Three Little Piggies Went to Court

Three of Fullerton's Finest appeared this morning before Judge Froeberg in Department 40 of the Orange County Superior Court.  The case had been scheduled for a "995 Motion" (more on that below).  After taking brief statements from District Attorney Tony Rauckauckas and counsel for each of the defendants, parties stipulated that the hearing would be continued to January 18.

Officer Manny Ramos (top left) stands accused of Murder and Involuntary Manslaughter.  Corporal Jay Cicinelli (top right) is accused of Involuntary Manslaughter and Assault & Battery by a Police Officer.  Officer Joe Wolfe (bottom) faces the same charges as Cicinelli.  All three are accused of causing the death of mentally ill homeless man Kelly Thomas during a brutal confrontation last July at the Fullerton Transit Center.  The beating was captured on city-operated cameras.  During the beating, Kelly can be heard crying for help and repeatedly apologizing to the officers before he takes his last breath.

Ramos is accused of instigating the confrontation by threatening Thomas.  At one point in the video, Ramos is seen putting on latex gloves.  He says to Thomas, "See these fists?  They're getting ready to fuck you up."  At one point after receiving the threats, Thomas attempted to run from Ramos.  Officer Wolfe was the first to strike Thomas with a baton, quickly taking the 130-pound Thomas to the ground.  Cicinelli arrived on the scene after the beating had already begun.  Cicinelli deployed his taser into Thomas several times, then began using the butt of the weapon to pound the victim in the face repeatedly (I suspect Cicinelli is going to learn something about "butt pounding" where he's going).  Cicinelli can be heard on the audio recording saying "I just started smashing his face to hell".  Thomas died after being removed from life support 5 days later.

As I have explained in prior posts, every felony defendant has a right to a "probable cause" hearing.  The purpose of this hearing is to determine whether or not there is enough evidence that a reasonable jury MIGHT possibly vote to convict.  If there is not, we should stop wasting the court's time and the case should be dismissed.  If there is, then we must start preparing for an eventual trial.

There are two ways for the court to determine whether or not "probable cause" exists.  The first and most common way is by conducting a "preliminary hearing" (also commonly referred to a "preliminary examination", "prelim" or just "PX").  At the PX, the DA will present most of their case-in-chief.  Typically, an investigating officer will take the stand and say something like this: "I received a call of a domestic disturbance.  When I arrived at the residence, the victim had a bloody lip and the suspect had blood on his hands.  Witnesses told me that the suspect had punched the victim, so I arrested the suspect.".  After hearing the evidence, a judge will typically find that probable cause exists and the defendant is thereafter "held to answer" to the charges.

The other (and must more rare) way for probable cause to be established is by a Grand Jury.  The Grand Jury is group of volunteers who sit on the panel for one-year terms.  They meet in secret to review the facts and to decide whether or not sufficient evidence exists that a suspect could be convicted of a particular crime.  If they decide that probable cause exists, the defendant is thereafter "indicted" for the crimes.  The Grand Jury is more expensive and time-consuming than the PX, so it is only used in very sensitive cases or cases wherein the suspect is a public figure.  The DA may be reluctant to publicly charge a politician with some wrongdoing unless he is confident that the charges will actually stick.  In cases like these, prosecutors can opt for the secrecy of the Grand Jury rather than the usual PX.

In this case, Ramos and Cicinelli were initially charged in the typical manner.  They were publicly accused and subjected to a PX.  After hearing the evidence, a judge determined that probable cause existed and both were thereafter "held to answer" for their crimes.  Wolfe, however, was indicted by the Grand Jury several months later.  This, to me, suggests that DA Tony Rackauckas was reluctant for some reason to publicly charge Wolfe with the serious crimes alleged.  Rather than risking a political firestorm by filing excessive charges and running the risk that some could be dismissed, he instead opted for the Grand Jury route.  If the Grand Jury had determined that there was no probable cause, Officer Wolfe would never be charged and could be spared the public embarrassment of such an accusation.  Of course, the Grand Jury did return an indictment and Wolfe now stands next to Ramos and Cicinelli as all three await trial.

We know that 5 Fullerton Police Officers were involved in the beating that killed Kelly Thomas.  Many in the community have called for charges to be brought against the remaining two, but the DA has declined to do so.  Of course, we will never know if Rackauckas has presented those cases to the Grand Jury.  It is entirely possible (pure speculation) that the DA HAS presented those suspects to the Grand Jury and the Grand Jury has declined to indict because they found no evidence of wrongdoing.

Long story short, probable cause has now been established against all three accused officers.  Their defense attorneys have filed documents called "995 Motions".  A 995 Motion essentially asks the judge to dismiss a case after the PX if a defendant has been unlawfully "held to answer".  The defense is arguing that errors were made at the prelim (or, in Wolfe's case, at the Grand Jury) and that probable cause was found where none actually existed.  The 995 is always a long-shot and never really very likely to succeed.  Failing to file the motion would probably be considered malpractice on the part of the defense attorneys, though.  It's kind of a proverbial "shot in the dark", but one worth taking.

Today had been the day for argument on the 995 motions.  Defense attorneys for the accused asked the judge for more time, however, because the evidence is voluminous and the issues are complicated.  By stipulation of the parties, it was agreed that argument would be postponed until January 18, 2013.  Ron Thomas, father of the victim, addressed the court to oppose the continuance, but Judge Froeberg allowed the delay over Mr. Thomas' objection.

The defendants exited the courtroom immediately after the ruling.  They were flanked by a large group of family and supporters, including armed escorts.  An overweight Hispanic woman, presumably Ramos' wife or a female relative, was seen taunting Kelly's family as the crowd spilled into the hallway.  Ramos laughed and told her "You're funny" as he stepped into the elevator.

Check back on January 18 more another exciting update to the saga.  I will continue covering this story until there is justice for Kelly Thomas.

Is Facebook Secretly Selling Your Instagrams to the Russians?...and other reasons to freak out for no reason.

Today's post is a bit of a departure for this blog.  I know many of my readers direct their web browsers here for the most up-to-date, insightful commentary on current developments in the world of criminal law, but I've decided to go a different direction today.  This post is instead dedicated to yesterday's magnificent collision of intellectual property law, social media and a good-old-fashion internet hoax.

If you logged onto Facebook yesterday and you have more than 3 or 4 friends, you probably saw the following message pasted onto at least one status bar:

In response to the new Facebook guidelines I hereby declare that my copyright is attached to all of my personal details, illustrations, comics, paintings, professional photos and videos, etc. (as a result of the Berner Convention). For commercial use of the above my written consent is needed at all times!

(Anyone reading this can copy this text and paste it on their Facebook Wall. This will place

 them under protection of copyright laws. By the present communiqué, I notify Facebook that it is strictly forbidden to disclose, copy, distribute, disseminate, or take any other action against me on the basis of this profile and/or its contents. The aforementioned prohibited actions also apply to employees, students, agents and/or any staff under Facebook's direction or control. The content of this profile is private and confidential information. The violation of my privacy is punished by law (UCC 1 1-308-308 1-103 and the Rome Statute).

Facebook is now an open capital entity. All members are recommended to publish a notice like this, or if you prefer, you may copy and paste this version. If you do not publish a statement at least once, you will be tacitly allowing the use of elements such as your photos as well as the information contained in your profile status updates.

Of course, cutting and pasting this message onto your Facebook status carries absolutely no legal relevance (except to formally notify all your friends that you are gullible).  It essentially has the same legal effect as posting "I hereby declare that all rules, laws, international conventions and treaties do not apply to me except the ones that I imagine."

It does not require an expensive legal education to spot a hoax like this.  Several "red flags" should jump out at anybody who has ever tried to read the legalese on a mattress tag.

For starters, have you ever read a legal document that used exclamation points?  There is no need to yell when crafting air-tight legal disclaimers.

Next, you might have noticed that there is no such thing as "the Berner Convention".  The Berne Convention is a real thing, but its signatories probably didn't have Facebook in mind when they ratified the treaty in 1886.  The Berne Convention was an agreement by member nations to recognize copyrights granted by all other signatories.  It focused on artistic and literary copyrights, but expressly excluded photographs.  If you have a copyrighted photo of yourself making a duck face in a bathroom mirror and you post it to Facebook, don't expect the Berne Convention to protect your "intellectual property".

By now you're probably wondering what the UCC (which stands for "Uniform Commercial Code") has to do with any of this.  The answer is nothing.  Don't ask my why the author threw it in there.  The UCC is a huge body of model laws governing any sort of commercial transaction you can possibly imagine.  A bunch of lawyers and academic types got together and drafted a set of rules that make a lot of sense when conducting almost any sort of business.  Every jurisdiction in the US has based their commercial codes on the UCC, some more loosely than others.  No jurisdiction in the US has adopted the UCC in its entirety.  And again, it is completely irrelevant to any instagrams of food that you post to Facebook.

This brings us to the Rome Statute.  The Rome Statute established the framework for the International Criminal Court (the "ICC").  The ICC was formed in 1998 to prosecute genocide, war of aggression, and other crimes against humanity.  To date, the ICC has not prosecuted a single case involving misappropriation of instagrams.

And finally, we must address the assertion that Facebook is now an "open capital entity", and that this has some effect on the pictures of cute animals that you have been busy posting.  If there were such a thing as an "open capital entity", we could all imagine what this would mean for Farmville.  Luckily, there isn't.

Stay tuned for more exciting idiocy as it happens.

Election 2012: What's New in Criminal Law?

Last night, voters turned out to decide the future of the country.  Here at the SoCal Law Blog, our interest was devoted to a few ballot initiatives with special implications for criminal justice in California and around the nation.  I've summarized some of these developments below:

-Prop. 34 (California): Would have abolished the death penalty in CA and replaced it with "life-
without-parole".  The measure would have also transferred $100 million from the State to local law enforcement agencies to help investigate cold cases.

Proponents of the measure argued that CA's death penalty system is expensive, dysfunctional, discriminatory, inhumane, and just plain ineffective as a deterrent.  Opponents were backed by various law-enforcement and victims' rights groups.

The measure failed by a margin of 52.8% to 47.2%.  Looks like we will have a (nominal) death penalty in the Golden State for at least 4 more years, when this issue will almost certainly come before voters again.


-Prop. 35 (California):  Increases penalties for human trafficking, requires convicted traffickers to register as sex offenders, and requires registered sex offenders to disclose details regarding their internet usage.

This one passed by a huge margin of victory.  No real surprises here.  Who votes against such a no-brainer?  This guy, for one.

Prop. 35 is a "feel-good" measure that will make people feel like they're making a positive difference (as are most criminal-justice related ballot proposals), without really making any important changes to protect children from becoming victims of sex abuse.  The activities punishable under this act were already illegal before its passage.  This measure merely represents our collective disgust with sex traffickers and not an actual policy shift to help stop that activity.

Sex offenders on probation or parole must already cooperate with any reasonable directives of their supervising probation / parole officers.  This supervision already includes monitoring of the sex offender's internet activity.

Prop. 35 requires that any person who derives income from the work of prostitutes must register as a sex offender.  The intent was to publicly "out" pimps and others who earn their livings by managing sex workers.  The lead opponent of the measure, Maxine Doogan, is a professional "erotic service provider" (her euphemism, not mine).  Since Ms. Doogan provides financial support for her adult son while he attends college, she fears that he could be prosecuted and required to register as a sex offender for life, simply for accepting support from his prostitute mom.  See how good intentions can have counter-intuitive results?


-Prop. 36 (California):  Amends the "3 Strikes" law so that a 3rd, minor felony will not automatically result in a "25-to-life" sentence.  It also passed by a comfortable margin.

California's 3 Strikes law currently works as follows:  if an individual has two prior convictions for certain, enumerated "serious or violent" felonies (e.g. rape, assault with a deadly weapon, residential burglary, etc.), ANY third felony would automatically result in a prison sentence of 25 years to life in prison, regardless of how serious or petty the third felony is.

Many people are currently serving life sentences in California for very ticky-tacky 3rd "strikes".  For example, petty theft can be charged as a felony if the defendant has a prior misdemeanor conviction for petty theft.  If you've got two prior strikes and a misdemeanor conviction for stealing a candy bar, stealing another candy bar will land you behind bars for the rest of your natural life.

Similarly, "Commercial burglary" can also be charged as a felony.  The crime of commercial burglary is defined as "entering property, other than an inhabited dwelling, with the intent to commit theft therein".  Walking into Walmart with a plan to shoplift is commercial burglary even if you don't actually steal anything.  This means that if you have two prior strikes and you walk into a Walmart with a plan to steal a pack of gum, you might as well shoot somebody in the face because the penalty for doing so would be the same (25-to-life either way).

There are many other seemingly-petty crimes that can be charged as felonies, or even as "strikes" in certain situations.  Stealing a bicycle out of an open garage, for example, can be charged as "residential burglary", which is considered a "serious or violent crime" and can be treated as a strike.

Prop. 36 amends this hyper-rigid sentencing scheme so that ALL THREE felonies must now be "serious or violent" in order to trigger the mandatory 25-to-life sentence.  A third conviction for a minor or petty felony will no longer automatically result in a life sentence.  This common sense approach will save taxpayers millions of dollars every year in prosecution and incarceration costs.  It grants more flexibility to District Attorneys and judges and it better serves the interests of justice by making the punishment fit the crime.


-Amendment 64 (Colorado):  Amends the State Constitution to allow for the personal and recreational use of marijuana by adults 21 and older.  Directs the legislature to implement a system to regulate the production, sale, and taxation of marijuana.

Congratulations to the people of Colorado!  On Tuesday, November 6 you became the first jurisdiction in the history of the world to repeal marijuana prohibition by popular vote.  Amendment 64 represents a huge step towards finally adopting a more rational policy regarding drug use in this country.  Hopefully, your achievement will soon be mirrored throughout the western states.

Cracks have begun to appear in the great dam of prohibition.  Alcohol prohibition finally failed once states began to thumb their noses at the federal government and repealed local booze bans.  When the dominoes started to fall, Uncle Sam just couldn't afford to continue his wasteful, failed War on Alcohol.  Drug policy reformers are now mimicking the strategies that worked in the 1930s.  The strategies still work, prohibition still doesn't.

Once again, way to go, Colorado!


-I-502 (Washington):  Three short hours after Colorado passed Amendment 64, Washington voters approved I-502, effectively legalizing marijuana in that state, too.

Like Amendment 64 in Colorado, I-502 removes criminal and civil penalties for the adult possession of limited quantities of marijuana and marijuana-laced products.  It also directs the state's Liquor Control Board to draft regulations regarding licensing for growers and distributors.

I-502 generated a lot of debate and contention within the marijuana legalization community because it includes a very controversial provision regarding driving under the influence of marijuana.  Under I-502, the state will impose a threshold "per se" blood-level for delta-9 THC, marijuana's psychoactive ingredient.  Any person caught operating a motor vehicle with greater than 5 ng / ml of THC in his or her blood will be deemed guilty of "driving under the influence of marijuana".

We all agree that driving while stoned is certainly dangerous and could impair one's ability to safely operate a vehicle, but many activists and experts feel that the 5 ng / ml limit is arbitrary, ridiculously low, and really not based on any reliable science.  Most studies indicate that a person would remain well above that level for 12-24 hours after smoking.  If you take a toke before bed, you could be arrested for DUI while driving to work the next day.  Daily smokers would almost never fall under the legal threshold to drive a car.

It will be interesting to see how this all plays out!  Watch for updates as the feds almost certainly sue to prevent the full implementation of Amendment 64 and I-502.

Excuse Me, I Didn't Order This Turd Stew: CA's Convoluted Medical Marijuana Laws Get Weirder

My loyal readers will recall a post that I wrote in January of this year, entitled "Turd Stew Clarity on the Way?".  In it, I optimistically wondered aloud whether or not our court system would soon grace us with some clarity on California's medical marijuana laws and the myriad issues surrounding their implementation.  So far, the answer has been a resounding "no".

It remains the position of this blog that marijuana prohibition causes more harm than the drug itself.  The plant is safer than Tylenol, for christsakes.  All logic aside, however, the War on Drugs continues.  California's medical marijuana dispensaries have become the latest battleground in this war.

As discussed in prior posts, one major issue that cities and counties have grappled with is how to regulate and control the proliferation of storefront marijuana shops that have sprung up in residential communities, near schools and in concentrations thick enough to blight entire neighborhoods.  Towns across California have tried a variety of strategies: arresting operators and accusing them of illegal drug sales, using municipal ordinances to ban dispensaries from all or parts of the city, using code enforcement actions to shut down offenders, and even requesting DEA assistance.

Long Beach had a unique approach to regulating the proliferation of dispensaries.  It used a lottery system, whereby hopeful operators paid astronomical fees for the privilege of the application.  15 lucky winners of the lottery were granted licenses to operate storefront dispensaries in the city.  A fellow named Pack who did not win a license (and was, therefore, barred from operating a dispensary within the city), sued Long Beach, claiming that their licensing system was illegal and was preempted by federal laws.  Federal law flatly criminalizes any marijuana use or sale and trumps any inconsistent state or local laws.  Since Long Beach's licensing system essentially granted permission for 15 operators to violate federal laws, the entire licensing system was found to be void by an appellate court.

Think about what that means: since marijuana is illegal federally, cities may not attempt to regulate the proliferation of storefront pot shops (what?).  Pot-friendly cities may simply decide not to devote city resources, i.e. police, to shutting the clubs down, thereby creating a de facto local "legalization", or else they may ban clubs entirely, but they may not place restrictions on the clubs, and they definitely can't issue licenses.

As the Pack case slowly wound its way through the courts, the City of Long Beach replaced its licencing system with a flat prohibition on all storefront marijuana dispensaries.  By the time the case finally reached the CA Supreme Court this week, the entire issue was moot because the law in question no longer exists.  No sense in arguing about something that doesn't exist anymore.  Case dismissed.

So where does this leave us?  On first glace, you'd be tempted to say that the appellate decision stands and that cities may not attempt to regulate the proliferation of storefront pot shops (what I call "the all-or-nothing approach").  But, like most things in the law, it's more complicated than that.  See, a legal case can only be cited to as a precedent if the case has been ordered "published".  "Unpublished" cases have no value as precedent and cannot be cited to in future cases.  The appellate decision in Pack was briefly published, but it automatically became unpublished by operation of law when the Supreme Court decided to hear it.  After the SC rendered its decision to throw out the case entirely, it never specifically ordered that the appellate decision be re-published.  That appellate decision, therefore, has exactly zero value as a precedent today and cannot be cited to.

...and so we're right back where we started, just looking down at this steaming bowl of turd stew that we didn't order.

Vigilante Justice, Part II: The Citizen's Arrest

Update:  http://latimesblogs.latimes.com/lanow/2012/08/lancaster-residents-help-nab-suspected-serial-burglar.html  This article was posted in today's Los Angeles Times.

I had so much fun with my previous post on "Vigilantism and the Law" that I've decided to devote a series of posts to some of the legal issues surrounding vigilantism.  For part II in my series, I've chosen to write a little bit about the legalities of the "citizen's arrest".  As a case study, I've selected a recent incident that took place aboard a subway train in Brooklyn, New York (*Disclaimer:  I am licensed to practice law in California, but not in New York.  Legal analysis of the subway incident will apply CA law, even though I understand that it did not occur in CA).  Today's course materials are available for your viewing pleasure here.

Here's the factual scenario: Around 9:30 PM on Friday, July 13, two women followed a young man as he boarded a train car at Brooklyn's Lorimer station.  They were pointing and yelling at the man, who they accused of sexually assaulting them on the train platform moments before the doors of the train car opened.  The women demanded that he exit the train and wait for police to arrive. Other passengers quickly joined in and helped the women physically drag the suspect from the train. Bystanders restrained him until arresting officers arrived.

This is the classic, textbook example of the "citizen's arrest".  By definition, a citizen's arrest occurs when a private person (rather than a police officer) takes another person into custody on suspicion of having committed some crime.

In the year 1872, the California State Legislature bestowed upon us sections 837, et seq., of the California Penal Code.  That series of laws provides a system by which non-sworn, private citizens may lawfully detain and arrest their peers if certain conditions are met.  Under PC 837, a citizen may arrest a suspect in any of the following situations:

-When the private person has actually witnessed a suspect commit or attempt to commit any crime (felony or misdemeanor) in his or her presence,
-When the person being arrested has actually committed a felony (regardless of whether or not it occurs in the presence of the arresting citizen), or
-When a felony has actually been committed (regardless of whether or not it occurs within the presence of the arresting citizen) and the person making the arrest has reasonable suspicion to believe that the suspect committed it.

"The person making the arrest must, on request of the person being arrested, inform the latter of the offense for which he is being arrested" (PC 841)

Penal Code section 839 further provides, "Any person making an arrest may orally summon as many persons as he deems necessary to aid him therein" ("Hey, y'all, help me hold this guy!"). 

It gets even better.  "To make an arrest, a private person...may break open the door or window of the house in which the person to be arrested is, or in which they have reasonable grounds for believing the person to be, after having demanded admittance and explained the purpose for which admittance is desired." (PC 844)

...And if you get locked INSIDE a suspect's house while making a citizen's arrest, PC 845 says that you may break open a door or window if necessary to get OUT.  Apparently, there was a time when California must have had a real problem with private citizens becoming trapped inside the homes of people that they had been attempting to arrest because the arresting citizen was reluctant to break down the door for fear of legal repercussions.  This problem must have become so dire that the legislature felt it necessary to pass a law authorizing such entrapped citizens to break doors or windows to escape.

Sworn peace officers DO enjoy a few more protections than the average man-on-the-street when making arrests, however.  For example, a peace officer cannot be held personally liable in a civil suit for false arrest if the officer acts with "reasonable cause" to believe that the arrest is lawful. You and I do not enjoy this qualified immunity.  If you or I attempt a citizen's arrest and we nab the wrong guy, we can expect to get sued.  Peace officers may also use "all necessary means" of force to effect arrests in certain limited situations, whereas private citizens may only use "such restraint as is reasonable".

Now, let's take what we've just learned and apply it to the above-mentioned subway incident. When the camera starts rolling, the two female victims have just witnessed a crime occur in their presence.  They had been sexually assaulted and they were attempting to restrain the suspect until police could be summoned.  Unfortunately for the women, they were physically unable to restrain the man because of his relative size and strength.  Fortunately for the women, however, Penal Code section 839 permitted them to summon "as many persons as [they deemed] reasonably necessary to aid [them]" in effecting the arrest.  They hollered and other subway riders sprung into action.  Several men physically dragged the suspect onto the train platform and held him until subway police responded to the scene and took the man into custody.

One thing that immediately jumped out at me about the incident is the surprising lack of force used to effect the arrest.  Several men grab the suspect by the torso and neck, but I did not see the degree of violence that might be expected in a "lynch mob-type" environment such as this. The suspect is manhandled and thrown to the ground, where he is restrained by strangers, but I could not discern a single punch thrown or any sign that excessive force was applied.  My impression was that the arresting citizens employed only a "reasonable" degree of restraint and did not apply anything near "excessive force".  As always, please feel free to comment and to tell me that I'm an idiot if you disagree.

Thanks for reading! Stay tuned for more fun and exciting legal news and analysis.  And remember, if you or a loved is arrested (by police or citizens), call us for a free attorney consultation.  (714) 505-2468.  Ask for John.

Orange County Criminal Defense Attorney

Vigilantism and the Law

Vigilantes have been part of the American social and legal landscape ever since a group of farmers faced down the Redcoats at Concord and Lexington.  From the posses of the Old West to the lynch mobs of the Post-Reconstruction South, bands of armed individuals have shaped American history for better or for worse.  Driven by the idea that government is unwilling or unable to enforce the law, Americans have historically done so themselves.

Vigilantism takes many forms today, from self-appointed border watchers like the Minutemen to Neighborhood Watch volunteers.  Vigilante "justice" has recently grabbed headlines with sensational stories like that of George Zimmerman and Treyvon Martin.  After much reflection, however, I've decided not to devote this post to a legal analysis of Zimmerman's defense for a couple reasons.  The foremost reason that I've decided not to write about George Zimmerman is simply because the basic facts of that case are still unknown.  It's impossible to thoroughly dissect the legal intricacies of such a complicated matter when there are still so many moving parts.  Accounts of Treyvon Martin's death vary so wildly that any analysis would be more speculative than illuminating.  The other reason that I chosen not to devote this post to George Zimmerman is that I simply don't have anything profound to say that hasn't already been said.

Instead, I've decided to devote this post to the story of the unnamed Texas father who beat to death Jesus Mora Flores, 47, after he caught Flores in the act of raping his 5-year-old daughter.  The facts of the case seem to be well-established and corroborated by several witnesses.  On June 9, the 23-year-old father was helping a friend perform some farm work in the town of Shiner, Texas (famous for Shiner Bock Beer).  The father had sent his 8-year-old son and his 5-year-old daughter to perform a chore.  The son returned shortly later and reported that a man had taken the 5-year-old.  After a search of the farm, the girl's screams led the father to a barn, where he encountered Flores in the act of sexually assaulting the young girl.  Using only his bare hands, the 23-year-old man beat Flores about the head and neck.  Emergency responders found Flores with his pants and underwear around his ankles.  He was declared dead shortly thereafter.  Medical exams confirmed that the girl had been sexually assaulted.

Local prosecutors referred the case to a grand jury, which declined to indict the father last week.

It's hard to find fault with the father's actions from a moral standpoint, but what about legally?  How does / should the law treat this form of vigilantism?

At first glance, the father appears to have at least 2 compelling defenses to a potential murder charge.  The strongest likely defense would be that of self-defense.  Self-defense falls under the umbrella of "necessity" defenses.  An otherwise-unlawful act is justified by "necessity" when the defendant can convincingly show that his act prevented some greater harm and that the act was absolutely necessary (i.e. that no other course of conduct was available to prevent the same harm).  The legal doctrine of "self-defense" is not limited to situations where the actor actually defends himself; self-defense may be claimed when the actor acts in defense of others who are unable to defend themselves, such as here.  Generally, the degree of force used must be proportional to the threat and may not exceed the degree which is reasonable necessary to avoid the greater harm.  For example, one would not be justified in using deadly force to repel a simple assault or some minor crime.

Let's look at how self-defense applies in this situation:  Since the young girl was actually facing imminent harm, any adult would have probably been justified in using the necessary degree of force against her attacker.  After that, it gets murky.  How much force is justified?  One punch?  One blow of a baseball bat?  One shotgun blast?  If the attacker died of a single punch to the head, the father's act would almost certainly be legally justified.  If, on the other hand, the father stomped on the attacker's face after witnesses claim the attack had already ended, self-defense would probably not be found to apply.  Assuming for the sake of discussion that the father used more than the necessary degree of force to stop the attack, he might choose to employ another defense strategy.

Rather than self-defense, the father might argue a defense based on lack of capacity to form criminal intent.  This is sometimes referred to as "temporary insanity" or "adequate provocation".  The crime of murder requires the prosecutor to prove two elements: 1) that the defendant killed another human, and 2) that the defendant acted with "malice", otherwise known as "criminal intent" or "mens rea".  In extremely rare situations, it can be argued that a defendant was so provoked that he cannot be held legally responsible for his response to the provocation.  He was so blinded by rage, for example, that any reasonable person in the same circumstance would have been helpless to control himself and would have reacted similarly.  If he is found to have acted without the mental faculties to understand his actions as he committed them, then he acted without criminal intent and he is not guilty of the crime of murder.

This strategy is rarely used and even more rarely successful, for obvious reasons.  Any indication that the defendant thought before acting negates the entire defense.  The textbook example involves the husband who comes home from work and finds his wife in bed with the neighbor.  If the husband goes to his gun safe, removes his largest-caliber revolver, loads it and shoots the neighbor, he is probably guilty of murder since he had a very brief "cooling off" period in the time that it took him to fetch and load the gun.  If he simply beats the neighbor to death with the bedside lamp, he might have a shot at trial.  Moral of the story: never think before acting.

For discussion of a third possible defense, see "The Wild and Wonderful World of Jury Nullification", below.

Stay tuned for more exciting news and analysis as interesting vigilante stories arise this summer.  Maybe I'll start a "Vigilante Mini-Series" if I can dig up more compelling stories of citizens taking the law into their own hands.  As always, I'm open for suggestions.

What Can an Expungement Do for Me? Glad you asked.

In 1935, the California Legislature enacted section 1203.4 of the Penal Code, establishing the legal groundwork for our expungement process.  Since then, individuals who have been convicted of crimes now have a procedure for cleaning up their criminal records by demonstrating reformation and continued good conduct.

An expungement essentially dismisses a case against you AFTER you've successfully served all penalties, including payment of all fines and court costs.  An expungement will not completely erase the fact that you were ever arrested and charged with a crime.  Rather, it retroactively changes your "guilty" plea to "not guilty".  After your petition is granted, your conviction will show up as a dismissal on a court records search.   

Generally, in order to be eligible for the benefits of 1203.4, a petitioner must meet the following criteria:

1) You must have successfully completed probation for a felony or misdemeanor.

If you were sentenced on a misdemeanor or infraction and not given probation, you must wait one year from the date of your conviction or your release from custody, whichever came later.

If you were sentenced to prison on a felony and not given probation, you are ineligible for an expungement, but you may qualify for a gubernatorial pardon.

2) You must not have any other open / pending cases and you must not be on probation or parole in any other matters.

3) You must pay the $120-150 filing fee.

That's it.  Not terribly complicated.  There is usually no argument involved.

There still seems to be a lot of confusion surrounding expungements, and some valid debate over their actual value.  One popular misconception is that an expungement will "seal" your record, or completely erase any mention of the fact that you were once convicted of a crime.  As mentioned above, not so.  Even after your petition is approved, anyone who understands criminal law in California will STILL be able to see that you were arrested, convicted and that you later paid $120.00 for an expungement.

An expungement will not restore firearms rights.  If you've ever been convicted of any felony or certain misdemeanors, you may not be eligible to own or possess firearms.  An expungement will not have any effect on this.

An expungement will not have any effect on sex offender registration.  There is a procedure for having yourself removed from the Megan's Law website and from the statewide Sex Offender Registry, but a 1203.4 petition is not it.

If you ever apply to become a police officer, you're still going to need to disclose any conviction that has been expunged.  The same goes for applications to the State Nursing Board.  If you win the lottery, they're also interested in expunged convictions for some reason.

Finally, an expungement has no effect on any DMV actions against your driver's license.

So what's the point?  Why on Earth would anyone go through the process of expunging their old convictions if the conviction will STILL be a public record and they STILL won't be allowed to carry firearms?

The best reason to expunge old convictions is to improve your job prospects.  In California, it is unlawful for a prospective employer to discriminate against an applicant based solely on criminal charges that have been dismissed.  In fact, it's illegal for them to even ask about convictions that have been expunged.  If you read the fine print on most job applications, you'll notice that they probably ask about felonies and misdemeanors.  It also probably says that you need not disclose any conviction that has been dismissed pursuant to PC 1203.4.  If an old "Drunk in Public" ticket is standing between you and your dream job, an expungement might be right for you.

As mentioned above, there is usually no argument involved in 1203.4 hearings.  The issue is (usually) limited to whether or not the petitioner has successfully complied with probation for the entire term thereof and whether or not the petitioner has remained law-abiding.  If so, the petitioner has earned the expungement.  If the petitioner has NOT complied with probation or has NOT remained law-abiding, then he or she has NOT earned the expungement.  Judges do have some discretion to grant expungments where they have not technically been earned, but it usually takes a VERY compelling reason to convince them to do so.

The most common reason that expungement petitions are denied is for failure to successfully complete all of the terms of probation.  Typically, the court will deny an application if fines are still owed or if the petitioner has not completed a court-ordered program (e.g. CalTrans, Community Service, etc.).  If court records show that some term of probation is still outstanding, the DA will oppose the petition and the court will schedule a 1203.4 hearing to hear argument.  Argument is limited to whether or not probation was successfully completed.  If your petition is scheduled for a hearing, bring all of your documentation with you when you come to court.  You might be asked to prove that you have actually done all of the things that you were ordered to do.  It is very common for the court to lose or misfile paperwork so you'll want all of your receipts to show the judge that you paid your fines and took your classes as ordered.

As always, the smartest way to start the process is by speaking with an attorney.  A qualified criminal defense lawyer can at least tell you whether or not you're eligible for 1203.4 relief before you invest too much time, effort and money into the process.  When in doubt, call me for a free consultation. 714 449-3335. I'll look up your record and review any paperwork before I accept a dime from you.  As much as I want to take your money, I won't do so unless I can actually help.

Restore Accountability - Support the Fullerton Recall

Update: On June 5, 2012, Fullerton voters overwhelmingly chose to clean house.  All three council members facing recall were shown the door.  "Yes" votes outnumbered "No" votes on the recall by a margin of 2-1.  Travis Kiger, Greg Sebourn and Doug Chaffee will replace F. Dick Jones, Pat McKinley and Don Bankhead.  Congratulations, Fullerton!

Fullerton, California has grappled with an abject failure of leadership over the past decade or so.  For many of us, the tipping point came with the beating death of unarmed homeless man Kelly Thomas on July 5, 2011 (for more details regarding Kelly's murder at the hands of the Fullerton Police Department, see previous posts).

Kelly's death and the subsequent cover-up are not the only reasons that Fullerton needs a change of leadership, they're just the straws that broke the camel's proverbial back.  Below, I've outlined several reasons that F. "Dick" Jones, Pat "McPension" McKinley and Don Bankhead need to go.

The Death of Kelly Thomas

Unless you've been manning the Space Station for the past year, you're probably familiar with the details of Kelly's murder.  In brief, he was detained by the Fullerton Police Dept. on July 5, 2011 on suspicion of burglarizing parked cars.  During the encounter, Officer Manny Ramos became frustrated that Kelly had difficulty complying with his orders, at one point stating "See my fists? They're getting ready to fuck you up".  Kelly tried to run but he was quickly taken down with batons and tasers.  In the beating that followed, Kelly sustained mortal injuries.  He died after being removed from life-support 5 days later.

Councilman (and former Chief of Police) Pat McKinley later bragged about having personally hired the officers involved in the beating.  Here is on CNN defending the killers.  While council members Bruce Whitaker and Sharon Quirk-Silva were quick to condemn the actions of these rogue cops, McKinley, Jones and Bankhead did everything in their power to try to excuse the inexcusable.  Whitaker and Quirk-Silva bravely and publicly called for the release of all relevant information regarding the investigation, including the city-operated surveillance tapes.  The Three Blind Mice (copyright Friends for Fullerton's Future) dragged their feet and downplayed the egregiousness of the officers' wrongdoing.  When DA Tony Rackauckas announced that 2 of the cops involved would face criminal charges, Jones called it "a tragedy for the officers".  Bankhead, also a former Fullerton cop, has consistently refused to take any action that might be contrary to the interests of his bosses within the Fullerton Police Officer's Assn.

Despite the Fullerton Police Department's well-documented track record of misconduct (see fullertoncops.com), the 3 council members facing recall have each done their part to resist meaningful reform.  They are each so utterly dependent upon campaign funding from the cops' union that they no longer represent the interests of the citizenry.

The FPD has lost our faith and the 3 Spent Cartridges have chosen to side with their union bosses over the electorate.  Go to the polls on June 5 and let them know how you feel about that decision.

Illegal Water Tax

Article XIII D, section 6(b) of the California State Constitution prohibits local governments from charging utility rates which exceed the costs of actually delivering the utility.  Basically, the city government may not profit by selling us water.

Of course, building and maintaining a water delivery infrastructure is expensive.  There are reservoirs, pumping stations, main pipes, administrative costs, etc.  Cities may (and most do) contract with a third party to actually deliver the water, and then pass those costs along to ratepayers in the form of a "franchise fee" on their water bills.  This is legal.

The City of Fullerton does things a little differently.  Since the city actually owns all of the water delivery infrastructure, there is no "franchise fee".  To offset the costs of water deliver, the city simply imposes a 10% surcharge onto our water bills, known as the "in-lieu-of-franchise-fee" (hereinafter, the "ILFF")

The revenue generated by the ILFF is then siphoned from the city's Water Fund and reallocated to the General Fund (coincidentally, the same fund that is used to pay council members' generous pensions).  It quickly becomes apparent why the council has a vested interest in assuring that this revenue stream keeps flowing.  Pun very much intended.

The problem is twofold: 1) The 10% figure is purely arbitrary.  It's a big, round number that someone pulled out of the air because it was easy to calculate.  It does not accurately represent the actual costs of water delivery.  2) It appears on its face to be an illegal, revenue-raiser.

Since the council has become dependent on milking the ratepayers to fund their own pensions, they have no incentive to provide any accurate audit of the actual costs of water delivery.  According the city's internal review (not conducted by CPAs in accordance with any GAAP), the true costs of delivering the city's water hovers somewhere around 6.7 % of the total cost rather than the previously-assumed 10 %.  This 6.7 % includes the costs that city pays to itself to rent office space in buildings that the city owns (huh???).  Accepting the generous 6.7 % figure, the city has overcharged water users by about $27,000,000.00 since 1997.  This money has been diverted from its intended purpose (maintaining and rebuilding our crumbling infrastructure) and redirected into the pockets of the city's leaders and public employees unions.

Something We Can All Agree On

Liberals and Conservatives, Progressives and Libertarians can all agree that Fullerton needs a change at the top.  Our police department has abused our most vulnerable citizens with impunity.  Spending is out of control while critical infrastructure crumbles.  The elected leaders continue to line their own pockets with generous pensions while the ratepayers are bilked on water fees.  Our representatives on the City Council have been bought and paid for by public employees' unions.  They work for their union bosses, not for us.

On June 5, vote for change.

The Ins and Outs of the Insanity Defense

Itzcoatl Ocampo has dominated the headlines here in Orange County since his arrest on January 13. Ocampo, 23, is suspected in the stabbing deaths of 6 people, including 4 homeless men.  He is a former U.S. Marine who served one tour of duty in Iraq.

Based on some of the statements that he made to investigators immediately following his arrest, legal experts are predicting that his defense team will argue that Ocampo was legally insane at the time he committed the murders, and therefore not guilty.

The "insanity defense" is often misunderstood and rarely successful, making it perfect fodder for another one of my ever-enlightening blog posts.

The idea that a criminal defendant could be found "not guilty" based on some cognitive defect has its roots in ancient law.  For our purposes, we'll skip ahead to the year 1843, when modern courts first defined the concept of "legal insanity".  The now-famous case of Daniel M'Naughten involved a Scottish woodcutter who killed an aide to the Prime Minister of England.  At trial, it was determined that Mr. M'Naughten was so mentally ill that he could not be held legally responsible for the crime of murder.  There, the court first introduced a simple but rigid standard that would be used to determine whether a suspect was "insane" or just weird.

The M'Naughten Rule laid out 2 grounds under which a defendant could be found to be legally insane.  If, at the time of the offense, the defendant a) did not understand that the act was wrong, or b) did not appreciate the nature and quality of his acts, then he was insane.  Pretty straight-forward and highly rigid.

The M'Naughten Rule remained the standard by which sanity was determined for about 100 years.  By the 1950s, though, advances in medical sciences and psychiatry led legal scholars to loosen the definition of insanity.  Under what came to be known as the Durham / New Hampshire Rule, a defendant could be found insane if his actions were the "product" of a mental illness or defect (that the criminal behavior would not have occurred but for the mental defect, even if the defendant fully understood the nature and consequences of his acts at the time he committed them).  This shift threw open the doors to a whole new class of individuals who were suddenly considered "insane" under the law.

The Durham / New Hampshire standard remained largely in effect from the 1950s-1980s, until a young man named John Hinckley shot an old man named Ronald Reagan.  At Hinckley's trial, it was determined that he suffered from a number of psychotic delusions, but also that he understood the nature and quality of his acts and that shooting U.S. presidents was bad.  Under the old M'Naughten Rule, he would have been convicted because he did not meet either of the criteria for insanity under that standard.  Under the new Durham / New Hampshire Rule, however, Mr. Hinckley was clearly insane because the attempted assassination was the "product" of his delusions.  John Hinckley was found "not guilty by reason of insanity".  Hinckley was committed to a psychiatric hospital, where he remains to this day.

Hinckley's acquittal caused a huge backlash against the Durham / New Hampshire Rule, which was perceived as too lenient towards defendants.  Since 1984, most states have moved back to something more resembling the old M'Naughten test.  In California, for instance, the burden of proof is now on the defendant to prove by a preponderance of evidence "that he or she was incapable of knowing or understanding the nature and quality of his or her act and of distinguishing right from wrong at the time of the commission of the offense" (Penal Code section 25).  Juries are further instructed that they may consider any of the defendant's behavior before, during and after the commission of the offense as tending to show the defendant's mental condition at the time the crime occurred.  For example, if a defendant ran from police, juries may consider that behavior as evidence that the defendant understood what he did was wrong.

Ocampo's trial will be an interesting one for anyone interested in the mechanics of an insanity defense.  His defense team will try to show that their client was so damaged and detached from reality, possibly due to his experiences in Iraq, that he could not understand the wrongness of killing strangers.  The fact that each victim had been stabbed 40-50 times suggests that the defendant was, in fact, a truly damaged individual.

The defense of insanity is extremely unlikely to succeed in this case, as the defense team must understand, for several reasons.  Chiefly, prosecutors will show that Ocampo meticulously planned each killing.  He stalked his victims and avoided capture for several weeks.  He admitted to detectives that he followed the investigation by reading the Orange County Register and even intentionally drove through a police dragnet as part of his research.  Ocampo was finally captured by a bystander who witnessed the final killing.  The Good Samaritan chased Ocampo as the suspect threw the weapon and shed clothing.  All of these behaviors indicate that he understood the nature, quality and wrongness of his acts.

Some showing of Post-Traumatic Stress Disorder might spare this Marine his life at the sentencing phase, but I'll be shocked if he beats the case by reason of insanity.

Fullerton: Come for the Nightlife, Stay for the Abusive Police

Recently, it seems that Fullerton, CA has become a shining beacon of police corruption.  Kelly Thomas put the town on the map (and the international news), but he's not alone among the long and growing list of those unfortunate enough to cross paths with Fullerton's Finest.

This week, we've added two more chapters to the story that just won't end.

Ofc. Vince Mater was finally charged with vandalism and destruction of evidence for his role in the custodial death of Dean Gochenour.  Gochenour, 52, was arrested around 9:45 PM on April 14, 2011 on suspicion of DUI.  Mater transported Gochenour to the FPD's jail, where the suspect was turned over to jailers for booking.  Some time around 11:30 PM, Gochenour's lifeless body was discovered hanging inside his holding cell.  Immediately upon learning of the death, Mater allegedly destroyed his department-issued Digital Audio Recorder (DAR), which would have contained audio recordings of his encounter with Gochenour.  According the DA's press release, Mater smashed the device against a steel door at the police station and removed the circuit board to ensure that nothing on the tape would ever see the light of day. Mater is not accused of murdering Gochenour and nothing indicates that he was personally responsible for the death.  Rather, it appears that Mater ignored repeated comments made by Gochenour indicating that he intended to kill himself. 

Mater is due in court on March 26 for his arraignment. 

Interesting side note:  Mater had previously been identified by the OCDA's Office as a "Brady Cop".  A Brady Cop is a police officer whose credibility has been so tarnished that he cannot be relied upon to testify truthfully at trial.  Once an officer is tagged as a Brady Cop, his or her value is basically reduced to that of a paperweight with a generous pension (and a gun).   

Our second story of the week actually involves an LAPD officer who made his home in Fullerton, presumably because of town's affinity for crooked cops.  Sgt. Joshua Jinwook Chong, 41, is facing a felony charge for making criminal threats against an ex-girlfriend, as well as two misdemeanor charges related to making harassing phone calls. 

Salvador Hernandez of the OC Register writes:

According to prosecutors, Chong sent several text messages to the woman on Oct. 17, 2011, in which he threatened to kill a male friend of hers. Later that night, he called her and allegedly threatened to kill her.


The woman decided to stay at a friend's home, and Chong is accused of calling her more than 25 times on Oct. 17, 2011, and the following day.

The woman reported the incident to the California State Fullerton Police Department, and Chong was arrested the same day.

Chong is out of custody after posting $50,000 bail.

...and Fullerton's proud history of police corruption grows a little longer.  Stay tuned for updates as they become available.  

Turd Stew Clarity on the Way?

It's been an exciting couple weeks in the world of medical marijuana.  I've been so busy trying to save the world that I've neglected some of these updates.  Well, here they are:

As previously discussed, California's medical marijuana laws (affectionately referred to on this blog as "turd stew") are a jumbled mess of inconsistent, contradictory and nebulous codes and statutes.  While this author strongly supports ending all marijuana prohibition, it has become increasingly clear that the MMJ system here in the state is in serious need of some urgent legislative attention. 

To recap: California voters overwhelmingly approved Prop. 215 back in 1996.  That measure allowed seriously ill Californians to use, possess and cultivate their own marijuana with a doctor's recommendation or approval.  A few years later, that law was expanded upon with SB420.  SB420 allowed for the creation of patient collectives, whereby groups of MMJ patients could pool their resources and skills to help each other gain access to their medicine. 

Since the passage of SB420, storefront collectives have sprouted like weeds (pun intended), creating a whole new set of unintended consequences and unforeseen legal issues.  Interestingly, SB420 makes no mention of the word "dispensary".  The authors of SB420 never foresaw storefront retail outlets opening in such concentrations.  They could not have imagined the multi-billion-dollar industry that medical marijuana has grown into. 

Cities and counties have grappled with how to control these new dispensaries using their zoning powers.  Court battles have raged between municipalities and patient collectives.  Recently, the feds have joined in the proverbial fray using the DEA to raid local pot shops and to threaten owners of buildings who lease space to MMJ dispensaries. 

In late December, CA Attorney General Kamala Harris sent a letter to the state's legislature asking for clarification on the legality of the state's hundreds (if not thousands) of storefront marijuana dispensaries.  Even California's top attorney doesn't know whether or not state law allows for the operation of storefront marijuana retail centers.  If she can't even wrap her head around the law, there's not much hope for the rest of us. 

In the last week, the CA State Supreme Court has agreed to hear 4 cases related to the unresolved legal issues surrounding medical marijuana.  Their decisions could finally grant some clarity to the area, or they could muddle things even more than they're already muddled. 

First, the court has agreed to hear an appeal out of Riverside.  The Riverside County Board of Supervisors voted some time last year to ban all MMJ dispensaries in the county.  Plaintiffs are a group of dispensary owners who are challenging the authority of municipalities to issue such blanket prohibitions. In a related case, plaintiffs in Upland are challenging a local ordinance there that mimicked the language of the Riverside statutes.

The State Supreme Court has also agreed to take on the Pack decision, previously discussed on this blog.  In Pack, a state appellate court struck down Long Beach's licensing system that the city used to regulate local dispensaries.  There, the lower court struck down the city's entire licensing system, finding that Long Beach had no authority to sanction an activity that was illegal under federal law. 

Finally, the High Court will review a lower court's ruling that tossed out a lawsuit brought by an individual against the City of Dana Point.  In that case, a medical marijuana user brought suit against the city for interfering with his access to his medication.  The trial court initially dismissed the case, finding that individual medical marijuana users lacked "standing" to sue, and that only a dispensary owner could bring such a claim.

Stay tuned for updates! It looks like 2012 is going to be an exciting year for medical marijuana law.

In bold defiance of SOPA and PIPA, photo stolen from the LA Times. 

Introducing SoCal's Newest Law Firm

I'm proud to announce the foundation of SoCal's newest law firm, The Law Offices of John W. Bussman.

After a couple great years of service at Rizio & Nelson, including a stint heading up that firm's criminal department, I've decided to hang a shingle and venture out on my own into the exciting world of criminal defense practice.

I thank Rizio & Nelson for taking a chance with me over the past couple years, as well as for their continued support.  Our firms will continue to work closely together and I will continue to recommend them very highly to friends and family.

The Law Offices of John W. Bussman has convenient locations in the counties of Orange, Riverside, San Bernardino and Los Angeles.  Our experienced, local attorneys handle all criminal matters, including DUI, drug crimes, violent crimes, fraud / identity theft, sex offenses and probation violations. 

Don't go it alone.  The criminal justice system can be overwhelming.  If you or a loved one is accused of a crime, our attorneys will stand by your side through this difficult time.  We will do everything within our power to help resolve your case on the most favorable terms possible.

If you're under investigation for a possible crime, contact us BEFORE the situation gets out of control.  We will work with investigators and prosecutors to try to resolve the matter without the filing of criminal charges.
If you or a loved one has already been convicted of a crime, ask me about cleaning up your criminal record with an expungement.  We can evaluate your case before we accept your money to help you determine the likelihood of success. 

We offer affordable payment plans for any budget.  Call for a free consultation. 

(714) 505-2468
(951) 683-4613
(909) 885-8090
(562) 464-0048