the victim suffers an economic loss due to the defendant’s criminal act(s). Direct restitution is not ordered unless and until the defendant is convicted of the crime.

The law also mandates that the court order a restitution fine, which is paid to the state.  This is a separate and additional restitution order, but not the subject of this post. Here, we will discuss direct restitution, which is codified at Penal Code section 1202.4.

Direct restitution may be ordered on a misdemeanor or a felony conviction. Following conviction of a crime in which a victim claimed to have suffered economic losses due to the defendant’s criminal conduct, the court will make a restitution order at sentencing or at a later restitution hearing.

Continue reading →

by

There is a very important concept in the application of criminal law: Intent. Most criminal acts require an element of intent, otherwise the act is generally one of negligence. (Some crimes, while not requiring intent, are criminal because the conduct was criminally negligent, but that is not the subject of this post.)

Whether a crime is one of specific or general intent may be a crucial factor in defense of the crime.  Generally, when a crime is defined as an act without intent to achieve a further result, the crime is said to be a general intent crime. For example, the crime of assault is a general intent crime because it is committed for its own end. A specific intent crime is a criminal act that is carried out with the intent to achieve an additional result. Burglary is a classic example of a specific intent crime. Burglary is the act of entering a structure with the intent of committing a theft or any felony.

Not all laws make the distinction as clearly as the burglary law does and it is not always apparent whether a crime is a general or specific intent law. For many crimes, the courts have offered decisions on whether a crime is a general or specific intent crime, but as the California Supreme Court has recognized the terms “specific and general intent” crimes have been difficult to apply. (People v. Hood (1969) 1 Cal.3d 444, 456,) The Court has also cautioned that the “rote application” of general or specific intent should be avoided. (People v. Hering (1999) 20 Cal.4th 440, 445.)

Continue reading →

by

As a very general rule, but with a lot of exceptions, a peace officer may not effect a warrantless

arrest on a person who is believed to have committed a misdemeanor if the crime was not

committed in the officer’s presence. This is often referred to as the “In the Presence [of a

Continue reading →

by

A conviction of first-degree burglary requires evidence that the defendant entered certain structures with the intent to commit a theft or a felony. The structure must be one for which the purpose is habitation, even if not currently occupied, for example, a house, an RV, or a houseboat. Sometimes the element of intent to commit the underlying crime is easily proved because after the defendant entered the structure, he or she did commit the requisite theft or other felony. However, the underlying theft or other felony need not actually to occur to prove the burglary charge. If the prosecution can prove that the defendant intended to commit the underlying crime, that can be enough.

Recently, the California Court of Appeals considered a case where the defendant was charged with burglary when he entered the home occupied by his mother and brother. (People v. Mani, 3DCA, #C088716, 2022 Cal. App. Lexis 66, January 2022.) The prosecution alleged—as the underlying crime to the charge of burglary— that the defendant intended to steal from the home. Although the defendant did forcibly enter the structure and he was holding a kitchen knife, no theft occurred.

The defendant had previously threatened and harassed both mother and brother and both had active domestic violencerestraining orders against the defendant. These prior acts were put into evidence for proof of the defendant’s intent to steal from the home.  The defendant challenged the prosecutions “prior acts” evidence as inadmissible evidence that the defendant had the intent to steal. In other words, previous domestic violence did not prove that the defendant intended to commit a theft.

Continue reading →

by

This is a tale about how a small change in criminal law can affect a criminal defendant in a big way.

The California Legislature is always busy writing bills seeking to enact new or amended criminal laws. When these bills pass committee and are signed by the governor, they will become law. Sometimes the new or amended laws take effect while a defendant who would be affected by the new law is awaiting judgment, awaiting sentence, or already convicted and serving a sentence. Are the new or amended laws retroactive to these affected defendants?

Here is the tale of the unfortunate Mr. Robinson. His particular encounter with an amended law has been repeated in many variations and many times over the years when a new or amended law takes effect.

Continue reading →

by

  It took five years, but Prop 63 is now the law. In 2016, the California voters passed Prop 63, which outlawed most “large capacity magazines,” as defined by the proposition as a magazine that holds more than ten rounds of ammunition. The nascent law was challenged in federal district court, resulting in a preliminary injunction on implementation of the law after the federal judge found the law to be an unconstitutional violation of the Second Amendment.  The questions were complex, but at its core, the questions before the district court were: “”Does a law-abiding responsible citizen have a right to defend his home from criminals using whatever common magazine size he or she judges best suits the situation? Does that same citizen have a right to keep and bear a common magazine that is useful for service in a militia?” (Duncan v. Becerra, 265 F.Supp.3d 1106, 1112 (S.D. Cal. 2017) .) This was the beginning of many years of court wrangling.

In 2020, the Ninth Circuit upheld the district court’s ruling. In a nutshell, the Ninth Circuit found that the new law infringed on the right of a citizen to self-defense. Although the Ninth Circuit was not speaking broadly about all gun control measures – and, in fact, found the goal of reducing gun control laudable – the court, noted that half of all magazines owned in America are “large capacity magazines” as defined by Prop 63, and would thus make “unlawful magazines that are commonly used in handguns by law-abiding citizens for self-defense . . . burden[ing] the core right of self-defense guaranteed to the people under the Second Amendment.” (Duncan v. Becerra, 970 F.3d 1133, 1169 (9th Cir. 2020)

But wait there’s more. Last month (November 2021), the Ninth Circuit Court of Appeal reversed itself. Once again, the reasoning of the decision is complex and may seem a bit convoluted, as quite frankly, many case decisions are. But this time around, the court did not ask whether the new law implicated Second Amendment rights, except to say that the law placed a minimal burden on core Second Amendment rights. Instead, the court focused on the rights of the state’s (California) interest in reducing gun violence. Noting that the Prop 63 restriction on large capacity magazines does not outlaw all firearms or restrict a law-abiding citizen’s right to self-defense but does reasonably support California’s effort to reduce the incidence of mass shooting and murders.

Continue reading →