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The Ninth Circuit Federal Court of Appeal recently overturned a California state court conviction based on a finding of clear Miranda error. (See Garcia v. Long, No. 13-57071.) The accused person answered a simple “no” when officers read him his Miranda rights and asked if he wanted to talk. Instead of stopping the interrogation, the officers asked follow-up questions to clarify the person’s reasons for invoking his Miranda rights. The officers asked if he was just uncertain about the charges against him. The accused person took the bait. He eventually agreed to talk to the officers if they explained the charges. After hearing the charges, he gave a detailed and lengthy confession. He objected at trial that the confession violated his Miranda rights. The trial court overruled the objection and allowed the prosecutor to present the confession to the jury.

Clear Error in Applying Miranda and Determining the Facts

The Ninth Circuit had to meet a high bar in overturning the California state court conviction in Garcia. In 1996, the United States Congress passed a law (i.e. Anti-terrorism and Effective Death Penalty Act) that restricted federal judicial review of state court convictions. The law prohibited federal courts from overturning state court convictions unless the state court was not just wrong, but clearly wrong. The Ninth Circuit in Garcia had to find that the California District Court of Appeal (DCA) (a) clearly erred in applying the Miranda rule as established by the United States Supreme Court or (b) clearly erred in deciding what the facts were. The Ninth Circuit found that the DCA committed clear error in both respects. Continue reading →

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California law requires that Courts in criminal cases order Victim Restitution to compensate victims for economic losses. The requirement can add considerable expense to a criminal conviction. Defendants who are considering a plea bargain should ensure that the bargain addresses any restitution issues.

Direct Consequence of Plea

Victim Restitution is considered a direct consequence of a guilty or nolo contendere (i.e. no contest) plea. Consequently, the Courts have a duty to advise defendants when they enter a plea that Victim Restitution will be mandatory for any economic losses that victims incurred. A defendant who was not advised that Victim Restitution would be mandatory may have a basis to withdraw his plea when he is later surprised by the issue at his sentencing hearing or while he is awaiting sentencing. A defendant who wants to withdraw his plea must show that he would not have entered the plea if he had been properly advised.

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Domestic violence cases frequently require that the Court consider imposing special terms and conditions when it sets bail or releases an accused person on his own recognizance. The Court must consider imposing a Criminal Protective Order (“CPO”) whenever it finds good cause to believe that an accused person has harmed, intimidated, or dissuaded an alleged victim or witness or is reasonably likely to commit such acts. The Court also must consider imposing orders that are similar to those contained in a CPO when it sets bail in a stalking case.

The terms and conditions in a CPO can be onerous and even life-altering for an accused person. The accused person may have to move out of his home, stay away from his children and the alleged victim, relinquish his firearms, not possess firearms, and submit to electronic monitoring. Once issued, a CPO typically lasts for as long as a case is pending. The accused person must ensure that the Court terminates the CPO at the end of his case. Otherwise, the CPO will remain in effect for whatever time period the Court initially ordered. The Court can issue a new CPO at the end of a case if a person is convicted. Continue reading →

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A person booked into jail for domestic violence will have his bail initially set according to the local bail schedule. Each county in California has a bail schedule that provides the standard bail amount for each crime. Some counties prescribe a “no bail” setting for certain violent or serious offenses. When a person who has been booked into jail appears for his initial court hearing, he is generally entitled to request a bail setting if no bail was set at the time of booking, a bail reduction, and a release on his own recognizance. The Court in a domestic violence case must consider a variety of factors in determining whether to set bail, reduce bail, or release a person on his own recognizance. 

Right to a Reasonable Bail Setting

An accused person has the right to a reasonable bail setting. Nonetheless, the Court may make findings in capital cases and certain felony cases that preclude a bail setting. Bail is not available in capital cases when the court finds that there are sufficient facts to support the charges. Bail is not available in felony cases when there are sufficient facts to support the charges and when the accused person’s release would result in a substantial likelihood of great bodily harm to others. Continue reading →

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A person who finds himself subject to a domestic violence investigation should invoke his right to remain silent and his right to an attorney when confronted by any law enforcement officer. A person does not need even to give his name to officers until he undergoes the process of being booked into jail. Officers have a range of tools to assist them in identifying their suspects. While a person cannot lie to officers, he has no duty to assist officers by identifying himself prior to booking. (See People v. Chase (2015) D067787; People v. Quiroga (1993) 16 Cal. App. 4th 961, 966; People v. Christopher (2006) 137 Cal App. 4th 418, 428.) Nonetheless, when an arrested person has the opportunity to be released on a citation, he may consider it in his interest to give his name rather than insist on waiting until he is booked into jail. 

Release on Citation v. Jail Booking

In many domestic violence cases, the arrested person is not eligible for immediate release on citation. California law requires in all felony cases and many misdemeanor cases that the arrested person be booked into jail. Misdemeanor domestic violence offenses that require jail booking include (a) battery of a spouse or cohabitant, (b) abuse of a spouse or cohabitant, and (c) most instances of violating a domestic violence restraining order. Once an arrested person is booked into jail, he is entitled to appear before a Judge or Magistrate within 48 hours, not counting Sundays and holidays. The person is generally entitled to request that the Judge or Magistrate set bail, reduce his bail setting, and release him on his own recognizance. If the person is not taken before a Judge or Magistrate within the required time-frame, he must be released from jail. Continue reading →

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The Honorable Judge Eric Taylor, President of the California Judges Association, spoke in downtown Fresno last Friday about the future of the California courts.  He joked that he ended up in Fresno after losing a game of pool.  If it happens again, I may advise him that the worst he can do at the horse track is lose some odds and ends of cash.

Joking aside, Judge Taylor addressed to important issues in his speech.  The first was court closures.  Budget cuts after the Great Recession of 2008 led courts throughout the state restrict their hours and shut down court rooms.  Some closures were focused in outlying areas of counties where satellite courts served local residents.  The second issue was inadequate compensation for judges.  Some talented attorneys have enjoyed remarkable income growth as technology and globalization have expanded markets and increased revenue for the companies and people they serve.  While judicial pay has always lagged behind the income of elite attorneys, the disparity probably has increased over the past 25 ears. Continue reading →

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The California Fourth District Court of Appeal recently decided a case that helped to clarify the free speech rights of people at the scene of an arrest. (See People v. Chase C., D067787.) The defendant in the case repeatedly criticized officers and urged people at the scene not to cooperate with officers. Although his speech was loud and profane, he never advocated violence. Based on his speech, he was charged with resisting or delaying officers as they arrested two people and later detained bystanders. The trial court found the charge to be true. The appellate court disagreed and reversed the trial court. The appellate court found that the defendant was engaging in protected political speech and that he could not be held criminally liable for resisting an officer.

No criminal liability where the defendant urged a person not to cooperate during a lawful arrest.

The appellate court found that the defendant was engaging in protected political speech when he urged an arrested person not to cooperate with peace officers. The defendant told the person not to obey the officer’s orders and used the words “fuck him” in reference to the officer. The court observed that the person was already refusing to comply with the officer when the defendant started speaking. The defendant’s speech did not seem to cause any change in the person’s behavior.  Continue reading →

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The California Fifth District Court of Appeal recently ruled that the Department of Motor Vehicles improperly suspended a man’s driver’s license based on unreliable testing for Blood Alcohol Content (“BAC”) in a case of Driving Under the Influence. (See Najera v. Shiomoto, 5th DCA No. F069387.) The testing in question involved the use of a Gas Chromatograph. The DMV argued that the testing produced a valid result. Najera, the man who appealed the DMV decision, argued that the expert testimony in his favor established that the testing was not performed correctly. 

The Court of Appeal agreed with Najera. Although the Gas Chromatograph was an approved method of testing for BAC, the undisputed evidence showed that the testing in Najera’s case was not performed correctly. The Court of Appeal ordered the DMV to lift Najera’s driver’s license suspension. Continue reading →

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The California Fifth District Court of Appeal recently published an opinion that clarified some important questions about Driving Under the Influence and Second Degree Murder. (See People v. Jimenez, Fifth District Court of Appeal No. F067046.) The defendant in the case was charged with Gross Vehicular Manslaughter while Intoxicated and Second Degree Murder. The allegations were based on an incident where the defendant crashed into two pedestrians, killing them. The defendant reportedly told officers afterward that he was “coming down” from methamphetamine and “blacked out” when the accident occurred. Investigators found no skid marks to suggest that the defendant slammed his brakes prior to the collision. The prosecutor’s theory was that the defendant fell asleep due to methamphetamine withdrawal. The defendant took his case to jury trial in Kern County and was convicted on all counts.

The defendant in Jimenez raised three main issues on appeal. First, he argued that he could not be held liable for being “under the influence” based on withdrawal symptoms. Gross Vehicular Manslaughter while Intoxicated is similar to an ordinary DUI in that both crimes require proof that a person was driving under the influence. Second, the defendant argued that there was insufficient evidence to establish that he acted with the Malice Aforethought required for Second Degree Murder. “Malice Aforethought” refers to the guilty state of mind required for Murder. Third, the defendant argued that the trial court should not have allowed a detective, who was not a drug recognition expert, to testify that he was impaired. Continue reading →

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The Orange County Register ran a headline recently that seemed to confuse the crime of Aiding and Abetting an offense with the crime of being an Accessory. The headline stated that a language instructor who is suspected of helping three men escape from the Men’s Central Jail in Orange County, California, on January 22, 2016, was going to be charged as an Accessory. Based on the reported facts so far, she was a more likely candidate for the more serious charge of Aiding and Abetting.

Differences between (a) Aiders and Abettors and (b) Accessories

The crime of Aiding and Abetting an offense differs in important respect from the charge of being an Accessory. The former crime requires proof that the accused person helped or encouraged a perpetrator to commit an offense. The latter crime requires that the accused person helped the perpetrator, but not until after the offense. Continue reading →