Fighting for your freedom
Certified Criminal Law Specialist
Former Deputy District Attorney
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The justice system has to be able to conduct lengthy criminal trials even when important witnesses can’t be there. For example, a typical murder trial will last at least two to three weeks, and may require the testimony of dozens of witnesses. Because of the backlog in our court system, it can be fairly unpredictable as to exactly when a trial will start. For instance, even after all the formal delays in starting a trial (known as asking for a “continuance”), the state still has 10 days to “trail” the case as they wait for a courtroom to become available. And none of this takes into account the time between when an alleged crime occurs and when a case actually goes to trial. In fact, a trial can be years in the making.

So what happens if a witness who has important testimony simply won’t be available when a case finally goes to trial? Sometimes an important witness for either the prosecutor or the defendant will fall ill, move out of the country, or any other number of things happen which would make them unavailable to appear at the trial. The solution to this dilemma is what is known as a “conditional examination.” The procedure to be used in such an examination is carefully crafted to protect the prosecution and the defense and the ability of both to have a fair trial when that time comes.

California Penal Code Sections 1335 through 1345 set forth the circumstances when a conditional examination may be conducted. A conditional examination is appropriate when a witness is: 1) About to leave the state, 2) So sick or disabled that their ability to testify is in doubt, 3) Sixty-five years of age or older, or 4) A dependent adult. For purposes of the “conditional examination” the witness’ testimony is taken in a normal courtroom setting. The Judge, Prosecutor, Defendant and his counsel are all present. While a jury is not present, the testimony is audio and video recorded. If the witness is truly unavailable for trial the tape recording can be played for the jury during the trial. The testimony given at a conditional examination has the same force and effect as if the testimony were conducted live and in person in front of the jury.

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Gang-Injunctions.jpgTally another victory for civil liberties and constitutional rights. On Tuesday November 5, 2014, the 9th Circuit Court of Appeals ruled that a gang injunction in place in Orange County was overly broad and violated an individual’s basic freedoms. An injunction is an order by a court for someone to do something or refrain from doing something. A gang injunction is a new and dangerous twist on this traditional court order that is being used by District Attorney’s offices throughout the US. A gang injunction is a court order that attempts to restrain members of known gangs from associating with each other in public or representing their gang. As of 2010 there were 150 active gang injunctions in California alone.

But wait, what’s the problem with telling gang members that they can’t hang out with each other and wear gang attire? Why wouldn’t we want to do that? Well, the problem is gang injunctions typically draw in a swath of law abiding citizens in an act of profiling and enforcement practices that resemble something closer to a police state than a democracy. For instance, the gang injunction that came before the 9th Circuit restricted what clothes could be worn within the “safety zone”. It limited people’s 1st amendment right to publicly associate with whomever they choose, and even imposed a mandatory curfew. The particulars of such a gang injunction seem better fitted for martial law than a free republic.

For instance, children of a community activist were served STEP (Street Terrorism Enforcement and Prevention) notices for merely being in a car with a suspected member who might have associated at one time or another with an associate of a gang. Her children were even finger printed, all at a routine traffic stop. Stories like these led the 9th Circuit to find that “the injunctions provisions were so sweeping that enforcement of them constituted a heavy burden on an individual’s basic freedoms”

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Los-Angeles-CA-Justice-DENIED.jpgOn November 8, 2013, the Los Angeles Times had a headline that read, “34 year wait for justice is over”. The defendant, Kash Register, was convicted of murder in 1979 on the testimony of a woman named Brenda Anderson. Register spent 34 years in State Prison maintaining his innocence. He couldn’t be paroled because he always maintained his innocence. He refused to admit to a murder he didn’t commit. The Parole Board is programmed to deny parole to those inmates who don’t admit their crime because without an admission, how can the inmate be rehabilitated?

So, Register languished in prison, denied his freedom, the basic human rights of American citizens, but not the love of his family, who believed in him from the beginning. Along came Loyola Law School who diligently sought out the truth.

What truth were they seeking? The truth that the prosecution had failed to disclose to Register’s defense attorneys that Brenda Anderson’s sister had told LAPD before trial that her sister was lying. Brenda Anderson’s sister told the police in 1979 that the man she had seen commit the murder was not Register.

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Hiding-Evidence.jpgSubvert the criminal justice system. Lie to the judge. Hide evidence. Sounds like a defendant in a criminal case doesn’t it?

Who else could it be? If it isn’t the criminal defendant, it must be the much maligned criminal defense attorney, right? You know who he or she is, right? He’s the one who you love to ask at cocktail parties, how can you represent those guys (defendants in a criminal case)?

Well, it’s not either one of the above. In the case of the State of Texas against Michael Morton, the liar was none other than the prosecutor, Ken Anderson.

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Is the government growing a conscience? Our previous blog post discussed the NSA’s very nasty habit of watching everything we do without warrants or permission, and then turning over their information to law enforcement agencies. Well when we asked “who watches the watchers”, it seems like we may have found an answer. The New York Times has reported that the Solicitor General for the United States, Donald Verrilli Jr. has voiced strong opposition to such tactics.

Typically there is no way to know if evidence gathered against you comes from the NSA’s warrantless surveillance program. You can’t fight what you don’t know, so even if the government has illegally gathered evidence against you you’re out of luck. But the Justice Department is set to inform certain defendants that the evidence gathered against them may have come from warrantless surveillance. Apparently Mr. Verrilli is extremely troubled by the actions of the NSA and the Justice Department and doesn’t believe it’s legal or right. Imagine that! Hopefully this is just a small step towards shoring up our Constitution and the rights it affords us.

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How does the NSA surveillance scandal affect you personally? Most people take the attitude that the NSA snooping into everyone’s lives is harmless if you have nothing to hide. The problem is sometimes we don’t know we’re hiding something! There are thousands upon thousands of laws, and it’s impossible for even the most experienced lawyer to know all of them. Everyone at some point in time has made a harmless mistake and broken a law. Merge into another lane without using your blinker? Well it’s not too farfetched to think that in a surveillance state even these small actions might eventually result in harsh punishment and prosecution. But the NSA can’t arrest you! Plus they’re only interested in terrorists! What a waste of time it is to get worked up over this!

Well, while the NSA can’t arrest you themselves, it is becoming apparent that whatever they learn about your life gets passed along to law enforcement. You might be wondering how this is constitutional! They can’t just snoop on you and violate your constitutional rights and then arrest you can they? Well, it turns out that law enforcement agencies use something called “parallel construction” to make it legal.

Parallel construction occurs when the NSA gives a law enforcement agency a “tip”, and this law enforcement agency uses this tip to invade every aspect of your life until they can construct a legal way to introduce that evidence in a case against you. Right now the Drug Enforcement Agency is the biggest culprit. But even the IRS is in on this action! This is the scariest part! Where does it stop? Will the NSA give tips to local and state law enforcement? It’s a brave new world when your government can spy on you at will illegally, and then help law enforcement agencies arrest and convict you legally. So whenever someone says they have nothing to hide, ask them “Who watches the watchers?”

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Are you a defender of the 2nd amendment? One of the most valued personal liberties in the United States is the right to bear arms. Just recently, the United States Supreme Court reiterated that the 2nd amendment guarantees the right to personally possess firearms (http://en.wikipedia.org/wiki/District_of_Columbia_v._Heller). But it’s important to realize that this doesn’t mean you get to carry a firearm wherever you like, whenever you like. For instance, California does not allow a citizen to openly carry a loaded firearm in public (http://codes.lp.findlaw.com/cacode/PEN/3/4/2/1/2/s12031)! In fact, even carrying an unloaded firearm can get you into trouble these days.

But what is most troubling is that you can get in trouble for accidentally having a firearm or some form of ammunition on you. For instance, did you know that if you accidentally bring an empty magazine or even a single bullet into an airport, you can spend up to 6 months in jail? It doesn’t matter if you have a firearm, or the ability to use that ammunition. It doesn’t matter if it was just an accident; you can and will be charged with a violation of the Penal Code! Many people are unsure of where your 2nd amendment rights begin and end. That’s why it’s very important to have a good advocate on your side so you don’t spend 6 months in jail for an accident!

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Were you arrested for DUI but didn’t have a single drink all night? It’s a common misconception that if you have a blood alcohol content under 0.08 you cannot be found guilty of a DUI. This probably comes from Vehicle Code Section 23152(b) which says you can be arrested if you’re BAC is over 0.08. But lots of people are unaware that you can also be in violation of Vehicle Code Section 23152(a), which simply says you’re guilty of driving under the influence (DUI) if an officer thinks that you are unable to safely operate your vehicle because of alcohol or drugs. Not only does this mean that you can be found guilty of DUI if your BAC is below 0.08, but you can be found guilty even if you haven’t touched a drop of alcohol.

What’s worse is that violating Vehicle Code Section 23152(a) doesn’t require you to have a hard drug in your system. While having meth, cocaine, or another hard drug in your system will certainly get you in trouble, many people don’t realize that having everyday prescription drugs such as Xanax, Vicodin, or Ambien put you at just as much risk. Having a prescription doesn’t automatically put you in the clear either! If you’ve taken more than your prescribed dosage for instance, you’re going to have trouble on your hands. And even if you’re within your prescribed range, you can still be guilty of violating Vehicle Code Section 23152(a).

Before you know it your license has been suspended, you’re facing time in a county jail, and you have to pay thousands in court fees and fines — all because you took your prescription medication. If you have an experienced attorney on your side, he will be able to schedule a hearing with the DMV to attempt to save your license from suspension. He’ll be able to analyze the police reports and videos of your incident, and make sure the district attorney’s office is aware of your legal prescription for your medication. If you’ve been arrested for DUI, it’s important to have a good attorney, even if you didn’t drink!

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Just because you’re guilty of committing a crime with a mandatory jail sentence doesn’t mean you have to serve time in jail! Many crimes in California carry mandatory minimum jail sentences. Most commonly those who receive a second DUI conviction within 10 years of their first will find themselves facing time in the county jail. If it’s mandatory it must mean there’s no way to avoid it right? It must mean hiring a lawyer just isn’t worth it; after all how could they possibly help you?

Well, turns out that in California a savvy criminal defense lawyer would know that secured electronic confinement (SEC) is always an option! SEC can take many forms in California, depending on the county you live in. While many people think it literally means you can only stay in your house, that’s not true. Your lawyer can attempt to get exceptions for work, school, or other necessary tasks you must attend to on a regular basis.

So how does this process work? Let’s say the District Attorney doesn’t want to budge and will only offer a plea deal involving 60 days of jail(!). If the DA will not agree to SEC, your attorney can still ask the Judge if he would be willing to grant some or all of that time as SEC. Even if the *Judge* doesn’t agree, you can ask the jail facility you are taken to if they are willing to release you on SEC. With the jails being so overcrowded in California, these requests are often granted. The problem is, if you don’t know about it then you won’t get it! Yet another reason to make sure you have good counsel, regardless of the charges against you.

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Are you worried that a loved one with mental health issues is being railroaded by the system? As a society our understanding and compassion for those who suffer mental health issues is still evolving. But when a loved one suffers under the weight of such an issue, this evolution can seem painfully slow. For instance, sometimes loved ones suffer from an affliction that robs them of their ability to understand the consequences of their actions, or to even understand what is going on around them at all. Unfortunately, the District Attorney’s office will not take this into account when piling charge after charge against your loved one. In fact, they’re likely to accuse them of “faking it” or “making it up.” No one else will watch out for your loved one’s interests during a criminal proceeding except for their attorney.

For instance, in California, Penal Code Section 1368 allows for an attorney to express a doubt to the court over whether or not their client is competent to take part in criminal proceedings. The Court must hold a hearing if such a declaration is made, and through this hearing your loved one may be given grace to receive treatment for their disease(s). While this does not erase the criminal charges against them, it does mean that they will be assured a stay at a hospital that can effectively nurse them back to health. Only when they’re able to understand the serious nature of the charges against them and provide help in their defense can they be subjected to the stresses of the criminal justice system

Contact Information
5031 Birch Street, Suite 100
Newport Beach, CA 92660
Phone: 714.544.9844
Fax: 714.544.4337

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