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The mental health diversion statute (Penal Code section 1001.36) was amended in the 2021-2022 Legislative Session to encourage the courts to make use of mental health diversion.  The amended law became effective on January 1 of this year.

Penal Code section 1001.36 was enacted in 2018 to address the fact that many defendants who cycle through the criminal justice system suffer from a mental illness or disorder. The purpose of the statute was to allow these defendants to petition the court to divert adjudication of their criminal case and allow the defendant to enter a regimented treatment program, as ordered by the court. Not all offenses are eligible and not all mental disorders will qualify, but the statute is broad and includes many mental disorders and crimes.  If the treatment is successful, the court will dismiss the charges against the defendant.

The law recognizes that often crimes are committed because individuals who commit crimes suffer from a mental disorder. For example, someone who is in and out of the justice system for theft might suffer from a drug addiction and the reason he or she constantly steals is to pay for that habit. Section 1001.36 attempts to address the underlying reasons for the defendant’s entry and re-entry into the criminal justice system. Another example might be a defendant who is charged with assault because he has bipolar disorder, but he has not been treated for this condition.

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You are hanging out in a park with a couple of friends. Two police officers show up and ask you and your friends what you are doing in the park. You walk away, which is within your rights.  If you do attempt to walk away and the officers prevent you from doing so, you are legally detained. Or you don’t walk away because you believe you are not free to walk away due to an articulable intimidating presence of the officers. In either case, you are being detained.

You may ask the officers: “Am I being detained?” and, indeed, you should. It is important to establish whether you are detained on not. (If the officer says you are not being detained, then you are free to walk away.) The reason it is important to establish whether you are detained or not is because of what may come next. If you end up getting arrested subsequent to the detention, you may be able to suppress the evidence if the court determines that the detention was unlawful.

You find out from the officers that they received a report of suspicious activity in the park and that you and your friends fit the description of the individuals who are suspicious. In this case, or under other circumstances where an officer can establish reasonable suspicion that you are engaged in or about to engage in criminal activity, the officer can legally detain you for a brief investigation. This is known as a Terry stop, named after the Supreme Court case, Terry v. Ohio (1968) 392 U.S. 1., where that court held that an officer may conduct a brief investigative detention when there is reasonable suspicion that the individual stopped is armed or where the officer suspects criminal activity is afoot.

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Not long after the invention the Model T, people in the U.S. fell in love with their cars. Nowhere was the car culture more celebrated than in California. (Perhaps you recall the hit 80’s song “Walking in L.A.” The chorus: “Walkin’ in L.A., nobody walks in L.A.”.) Back in the day, street (drag) racing was popular, and dangerous. The “sport” has been celebrated in iconic movies and in popular lore. Street racing remains a major concern for law enforcement in California and it is even more dangerous now. Not only is there street racing on our roads and highways, but there are sideshows, often in parking lots, and street takeovers.

While sideshows are not new, they have been increasing in popularity in Orange County, and indeed, all over the country. Sideshows and street takeovers involve exhibitions of speed with drivers performing stunts such as drifting, donuts, and burnouts. These exhibitions take place in parking lots or on city streets and highways. The most brazen of these stunts is what is known as “ghost riding,” where the driver exits a moving vehicle and dances around it before hopping back in. Some of these exhibitions involve hundreds of vehicles and sometimes multiples of that as viewers. Thousands of these events take place every year in California. According to the California Senate, the California Highway Patrol responded to almost 6,000 calls involving speed contests or sideshow exhibitions in 2021.   The National Highway Traffic Safety Association (NHTSA) links many fatal crashes directly to this type of risky driving.

In 2020, the California Highway Patrol initiated an effort, Communities Against Racing and Side Shows, to address these dangerous, and unfortunately popular, driving exhibitions. Identifying sideshows, street takeovers, and street racing as a major cause of vehicular deaths and injury, the CHP launched this campaign to focus on the issue with the goal of decreasing these tragic outcomes. Along with enhanced speed enforcement, CHP has created task forces with local law enforcement and social media promotions on the dangers of these driving behaviors.

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No doubt you have heard the news that Alec Baldwin is to be charged with involuntary manslaughter after fatally shooting a cinematographer on set. I won’t recount the alleged series of events leading up to this charge as most everyone is familiar with the story. What is important to know is that Mr. Baldwin was handed the gun on set and according to Mr. Baldwin believed it was not loaded with live bullets. In other words, according to Mr. Baldwin, the shooting was, though tragic, an innocent mistake.

After the incident, Mr. Baldwin was questioned by detectives. He was cooperative and eager to help the investigation, voluntarily answering their questions.  Before his sit down with the detectives, he was read his rights, which included the right to remain silent, his right to have an attorney present, and the admonition that anything he told the detectives could be used against him in a court of law. Mr. Baldwin confirmed with the detectives that he was not charged with any crime and then proceeded to “spill the beans.”

He told all because he wanted to help and he honestly believed he was not guilty of any crime, since the shooting was an obvious mistake. As Mr. Baldwin and the detectives knew, guns are used all the time on movie sets, there are special experts on set, called armorers, whose job it is to make sure the guns are either not loaded or loaded with blanks. Mr. Baldwin explained to the detectives that when the armorer handed him the gun, she told him it was “safe” but asked him if he wanted her to double check. Having never had a problem with a “hot” gun on set before, and this being routine, Mr. Baldwin told the armorer, “I’m good.” This seemingly innocent statement to the detectives is what led to Mr. Baldwin being charged with involuntary manslaughter: this statement indicated that Mr. Baldwin was criminally negligent because he had a responsibility to check the gun before firing it on set.

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You may have watched the popular reality TV series “To Catch a Predator” which aired from 2004-2008. In that series, law enforcement would set up adult men who thought they had arranged a tryst with a minor.  The scheme went something like this: an adult man would go online looking for minors (usually girls) to have sex with. On the other end of the online hookup would actually be a law enforcement officer posing as the minor. Eventually, there would be an arrangement to meet at which point, the TV show’s tapes started reeling. The unsuspecting adult would show up and before he knew it, he was tackled to the ground and arrested for soliciting a minor.

To Catch a Predator is no longer on the air but luring unsuspecting predators into the hands of law enforcement is a thriving business. Did I say business? Well, yes, it is. Across the country, self-styled vigilantes, often working with law enforcement, have set up their own predator sting operations. Going on popular hook-up or chat apps, these vigilantes posing as children, engage with adults. Sophisticated in the legal requirements to prosecute for soliciting a minor, the vigilantes are careful to set up the predator so that the elements of the crime are satisfied. These vigilantes then provide law enforcement with the evidence they need to prosecute the predators.  The vigilantes usually live stream their predator captures on Tiktok, Facebook, YouTube or other social media. These social media accounts bring in donations and/or membership fees and can have thousands of followers. Social media, such as YouTube, also monetize videos and popular uploads can make plenty of money.

But as with Catch a Predator, which went off the air after a Texas assistant district attorney — understanding that he had been exposed — shot himself as the To Catch a Predator camera crew entered his house, the vigilante operations have potentially dangerous consequences. Some law enforcement agencies and prosecutors refuse to work with these groups fearing a confrontation could turn violent, that the evidence could be altered, and because of the obvious concern that untrained civilians confronting a predator in public places may present a danger to the public.

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 Legislation recently signed into law by Governor Newsom will make certain previously convicted individuals automatically eligible for the dismissal of their conviction when four years have passed since the completion of their sentence. This new law makes many Penal Code section 1203.4 petitions for expungement automatic rather than requiring filing a petition in court.

Not all convictions will be eligible, but many will. There will be no requirement to file any petition or motion for the relief. Rather, the California Department of Justice (DOJ) is tasked by this legislation to review statewide records on a monthly basis to identify those individuals who are eligible for this relief. To be eligible the individual must not have been convicted of another felony within the four year period following completion of sentence.

Persons not eligible for this relief include those who are required to register as sex offenders, persons on active probation or supervised release, those with pending criminal charges, those for whom the conviction was for a serious felony (as defined in Penal Code Section 1192.7, subdivision (c), or a violent felony defined in Penal Code Section 667.5. Serious and violent felonies not eligible include murder, attempted murder, voluntary manslaughter, mayhem, rape, forced sex crimes, sex crimes against children, arson, robbery, carjacking, and kidnapping among other crimes (refer to the above-referenced penal code sections for an exhaustive list).

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Those of you who are old enough will no doubt remember the slow-motion Los Angele Police Department pursuit of O.J. Simpson’s Ford Bronco in June of 1994. The “chase” (if you can call it that) lasted approximately two hours and covered 60 miles, mostly on the 405 after he became a suspect in the murder of his wife and her friend. A good portion of the country was glued to the live news feed of the 35-mph pursuit, running from Orange County and finally ending at OJ’s home in Brentwood, a suburb of Los Angeles. That certainly wasn’t Southern California’s first police chase and not even it’s first live news feed of police pursuit, but it put Southern California on the map as police chase reality TV central.

We may be fascinated by the “excitement” of a live-feed police pursuit, but these chases are usually at higher speeds than the O.J. chase, are dangerous, and more frequent that you might think. For the most recent year, 2019, in which the statistics are made public, the CHP alone was involved in almost 2,500 police pursuits. Looking across all law enforcement agencies in the state, there were over 9,000 law-enforcement vehicle pursuits in 2018. Something around 20% of these pursuits end in a collision, some causing injury, and sadly some causing death. In 2020, 41 people died as a result of a law-enforcement vehicle pursuit making it the deadliest year on record since 2006. (Statistics for 2021 are not yet available.) A portion of those injured or killed by a police chase includes innocent bystanders.

While audiences watch the live feed of a police chase, the anticipation keeps them glued to the real-life drama. How will it end? Will there be a spectacular crash? Will someone get hurt? Will the suspect get away? The drama can increase a network’s rating, often substantially, by interrupting the regular programming for “breaking news” or devoting much of the news hour to the on-going IRL chase. The live-action event even sends spectators who are nearby out to witness the drama. It is guaranteed to get viewers and thus following these chases with helicopters equipped with cameras becomes a competitive race between the networks.

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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.)

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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.

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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.

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