Wednesday, December 18, 2013

Public Nudity & Indecent Exposure in California: Everything You Never Wanted to Know


The laws regarding public nudity and indecent exposure in California seem to generate a lot of confusion and misconceptions.  Something about nudity makes people very uncomfortable and stokes all kinds of legal myths.  Some of the questions that I hear most often are:

-I was cited for public urination.  Will I be charged with indecent exposure?
-I got caught engaging in some lewd conduct in the locker room at my gym.  Will I be required to register as a sex offender?
-Is it indecent exposure for a woman to expose her breasts in California?
-Is it indecent exposure to "moon" people in California?

I'd like to take this opportunity to clarify some of this confusion and to help you understand your rights when it comes to getting naked in public.

In California, PC 314 makes it a misdemeanor to willfully and lewdly expose your genitals in a public place or in the presence of another person who is likely to be annoyed or offended by the display.

The law sounds pretty straight-forward upon first glance.  As with most things in the law, though, it's more complicated than it appears.  Let's break down the elements of "indecent exposure" to determine what sort of behavior does or does not meet its statutory definition:

-"Willfully":  The prosecutor must prove that the defendant exposed himself on purpose and that he intended to direct public attention to his genitals.  If you forget to zip your fly and you can't figure out why people on the street are giving you funny looks, you haven't "willfully" exposed yourself and you're not guilty of the crime of indecent exposure.

-"Lewdly":  The prosecutor must prove that the defendant "intended by his conduct to direct public attention to his genitals", and that he "acted for purposes of sexual arousal, gratification, or affront". Mere exposure is not enough to sustain a conviction unless the sexual motivation is proven beyond a reasonable doubt.  For example, nude sunbathing at a nude beach, "mooning" traffic as a prank, or urinating between parked cars is not necessarily "lewd" unless the defendant acted with the intent to sexually gratify himself or others.

-"Expose":  As its name implies, the crime of "indecent exposure" requires that the person actually expose himself.  In the case of  People v. Massicot (2002) 97 Cal. App. 4th 920, a defendant was tried for violating PC 314.  He had allegedly lifted his robe to expose flesh-colored women's underwear and a lace bra that he was wearing.  The court found him "not guilty" because he had not actually exposed himself -- underwear isn't enough, even if it's lacy, women's underwear.

-"Genitals":  A conviction for PC 314 requires that the defendant actually exposed his or her genitals.  This does not include the buttocks or breasts.  That's right -- in California, displaying bare female breasts in public does not constitute indecent exposure.  As the court famously ruled in Robins v. Los Angeles County (1967) 248 Cal.App.2d 1, "Display of bare female bosom...does not violate state law, is not regulated by the state and does not constitute criminal sexual activity". Groups such as gotopless.org and FEMEN have recently made headlines around the world for their efforts to protect the rights of women to appear topless in public, and I applaud these heroes.

-"In a public place, or in the presence of another person who is likely to be offended or annoyed":  This is one area where the law gets tricky.  It's sometimes difficult to determine whether or not a particular place qualifies as "public".  For example, if a defendant exposes himself to an undercover cop in a park bathroom during hours that the park is closed to the public, is he "in a public place"?  Does the undercover vice cop qualify as a "person who is likely to be offended or annoyed"?  What about standing in front of an open window and exposing yourself to passing pedestrians?

Courts have determined that the law does not require prosecutors to prove that the defendant was actually in a public place. He can be convicted of indecent exposure if he exposes himself anywhere to a person who is in a public place and who is likely to be offended by his nudity.  The law also does not require the DA to prove that victim actually saw the defendant's genitals, or that the victim was offended -- only that another person was present and that the other person was likely to be offended or annoyed.

As mentioned above, indecent exposure is usually treated as a misdemeanor in California, but there are some exceptions.  It can be treated as a felony if the defendant exposes himself after entering an inhabited building without the consent of the owner (if you break into someone's house and expose yourself to the occupants).  Indecent exposure will also be treated as a felony if you have a prior conviction for indecent exposure or for committing lewd acts with a minor.

A conviction for indecent exposure in California carries mandatory, lifetime registration as a sex offender.  Of course, this designation may prevent a person from getting a job or holding various professional licenses and could earn you a spot on the Megan's Law website.

Potential defenses to indecent exposure charges may depend on the unique circumstances of your case and your criminal history.  A knowledgeable criminal defense attorney can review the evidence to determine the strengths and weaknesses of the allegations against you.  Once we know what we're up against, we can work with you to ensure that you understand your options and that your rights are preserved throughout the process.  Even in cases where our clients have admitted that they exposed themselves to strangers in public, we have had success in negotiating pleas to reduced charges that do not carry mandatory sex offender registration.

If you or a loved one has any questions about the laws regarding public nudity or indecent exposure in California, call our office for a free attorney consultation.  (714) 449-3335.  Ask for John.

Thanks for reading.

Orange County Indecent Exposure Lawyer

Thursday, December 5, 2013

Update: Week 1 of the Kelly Thomas Murder Trial

I had an opportunity to sit in on part of the Kelly Thomas murder trial this morning, currently underway in Department 40 of the Santa Ana Courthouse.

Kelly Thomas is the mentally ill homeless man who was beaten to death by the Fullerton Police in July of 2011.  Officer Manuel Ramos is accused of murder and manslaughter in the case.  Corporal Jay Cicinelli is accused of manslaughter and excessive force.

So far, prosecutors have presented the case chronologically, in the order that events transpired on the evening of July 5, 2011.  The district attorney presented the synchronized audio / video that captures Kelly's last moments.  The audio recording of the confrontation includes threats of violence that Ramos directed at Kelly.  Those threats, the DA contends, escalated an otherwise-mundane encounter into a fatal one.  Prosecutors then called various first-responders, who described the scene immediately after the beating.

Today's proceedings included testimony from Captain John Zillgitt of the Fullerton Fire Department.  He was the lead paramedic responsible for overseeing the team of EMTs who loaded Kelly into the ambulance.  He stated that Kelly was unconscious and "hobbled" when he arrived -- Kelly's handcuffs were attached to his ankles.  "There was a volume of blood matted in his facial hair", said Zillgitt.  He further testified that Kelly's heart stopped while he was being transported in the ambulance and EMTs began performing CPR on their way to St. Jude Medical Center.

Dr. Aruna Singhania, forensic pathologist with the Orange County Coroner, also testified about Kelly's autopsy.  She determined Kelly's cause of death to be "anoxic encephalopathy [lack of oxygen] due to mechanical chest compression along with blunt cranial and facial injuries".

The jury is comprised of 12 jurors, plus 4 alternates.  I could not determine which of the 4 jurors were alternates based on where they were seated.  Of the 16, 6 are male and 10 are female.  They include 1 Asian male, one Hispanic male, and one Asian female.  The rest are Caucasian (the jury is overwhelmingly Caucasian and female).  

I will continue to attend as much of the trial as I can.  There were open seats in the courtroom today.  Members of the public are welcome to attend.  The Thomas family appreciates any support.  Trial will resume tomorrow at 8:45 AM in Department 40 of the Santa Ana Courthouse.  Stop by if you're in the area.  

Stay tuned for updates as they become available.  Thanks for reading.  

Monday, November 25, 2013

I Was Arrested for DUI in Riverside, CA. What Can I Expect?

Riverside County has some of the strictest penalties for first-time DUI offenders in California.  If you're convicted of DUI anywhere in Riverside County, you're likely to receive costly fines, loss of your driving privileges, mandatory classes and at least 3 years of probation.  Unlike other jurisdictions in California, though, anyone convicted of DUI in Riverside is also likely to serve some time in custody, even for a first offense.  The time you spend in custody may vary depending on the circumstances of your case.  You might also qualify for some alternative to jail (home detention, weekends, labor, etc.), depending on a lot of factors.

Anyone convicted of DUI in California is required to attend a mandatory, 3-month alcohol education program, called "AB-541".  Riverside County has chosen to make this process more complicated than necessary.  Rather than simply allowing participants to enroll into the classes, Riverside requires all attendees to participate in a mandatory "orientation" session.  Of course, they charge a fee for this "orientation".  If you fail to schedule your orientation within 5 days of your court appearance, you'll be required to return to court for a new referral.  You could also be accused of violating your probation, which may result in more jail time.

The budget crunch in Riverside County means that more defendants are being crowded into fewer courtrooms, resulting in longer waits in less comfortable seating.  Make sure that you arrive on time to court, though.  Leave plenty of time for the security line.  If you check in late, you'll be turned away.  A warrant will be issued for your arrest and you'll have to request a new court date.

At your arraignment (your first court appearance), the judge will inform you of the charges against you.  You'll have an opportunity to either, 1) admit all the charges and resolve your case on the spot, 2) request the services of the Public Defender, or 3) request some time to speak with a private attorney.

As a private attorney, I'd recommend option #3.  An experienced, local DUI defense attorney can help you navigate the complicated process of fighting a DUI.  We provide peace of mind by helping you understand the legal procedures and your options going forward.  We can review the evidence to determine the strength of the case against you, as well as any possible defenses.  Even if you're guilty as charged, your counsel can often help negotiate a fair deal to resolve your case.  As mentioned above, there may be options available that would allow you to keep your job and take care of your family, even while serving "custody".

A private attorney can often make your court appearances for you, without you being personally present.  Save yourself the headache of appearing in court -- just send your lawyer.

If you or a loved one has been arrested for DUI in Riverside, California, call our office for a free attorney consultation.  951 683 4613.  Ask for John.  Thanks for reading.

Riverside DUI Lawyer

Friday, November 22, 2013

Give a Loved One the Gift of a Fresh Start -- Affordable Expungement Packages Now Available

Does someone in your life have a criminal conviction that's standing between them and the things they want to achieve?  Husband can't find a good job because of an old DUI?  Daughter can't get into school because of mistakes she made years ago?  This holiday season, give someone you love a gift they really need...an expungement!

As I've previously written on this blog.  An expungement is California's way of dismissing a case after someone has successfully completed serving his or her penalties.  After an expungement is granted, it's like the conviction never happened (for most purposes, some exceptions).

An expungement can dramatically improve your job prospects and your chances of holding various professional licenses or being admitted to a good school.  Give someone you love a second chance to accomplish all the things you know they're capable of.

Expungements aren't for everyone.  There are several strict criteria that a petitioner must meet in order to earn the expungement.  Specifically, it's important that the petitioner:

1) Successfully completed probation.  If probation was not granted, petitioner must wait one year from the date of the conviction.

2) Is not currently on probation in any other cases.  If the petitioner is still on probation, we might be able to help terminate probation early.

We provide free consultations to help determine whether or not you or your loved one qualifies for an expungement.  If you do not qualify, there may be other options available for you.  After your consultation, we will prepare all necessary paperwork to begin the process of petitioning for your expungement.  The documents are fairly simple, but any small error can result in a denial of the petition.  After preparing the documents, we will take care of serving those documents on the prosecutor and properly filing them with the court.  We will also appear in court on your behalf for any necessary appearances.  In most cases, you do not need to be personally present in court for these hearings (some exceptions may apply).

Call us for your free consultation at 714 505 2468.  Thanks for reading.

Kelly Thomas Trial Date Approaching


The trial of Fullerton police officers Manny Ramos and Jay Cicinelli is now scheduled to begin in Department C-40 of the Santa Ana Courthouse on December 2, 2013.  Members of the public are encouraged to attend.

Officer Ramos and Corporal Cicinelli are accused in the 2011 beating death of transient Kelly Thomas, pictured, at the Fullerton Transit Center.  Kelly was severely beaten by six Fullerton police officers on the evening of July 5, 2011.  He suffered severe injuries, including facial fractures and broken ribs.  Kelly never regained consciousness.  He died after being removed from life support five days later.

The incident was captured by both audio and video recorders.  Ramos is accused of provoking the fatal encounter by threatening Kelly with unlawful force.  At one point in the recordings, Ramos can be seen putting on latex gloves.  He says to Kelly, "See these fists?  There's getting ready to fuck you up".  As Kelly gets up and attempts to run from Officer Ramos, Officer Joe Wolfe strikes Kelly with a baton.  Wolfe and Ramos quickly take Kelly to the ground as more police arrive to assist.  Corporal Cicinelli deploys his taser several times, then begins striking Kelly repeatedly in the face with the butt of his weapon.  Six officers dog pile onto Kelly and continue their assault until Kelly stops breathing.

After Kelly lost consciousness, the officers made no effort to provide medical attention.  Even as the homeless man lay dying in the parking lot, officers prevented emergency responders from rendering aid to him.

Kelly's death helped to expose a "culture of corruption" within the Fullerton Police Department.  Several other incidents were later revealed in which Fullerton Police had used excessive force, fabricated reports, suppressed exculpatory evidence, and engaged in acts of dishonesty.  Chief Michael Sellers was forced to "resign" in the wake of the investigation.  Fullerton voters also held a special recall election, in which 3 council members were removed from office for their roles in the scandal.

The Fullerton Police Department has a long way to go if it hopes to restore the public's trust.  "Guilty" verdicts for Ramos and Cicinelli will be a crucial first step in the healing process, both for the City of Fullerton and for the Thomas family.

The defense is expected to make two key assertions.  First, they will argue that Kelly caused his own death by refusing to follow the commands of officers and by attempting to flee.  Attorneys will claim that the officers used the appropriate degree of force to restrain a violent, dangerous individual and that their force would have ended immediately upon Kelly's compliance.  Secondly, the defense will likely argue that the cause of Kelly's death cannot be determined with any reasonable degree of certainty and that some reasonable doubt must, therefore, exist.

Stay tuned for developments as they become available.  I will try to attend as much of the trial as possible.

Wednesday, November 13, 2013

Myth of the Day: Is it Really Illegal to Eat an Orange in Your Bathtub in California?

This is a persistent myth that has made its way around the internet, thanks to social media and the general willingness of gullible people to repeat asinine things that they've heard. This particular myth, though, has even been propagated by some (seemingly) credible sources, including Gerri Willis from Fox Business.  If you're still getting your news from Fox...well...there's your first problem.

Despite the countless sources that make this claim, none actually cite to any relevant statutory authority. Luckily, I was born with a rare genetic condition called "curiosity", so I decided to devote some valuable time to finding this mysterious and arcane law.  I actually did something that Gerri Willis couldn't be bothered to do -- I checked my sources.

Turns out, no such law exists in California.  Of course not.  Just think for a minute about how absurd a law like that would be.  It would obviously be impossible to enforce and it would likely be stricken down as "without rational basis".

Moral of the story: if you hear a legal myth that sounds too ridiculous to be true, it probably is. Also, Fox Business is lying to you.

If you or a loved one has questions about any other legal myths, call our office for a free attorney consultation.  (714) 449-3335.  Ask for John.

Thanks for reading.

Orange County Criminal Defense Attorney

Friday, October 25, 2013

How to Clean Up Your Criminal Record, Part II

I've previously written a post, available here, about the process for obtaining an expungement in California.  Today, I want to discuss the procedure for obtaining a Certificate of Rehabilitation & Gubernatorial Pardon.

If you read my post on expungements, you'll know that an expungement dismisses a case against you AFTER you've successfully completed probation and satisfied all terms of your sentence.  An expungement will not "seal" your record -- your criminal record will still exist and it will still be public.  Rather than showing a conviction, however, your criminal record will show a dismissal after the expungement is granted.  This allows you to honestly state that you have no criminal convictions when you apply for jobs in the future.  An expungement will not restore your right to possess firearms and will not relieve you of your duty to register as a (fill-in-the-blank) offender.

If you were sentenced to state prison in a felony case and were not given probation, then you are not eligible to apply for an expungement.  Luckily, there may be another option available to help you clean up your criminal record.

Individuals who have been committed to state prison may apply for Certificate of Rehabilitation (hereinafter, a "CR") after a specified period of time has elapsed.  Unlike an expungement, a CR will not dismiss the charges against you.  It will, however, serve as an official acknowledgement of your reformation and continued good conduct.  When prospective employers run background checks on you, they will see that you made mistakes in your youth, but also that you learned from those mistakes and that you remained law-abiding thereafter.  A CR may also improve your prospects of obtaining various state-issued licenses (e.g. to become a nurse, chiropractor, attorney, etc.).

The amount of time that you must wait before applying for a CR depends on the nature of the crime for which you were convicted.  Generally, an applicant must remain law-abiding for 7-10 years after his or her release from prison before becoming eligible to apply for a CR.  You must also show that you have resided in California for the required period, have not been incarcerated since your release from prison, and are not currently on parole or probation.

To begin the process, an applicant must file several documents with the local court.  These documents are referred to as the "Petition for Ascertainment", the "Declaration of Rehabilitation" and an "Order Declaring Petitioner to be Rehabilitated".  A judge will review the application packet to determine the petitioner's eligibility.  Aside from the factors listed above, the court is specifically looking for 4 criteria:

-Has the petitioner lead an "honest and upright" life since his or her release from prison?
-Has the petitioner conducted himself or herself with "sobriety and industry"?
-Has the petitioner exhibited "good moral character"?, and
-Has the petitioner conformed to and obeyed the laws of the land?

If the court is satisfied that you are eligible for the relief requested, the judge will sign the Order that you provided with your application packet.  Once it is signed by a judge, the Order becomes a "Certificate of Rehabilitation".  A judge has essentially declared you to be "officially rehabilitated".

The court will then send a copy of the signed Order to the governor's office, along with a recommendation that the governor grant the petitioner a full Gubernatorial Pardon.  This is done automatically, without any further requirements of the petitioner.  If granted, a GP will dismiss the charges completely, similar to what an expungement does.  Unlike an expungement, however, a GP may restore firearms rights and may even relieve some petitioners of their duty to register as sex offenders.  A GP also differs from an expungement in another key regard -- having received a pardon does not allow the pardoned person to state on a job application that he or she has no criminal convictions.  It will allow a previously-convicted felon to serve on a jury, but it will not necessarily prevent deportation.

So, that's the process in a nutshell.  There are a lot more boring details that I'd be happy to discuss with anyone who cares to ask.

If you've ever wondered about your eligibility for an expungement, a Certificate of Rehabilitation, and / or a Gubernatorial Pardon, call my office for a free consultation.

Thursday, October 10, 2013

How to Avoid Being Pulled Over for DUI

Here's a question that I hear often:  What can I do to reduce the chances that I'll be stopped on suspicion of DUI?  The short answer is, "Don't drink or use drugs before driving".  Duh.

If only it were that easy.

Though they won't admit it, cops are often under immense pressure to make a lot of DUI arrests, even if those arrests don't result in convictions.  Awards, promotions and grants are often tied to the number of arrests that an officer or a department makes in a given year, with little or no regard for the arrestees' actual guilt or innocence.  Cities make big money on towing and impound fees and police get to tout their aggressive stance against drunk drivers.  Too often, this leads cops to err on the side of making the arrest, even when the evidence is lacking.

The DA might eventually decline to pursue the case against you, but the harm may already be done.  By the time you're exonerated, you've probably had one of the worst nights of your life -- you've been handcuffed and transported the local jail, booked and photographed, thrown into a crowded holding cell full of real criminals and released some time the next day.  Good luck explaining everything to your boss and your kids.

Here are some easy steps that you can follow to reduce the chances that you'll be stopped on suspicion of DUI --

1.  Obey all traffic laws:  Breaking some minor traffic law is the #1 reason that people are stopped and arrested for DUI.  Use your turn signals, obey the posted speed limits and don't do anything to draw unnecessary attention to yourself.  Some of the rules that follow are simply reiterations of this basic no-brainer.  Remember, police don't need "probable cause" to stop you -- they only need "reasonable suspicion".  Reasonable suspicion is what it sounds like -- some set of facts that would cause a reasonable person to suspect that you might be up to something illegal.  Don't give them that reason.

2.  Ensure that your vehicle is "up to code" and in proper working order:  Are ALL exterior lights functioning?  This includes the little light above your license plate and the third brake light in your rear window.  ANY non-functioning exterior light can be cause for a traffic stop, even if the light itself is superfluous or not required by law.  It sounds ticky-tacky (and it is), but cops can and will stop you for a single non-functioning LED bulb anywhere on the exterior of your vehicle.

-Are your tags current?

-Are your windows illegally tinted?

-Is your exhaust illegally modified?

-Do you have a front license plate?

-Are you wearing your seat belt?

-If you drive a lifted truck or jeep, are your fenders up to code?

-Is your music too loud?

-Do you have objects on your dashboard or in your rear window that might be obstructing the driver's view?

-If you're smoking, don't litter with your cigarette butt (this goes for everybody at all times, not just drivers.  Seriously, some of us live here.)

These are the kinds of non-moving violations that can lead to unwanted contact with law enforcement.

3.  Don't talk on the phone or text:  This goes back to rule #1 -- don't break the law.  Even if the police don't see you using the phone, taking your eyes off of the road may cause you to "drift" or "weave".  That drifting / weaving can be misinterpreted as "impaired driving" and could be the basis for a traffic stop.

4.  Don't draw unnecessary attention to yourself:  Remember what I said above -- Cops don't need probable cause to pull you over; they just need a reason to suspect that something might be wrong.  You can be stopped even if you're not breaking any laws.  Accelerating or braking too quickly or too slowly might attract police attention, even if those acts are not necessarily crimes in themselves.  The same goes for taking turns too fast or hitting dips too hard.

5.  If you've already stopped before the police make contact with you, don't talk yourself into trouble:  Here's a situation that I see very often --

Abe and Ben are leaving the bar after having a couple drinks each.  Abe is driving Ben's car.  He's not wasted, but he's close to the legal limit.  They run out of gas on the freeway, so Abe pulls to the side of the road, makes a phone call, and waits for a friend to bring them a gas can.  After a few minutes, a CHP cruiser pulls up and the officer asks Abe if he's OK.  While speaking to Abe and Ben, the officer notices that they both smell like alcohol and appear to be displaying several objective symptoms of intoxication.  Here's where Abe makes his big mistake -- Abe tells the officer that he and Ben just left the bar and that he was driving Ben's car on the freeway when they ran out of gas.  He states that he was driving Ben's car because Ben had drank too much.  Abe denies consuming any alcohol since driving.  He further states that he smoked a small amount marijuana earlier in the day, but he's a qualified medical patient and he denies feeling any residual effects from the drug.

Abe has just convinced the officer to arrest him.  If he had simply exercised his right to remain silent, he might sleep in his own bed tonight.

If you're ever in this situation, remember that it is a crime to lie to the police.  You do not need an elaborate alibi.  Making false statements to the police can get you into more trouble than you're already in.  That being said, you don't have any obligation to incriminate yourself or to provide police with crucial pieces of evidence that will form the basis of the case against you.  You should politely refuse to answer any questions regarding where you were coming from, where you were going, whether or not you were the driver, what time you were driving, whether or not you have consumed any alcohol or drugs, whether or not you feel the effects of any alcohol or drugs, etc.  You must provide your name, driver's license, and proof of registration / insurance.  Always be polite, but never volunteer more information than necessary.

As always, be safe, be smart, but if you're neither, you know what to do.

Wednesday, October 2, 2013

Posting "Revenge Porn" is Now a Misdemeanor in California

PC 647(l) took effect in California yesterday.  That law makes it a misdemeanor to post online, distribute or otherwise disseminate nude photos of your ex.

Anyone convicted under this section could face up to 6 months in jail and a $1,000 fine for the first offense, with the penalty doubled for a second offense.

The bill, proposed by Anthony Cannella (R-Ceres), was signed by Gov. Brown and takes effect immediately.  It provides, in relevant part, the following:

"...that any person who photographs or records by any means the image of the intimate body part or parts of another identifiable person, under circumstances where the parties agree or understand that the image shall remain private, and the person subsequently distributes the image taken, with the intent to cause serious emotional distress, and the depicted person suffers serious emotional distress, is guilty of disorderly conduct."


Wednesday, July 17, 2013

Is California a "Stand Your Ground" State?

Disclaimer: I am licensed to practice law in California, not Florida.  This blog post will specifically discuss California's approach to self-defense laws.  

Update: Stevie Wonder recently told an audience in Quebec that he would boycott any "stand your ground" states.  Mr. Wonder currently lives in Woodland Hills, CA.  Somebody, please read this to Stevie.  

Since the verdict in the George Zimmerman case was announced last Saturday, "stand your ground" laws have been the subject of a lot of discussion in the news media. It should be noted parenthetically that "stand your ground" laws had absolutely nothing to do with the Zimmerman verdict -- George Zimmerman did NOT assert a "stand your ground" defense.  The phrase "stand your ground" never even arose during the trial, except when prosecutors displayed a video in which Zimmerman denied having any knowledge of such laws.  So, while it should be understood that SYG played exactly zero role in Zimmerman's acquittal, those laws still seem to be generating a lot of controversy.  Perfect blog fodder.

To understand SYG laws, you first have to understand the traditional "common law" approach to self-defense.  Under the historical British rules, the rules from which our system evolved, a person was only justified in using deadly force against an attacker if such force was truly a last resort.  If a person came under attack in a public place, he had a "duty to retreat" -- that is, he was expected to run from his attacker.  Force was only permissible in self-defense if retreating was not a viable option.  There was a major exception to this rule, known as the "Castle Doctrine".  The Castle Doctrine said that a person had no duty to retreat if he was attacked within his own home or place of business.

The trend in many modern jurisdictions, including California, has been away from the very narrow, traditional rules of self-defense.  Why should an innocent person be required to flee from a violent criminal?  If I haven't done anything wrong, I should have a right to defend myself against an attacker wherever that attack might occur.  In fact, that's exactly what the law says in California.  A person who is assaulted in California has no duty to retreat.  He may defend himself if he believes, and a reasonable person in his position would believe, that force is necessary to protect himself from an imminent threat.  We even go one step further -- the law in California says that a person who is attacked may even pursue his assailant if necessary.  CALJIC 5.50 reads:

A person threatened with an attack that justifies the exercise of the right of self-defense need not retreat.  In the exercise of his right of self-defense a person may stand his ground and defend himself by the use of all force and means which would appear to be necessary to a reasonable person in a similar situation and with similar knowledge; and a person may pursue his assailant until he has secured himself from danger if that course likewise appears reasonably necessary. This law applies even though the assailed person might more easily have gained safety by flight or by withdrawing from the scene.  

It should be obvious that SYG laws were simply irrelevant to the Zimmerman defense.  According to Zimmerman, he exited his vehicle because he lost sight of a suspicious person in his neighborhood.  At the time that he exited the car, Zimmerman had no reason to feel threatened. After walking some distance and searching for the suspicious teenager in the hooded sweatshirt, Zimmerman gave up and began walking back towards his waiting vehicle.  Martin allegedly surprised Zimmerman by punching him in the face, knocking him to the ground and beating his head against the concrete.  Zimmerman did not have an opportunity to flee once the threat began, therefore there should be no question about the propriety of Zimmerman "standing his ground". Regardless of whether or not you believe Zimmerman's story, it must be recognized that the defense simply did not rely on a "stand your ground" argument.  As noted above, the fact that Zimmerman initially exited his vehicle is irrelevant because Zimmerman did not believe that he was facing an imminent threat at the time that he did so.

The most famous "stand your ground" case in California involved a young man named Calvin Broadus, better known as Snoop Dogg.  On August 25, 1993, Snoop and his bodyguard, McKinley Lee were in a car near Woodbine Park in Los Angeles.  Snoop was driving the vehicle and Lee was riding in the passenger seat.  The men were confronted by 20 year-old Phillip Woldemariam, who was alleged to be a member of a Long Beach street gang called the "By Yerself Hustlers". Woldemariam flashed gang signs and insults ensued.  Snoop and Lee then pursued Woldemariam into the park, where Lee shot and killed the man.  Both Snoop and Lee were charged with murder. Both were found "not guilty".  The jury believed that Snoop and Lee acted in self-defense, even though they clearly had an opportunity to avoid the confrontation by fleeing (or simply by NOT pursuing Woldemariam).

Remember the outrage when Snoop was acquitted for pursuing and murdering a young, black man?  Me neither.

If you or a loved one has questions about self-defense in Orange County, Los Angeles, Riverside or San Bernardino, call our office for a free attorney consultation.  (714) 449-3335.  Ask for John.

Thanks for reading.

Fullerton Self-Defense Lawyer


Tuesday, July 9, 2013

Why Publicize DUI Checkpoints?

If you follow my Facebook page (and you should), you've noticed that I like to post warnings about local DUI checkpoints.  I'll usually give the heads-up a few days in advance whenever I discover that a local police agency intends to operate one of these dragnets.  I get a lot of feedback when I publish my warnings, mostly negative.  I've been called names and had my posts reported as "spam" or "abuse", but I won't be deterred.  My DUI checkpoint warnings should be regarded as a valuable public service, not just for commuters, but also for anyone who pays taxes, expects accountable government, and respects the principles enshrined in the US Constitution.

The 4th Amendment ensures the right to be free from "unreasonable searches and seizures".  The "reasonableness" of any particular search and / or seizure depends on the unique facts of each situation.  To determine whether or not a given search is "reasonable", the courts perform a balancing test.  On one hand, they weigh the state's interest in public safety.  On the other, they consider an individuals expectation of privacy in the given situation.  The court will consider the methods by which the search was performed and whether or not other, less intrusive means are available to law enforcement to decide whether or not a search passes constitutional muster.

Obviously, the state has a strong interest in preventing and deterring drunk driving.  Drunk driving is a major safety concern on the roads.  Alcohol is the biggest single contributing factor in fatal auto collisions.  I think we all agree on this: drunk driving is bad.  We all want to keep drunk drivers off the road.  We also want to achieve this directive in a manner that is cost-effective -- saving the most lives per dollar spent.  Along those same lines, we all want to preserve the rights and privileges that make America great.

The flip side of the coin is this:  DUI checkpoints are plainly examples of warrantless, suspicionless searches and seizures.  A typical DUI checkpoint can screen thousands of drivers in a given night. Commuters will be subjected to traffic delays and unnecessary police interrogation.  Everyone is a suspect at DUI checkpoints.  This is clearly not what the Constitution's Framers envisioned. Americans have the constitutional right to move about the country, free from unnecessary government intervention.  You don't need the cops' permission to drive down your street -- you own the street and the cops work for you.  DUI checkpoints turn this principle on its head.

To rectify the conflict between public safety and individual privacy, the US Supreme Court has provided a set of guidelines to be considered when determining the constitutionality of a particular DUI checkpoint.  Among the Court's list of factors, it ruled that:

  • Checkpoints should be publicized 
  • Checkpoints should be set up in areas where there is already a high occurrence of drunk driving and DUI-related accidents
  • Drivers should have an opportunity to avoid the checkpoint (Note: Police have gotten around this one.  If they provide some opportunity to turn away before entering the checkpoint, there will usually be "chasers" in position.  The chasers are cops whose job is to watch for anyone who avoids the checkpoint.  They will follow you until they find a reason to pull you over, imagined or otherwise.)

If the traffic delays and suspicionless interrogations don't bother you, consider the cost of these dragnets.  DUI checkpoints usually cost taxpayers about $10,000.00 to operate per night.  The funds come from various sources, including federal and state grants to local police agencies.  The checkpoints are staffed by officers on overtime.  Next time you're sitting in traffic waiting to go through one of these time-wasters, at least you'll be comforted by the fact that the cops are being paid time-and-a-half.

Of course, police unions are the most vocal lobbyists in favor of more checkpoints.  Their members get to stand around and eat catered food while getting paid extra to do safe, easy "work".  I like to call the dragnets "DUI Checkpoint Fundraisers", because I think that accurately describes their function.  DUI checkpoints don't just raise funds from state and federal grants, they also boost department coffers with towing and impound fees.  Did you forget to pay a ticket from out-of-county when you were on vacation?  Did your wife forget to mail in your insurance check?  If so, you might be surprised to learn that you have a suspended driver's license.  You'll be even more surprised when police impound your car, hold it for 30 days, and charge you thousands of dollars to release it at the end of the month.

So there are avoidable traffic delays and suspicionless interrogations that erode the public's faith in law enforcement.  There's the tax dollars being squandered on unnecessary overtime pay and the wasted police resources that aren't being utilized while the checkpoint is in operation.  Any other reasons people should avoid DUI checkpoints?  Here's one:  they simply don't catch drunk drivers.  As I mentioned above, a typical DUI checkpoint can screen thousands of drivers in a single night.  On average, though, a checkpoint will net less than 1 DUI arrest.  If the purpose of DUI checkpoints is to catch DUI drivers, then they're not working.  Just imagine if all those cops working the checkpoint had been in their cars, cruising high-DUI areas, watching for intoxicated individuals and responding to actual alcohol-related incidents.  Remember what I said above about lives saved per dollar spent?

DUI checkpoints are wasteful in every respect.  The sooner we figure this out, the sooner we can start implementing strategies that actually reduce the harms associated with DUI driving.  For my part, I will continue publicizing advance notice of DUI checkpoints in Orange County on my Facebook page.  Check back often for updates as they become available.

As always, please don't give the cops anything to do.


Monday, July 1, 2013

Fishing Regulations in California: How Not to Get Bagged

As its name implies, the California Department of Fish & Game has the responsibility of governing fishing and hunting with the state.  The DFG has the authority to author its own rules and regulations to that end.  Those regulations (written, enforced and interpreted by the DFG) carry the full weight of the law.  Any violation of the DFG's self-imposed rules can carry hefty penalties, including jail time, fines, loss of hunting / fishing privileges in the future and even forfeiture of property used in the commission of the alleged offense.  Laws on the subject are incredibly complicated and, unfortunately, ignorance of those laws is generally not a defense.

So the DFG, an un-elected, executive agency, can make up laws, enforce those laws, and decide for itself how those laws are to be interpreted?  Basically, yes.  The District Attorney and the courts play a role, but the bulk of hunting and fishing regulations in the State of California are issued by an agency that is virtually insulated from popular pressure.  The legislature also contributes to the mish-mash of gaming regulations in the state, resulting in more laws than any one man could possibly wrap his mind around.

If you or a loved one is accused of unlawful hunting or fishing in California, call an attorney with experience in defending against local hunting and fishing violations.  Luckily, you've already made the right first step.  I'm not only a criminal defense attorney, I'm also an avid fisherman here in Southern California.  When I'm not in the courtroom, you can find me ripping lips in Newport Beach, trapping lobster with hoop nets in Mission Bay, or getting my line wet wherever the opportunity presents itself.  I've even been hassled by cops for fishing in the water hazards on golf courses.

If you're going to enjoy some of the outdoor sporting activities that the Golden State has to offer, you'd better get familiar with some local regulations before your next fishing trip.  I want to share a few tips to help prevent other fishermen from accidentally (or negligently, or intentionally) running afoul of California's complicated Fish & Game Regulations.

The California coastline is divided into 7 "regions".  Each region has its own set of regulations to govern the types of fish that can be caught, permissible methods for catching various species (nets, hook & line, traps, spears, bare hands, etc.) closed seasons, minimum sizes, bag limits and maximum depths.  This post will focus on rules and regulations within the "South Coast Region", stretching from Point Concepcion to the Mexican border.  This region includes the southern portion of Santa Barbara County and all of Ventura County, Los Angeles County, Orange County and San Diego County.  The South Coast Region is home of the warmest water in the state, as well as the largest population of fishermen.  The warm water and heavy angling pressure has contributed to a unique set of challenges, both for the fisherman and the fish in Southern California.  Accordingly, the DFG has imposed specific rules to account for the specific circumstances in the waters between Santa Barbara and Mexico.  For example, it is currently unlawful to catch Dungeness Crab in Southern California, but perfectly lawful to do so in Northern, CA.  Dungeness Crab season will reopen in the South Coast Region on November 2 of this year.  It is also illegal to take Abalone from the South Coast Region year-round.

The South Coast Region is also home to several "Marine Protected Areas", or "MPAs".  Each MPA has its own strict rules.  It is the angler's responsibility to understand the location and regulations of each protected area.  Here is a link to more information regarding Marine Protected Areas within California.  Fishermen love to argue about the wisdom and efficacy of the MLPA. Many commercial anglers and sport fishermen feel that the MPAs were imposed arbitrarily or without due consideration for the local economies that depend on fishing certain waters during certain times of the year.  Conservationists, on the other hand, welcome the state action to prevent the decimation of our precious fisheries.  Wherever you come down on the MPLA, it's important to pay close attention to the locations and regulations affecting each protected area along the California coastline.  Ignore them at your own peril.

Once you've determined your region and checked for MPAs, there are even more rules to govern the various methods by which you will be fishing (from shore, from a boat or diving?)  Targeting or taking certain species of fish from boats is prohibited during certain times of year within certain regions.  Those same fish may be targeted or taken year-round if you're fishing from the shore or diving.  For example, here in the South Coast Region, it is unlawful to target or take any species of Rockfish, Cabezon or Greenlings from a boat between the dates of 1/1 - 2/28.  Shore-based fisherman and divers may target those species year-round.  Anglers may take Leopard Sharks from boats within designated bays year-round (including within Newport Bay, Los Alamitos Bay, Mission Bay and San Diego Bay). Anglers may also take Leopard Sharks from shore year-round, but Leopard Shark season is only open to anglers aboard boats outside of the above-designated bays between 3/1 - 12/31.

See how quickly these regulations get complicated?  I haven't even gotten into bag limits, size limits and maximum allowable depths for various species.  To make things even more confusing, the DFG likes to issue "In-Season Fishing & Regulation Changes", just to keep everyone on their toes. These rule changes can go into effect with as little as 10 days of advance notice to the public.

Species identification is another area that may cause confusion among novice anglers.  Here's a link to a handy illustration that can be used to distinguish among some types of fish that are commonly found near shore in California.  Notice how similar many of the rockfish species appear.  The bocaccio and chilipepper varieties look nearly identical.  The bocaccio, however, has a statewide bag limit of 2 per angler, while the chilipepper rockfish has a bag limit of 10 in the South Coast Region. It's easy to see how an innocent mistake could transform a novice angler into a misdemeanor defendant.

Accidentally violating a DFG regulation can be expensive.  Fines for minor violations start at around $500 (including all mandatory state penalty assessments and court fees).  The District Attorney may pursue misdemeanor charges over seemingly innocent mistakes (You didn't know that it's illegal to possess a halibut fillet that's less than 19 inches long?  You've never filleted a halibut before and you really botched this one?  Too bad.  That's a misdemeanor conviction on your record).  In some cases, prosecutors may even pursue forfeiture actions against violators.  They'll take your boat, your expensive gear, even the truck that you used to pull the boat if they believe that those items were "instrumentalities" used in the commission of some poaching offenses.

The intricacies of California fishing laws are obviously too complicated to fully explain in one blog post.  The short version of the story is this: pay close attention to the local rules and regulations wherever you're fishing.  If you're trying out a new stretch of coastline, always check the MPA maps first.  You don't want to accidentally wander into a protected area.

If you are accused of poaching or violating any fishing regulations, call an attorney with extensive knowledge of the rules and regulations that govern fishing in Southern California.  We offer free fish stories with every consultation.  (714) 505-2468.  Ask for John.

Keep your lines tight.

Wednesday, June 26, 2013

How Do I Get (or Fight) a Restraining Order in California?

Note: There are several different types of restraining orders in California that may be issued in various circumstances.  The process varies slightly depending on which specific type of order is involved.  For example, Domestic Violence Restraining Orders are typically heard in the family court, but restraining orders based on civil harassment or workplace violence are usually heard in civil court.  This article focuses on Civil Harassment Restraining Orders, but most of the general points also apply in cases involving domestic violence or workplace harassment.  

Starting January 1, 2016, California courts will begin issuing "Gun Violence Restraining Orders".  Follow the link for more information.  

Individuals who have suffered harassment or domestic violence in California may appear before a judge to ask for the protection of a restraining order (hereinafter, a "RO").  A RO is a civil injunction which orders the restrained party not to commit certain acts.  The person seeking the order is called "the petitioner". The person against whom the order is sought is called "the respondent".

The courts and legislature in California have intentionally made the RO application process as simple as possible. The idea was to provide a relatively straightforward procedure that would not require expensive attorneys or deter applicants who might be intimidated by a complicated legal system.  As with most things in California, though, the process actually involves a lot more red tape than anyone intended or foresaw.  Below, I'll attempt to provide a brief outline of the process for obtaining or fighting a restraining order in the Golden State.  

Under section 527.6 of the California Code of Civil Procedure, a judge may prohibit a person from "harassing, intimidating, molesting, attacking, striking, threatening, sexually assaulting, battering, abusing, telephoning... destroying personal property, contacting...coming within a specified distance of, or disturbing the peace of [another person]".  Of course, most of the things listed here are already crimes.  If your ex-boyfriend slashes your tires, for example, he is guilty of vandalism. If you had a restraining order in effect, though, he would additionally be guilty of violating that order under PC 273.6 and / or PC 166(a)(4).  Depending on the circumstances, violating a restraining order can land your ex in state prison for up to three years.  

To request a restraining order, the petitioner must first complete a series of forms, called a "Petition".  Once the petition is fully completed and properly filed with the court, a judge will determine, "by a preponderance of the evidence", whether or not the petitioner has demonstrated reasonable proof of harassment.  The judge will render decision on the TRO on the same day that the request is filed.  If granted, the TRO may remain in effect for up to 21 days.  

Within 21 days of the petition's filing, the court will schedule a hearing on the injunction.  Between the time of the filing and the date of the hearing, the respondent may file a "response", in which he explains, excuses, justifies or denies the allegations contained in the petition.  I won't go into boring details here, but there is another series of steps that must be taken to properly serve the respondent with a notice of the hearing and to provide the court with proof of that service.  

At the hearing on the injunction, a judge must determine, "by clear and convincing evidence", whether or not unlawful harassment has occurred.  The "clear and convincing evidence" required for the issuance of the injunction is a much higher standard than the "preponderance of evidence" required for the issuance of a TRO.  If a judge agrees that the respondent's behavior has constituted "harassment", then the injunction shall be granted.  It may remain in effect for up to three years.

Note: Here's one area where domestic violence restraining orders are a little different from restraining orders based on civil harassment -- in domestic violence cases, the petitioner must prove his or her case by "reasonable proof", which is a lower bar than "by clear and convincing evidence".  Also, a domestic violence restraining order may last for up to 5 years.  

Now the big question on everyone's mind:  What kind of conduct constitutes the basis for a restraining order? Obviously, the court has neither the resources nor the inclination to involve itself in every dispute that arises between people in society.  The court cannot and will not order an asshole to be polite. There are just too many assholes and not enough courtrooms (maybe that's what I'll call my book some day -- "Too Many Assholes, Not Enough Courtrooms: The John Bussman Story").  The law defines "harassment" as: "unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose.  The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the petitioner".  

Of course, many of these terms are subjective and judges often have different opinions regarding their definitions.  Parties (and judges) often disagree over whether or not a particular course of conduct serves a "legitimate purpose".  Similarly, the definition of "substantial emotional distress" varies wildly from one courtroom to another.  This ambiguous language can make restraining order hearings a little unpredictable.

Generally, the court is looking for a pattern of behavior that involves violence or threats of violence, and that would cause a reasonable person to fear for his or her safety.  At these hearings the judge is asking himself, "Why should the taxpayers be involved in your dispute?  I understand that your neighbor is a jerk, but why is that society's problem?".  When ROs are denied, it is usually because the petitioner has failed make some showing of harassment, has failed to prove the alleged harassment by clear and convincing evidence, or has failed to demonstrate that harassment is likely to occur in the future.  ROs may also be denied where the petitioner has failed to provide proof to the court that the respondent has been properly served with a notice of the hearing.

If granted, a restraining order usually orders a respondent not to do something that he didn't want to do anyway.  Example: your neighbor files a restraining order because he claims he's afraid of you.  You maintain that you haven't committed any harassment, but you decide that you're not going to waste your time and money to appear at the court hearing.  This RO, even if granted, really won't effect your life either way, right?  Wrong.  A restraining order is a public record, meaning that prospective employers will see it.  Being the subject of a restraining order will negatively impact your job prospects and could disqualify you from holding certain licenses.  Also, you may not possess firearms while you are the subject of a restraining order.  If an order is granted against you, you will be ordered to sell your guns to a licensed dealer or surrender them at the local police station. Further, you could be subject to arrest for violating any provisions of the order.  That's a headache you don't want or need.  

If you're accused of violating an existing restraining order, there may be defenses that you aren't even aware of.  Often, defendants accused of restraining order violations simply plead guilty without speaking to an attorney because they assume that the case is fairly open-and-shut.  That's not always true. Defenses to restraining order violations usually turn on technical defects with the order or with some aspect of the process. These are issues that only a trained criminal defense attorney can spot and use to your advantage.  

If you've been the victim of harassment, you've been served with a notice that someone is seeking a restraining order against you, or if you're accused of violating an existing restraining order, call my office at (714) 449-3335 for a free consultation.  Ask for John.  We have experience on both sides of restraining order cases.  Showing up to court prepared, accompanied by an experienced attorney can increase your chances of success.

For more information about restraining orders in California, including some tips and advice to help you prepare for your day in court, see Part 2 of this series, available here.  When you're done with that, check out Part 3, which includes some answers to frequently asked questions.

Orange County Restraining Order Attorney

Thursday, June 13, 2013

Scam Alert: Rip-Off Artists Pose as Law Enforcement Charities

CNN recently teamed up with the Tampa Bay Times to compile a list of the 50 Worst Charities in America. The investigation revealed host of "non-profit" organizations that spent exorbitant sums on fundraising and salaries compared to the amounts actually spent on performing charitable work.  Many of the worst offenders have raked in millions, while spending less than 1% of their revenue on the cause for which they were founded.

After reviewing the list, I was surprised at how many of the scams involved charities that supposedly benefit law enforcement organizations.  By my count, about 20% of the most egregious rip-offs were perpetrated by groups with names like "The American Association of State Troopers", or "The United States Deputy Sheriff's Association".  The "Disabled Police Officer Counseling Center", for example, only spent 0.1% of their funds on counseling for disabled police.  If you donated $100 to help injured cops receive treatment, a whopping 10 cents of your donation actually went towards that cause.

The sheer scale of these scams is staggering.  A major source of the problem can be traced to the cozy relationship between the "charities" and the for-profit fundraising groups they employ.  Over the past decade, the "International Union of Police Associations, AFL-CIO" reaped $57.2 million in donations.  Of that $57.2 million, they paid out $41.4 to for-profit solicitors.  During that same period, they spent $286,000 directly on charitable aid.  In case you don't have a calculator handy, that's about a 145-to-1 ratio of fundraising-to-charitable activity.

Think twice before you donate to any pro-law enforcement group (or any unverified "charity", for that matter).  Even groups with official-sounding names and endorsements are often nothing more than fundraising machines.  Unfortunately, very few of those funds ever make their way to the people who need them most.  Do the research and demand to see financial disclosure statements before you sign that check.  Don't be fooled by any scammers claiming to represent law enforcement groups.


Thursday, June 6, 2013

Sovereign Citizenship as a Legal Defense?


"Sovereign Citizenship" is the latest rage among the tin foil hat-wearing crowd.  Put plainly, "SC" is the (totally false) belief that an individual may simply declare himself "sovereign" and, therefore, not subject to the laws of the land in which he lives.

Adherents to this nonsensical belief typically subscribe to a complicated set of right-wing conspiracy theories, sprinkled with plenty of pseudo-legal jargon and a healthy dose of crazy.

Online scammers have made themselves rich by peddling "Sovereign Citizen Handbooks" and manuals that purport to teach readers "how to unsubscribe from the system and protect yourself and your estate from public exploitation".  According to one such scammer, "Standard law books are written in a code that typically confounds the common man.  So, rather than waste your precious time digging up case law and code to protect yourself from predatory government agents or dishonest lawyers, we've done it for you."

More and more frequently, courts are encountering "self-represented litigants" who insist on making (totally specious) arguments bathed in SC theory.  Until recently, these cases usually involved debt collection or foreclosure actions.  The "sovereign citizen", acting as his own attorney, would claim in open court -- and with a straight face -- that he was immune from the court's authority because he is a nation unto himself.  He is, therefore, "sovereign" in the same way that Mexico and Canada are "sovereign".  Usually citing some imaginary secret language hidden within the Uniform Commercial Code, the sovereign citizen would argue that his creditors or the government actually owed him money.

While the legal theories surrounding the SC movement should strike most rational adults as laughable, the basic idea simply refuses to die.  In fact, SC-based legal defenses seem to be gaining popularity within the criminal courts.  In the past few weeks alone, I have personally observed several self-represented defendants attempt, however unsuccessfully, to defend themselves by relying upon some extremely silly sovereign citizen arguments.

Here are some of my favorites.  Remember, these are not based upon any actual laws.  If you attempt to defend yourself by citing to these arguments, you will lose.  Don't blame me, but here they are:

-If the prosecutor, judge and police officers refuse to provide a defendant with copies of their Oaths of Office, they lack the authority to prosecute (or preside, or testify, or whatever the sovereign citizen imagines) and the case must be dismissed.

-If the flag flown in a courtroom has gold fringe around its edges, then it is not a "legal" American flag.  An American flag which incorporates a 4th color (yellow) actually represents no nation or constitution.  Since the flag in the courtroom is legally improper, the entire court loses any authority over the defendant and the case must be dismissed.

-If an individual denounces his American citizenship, he may form his own country, along with all of the rights and privileges that statehood encompasses.  This includes the right to design one's own license plate and to issue a driver's license to one's self.  An individual carrying a self-issued driver's license may drive on public streets without insurance or registration.

If each of the above arguments strikes you as outrageously silly, then congratulations; you have probably graduated from the 2nd grade.  These arguments obviously appeal to a special breed of ignorant, desperate, paranoid, Glenn Beck-watching fruitcake.  Of course, these very people are disproportionately over-represented within the crowded halls of the Superior Court.

For more information about the sovereign citizen movement, visit the Southern Poverty Law Center's website.

Thursday, May 16, 2013

AB 473: Turd Stew's Worst Enemy


State Assemblyman Tom Ammiano (D - San Francisco) recently introduced a bill in the state legislature that could finally bring some clarity to the convoluted mess surrounding California's tangled medical marijuana laws.  This blog regularly refers to CA's current MMJ framework as "turd stew", because it's murky, it's unappealing, and it's not what any of us ordered.

As previously discussed here, California voters overwhelmingly approved Prop. 215 (commonly referrred to as the "Compassionate Use Act", or "CUA") in 1996, which exempted "qualified patients" from most marijuana-related laws.  Those protections were extended in 2003 under SB 420 (also known as the "Medical Marijuana Program", or "MMP").  The MMP allowed patients to "collectivize" in order to help each other procure their medication.  MMP "collectives" quickly evolved into storefront dispensaries that served walk-in "patients".

As dispensaries proliferated over the following decade, cities and counties struggled with many unforeseen effects of marijuana's quasi-legal status.  In the absence of adequate zoning regulations, fly-by-night dispensaries sprung up (often without business licenses) in apartment buildings, near schools and in other sensitive locations.  Neighbors complained about crime, traffic, noise, odors, and related concerns.  Without any sort of legal oversight or inspection process, growers stole electricity by circumventing electrical meters.  Unpermitted outdoor grows contaminated waterways and damaged sensitive fish spawning grounds.  Meanwhile, patients had no way of knowing if their cannabis was tainted with pesticides (or actual pests), mold, etc.

Cities and counties experimented with various methods of controlling the heretofore unchecked proliferation of storefront dispensaries.  As previously discussed on this blog, the city of Long Beach implemented a lottery system, whereby applicants paid huge fees for a chance to win one of a limited number of "dispensary licenses".  Other cities imposed zoning restrictions or prohibited the shops altogether.  Californian patients were left with a mishmash of local laws that varied wildly from town to town.

Ambiguities within the existing laws were filled in by the courts, sometimes with contradictory results.  Consequently, there is still very little agreement in California today over what the various laws actually mean.  This is, in a nutshell, how we achieved today's current state of "turd stew" -- just a big, steaming bowl of something we don't even recognize.

As if things weren't bad enough already for Californian medical marijuana patients, enter the DEA.  The Obama administration began an aggressive new policy of targeting medical marijuana collectives in 2011.  Publicly, the Justice Department stated that it would not go after any clubs that were in "clear and unambiguous compliance with state laws".  Unfortunately, NOBODY is in "clear and unambiguous compliance" with CA law because nobody understands what CA law actually is.  As a result, every clinic in CA is subject to a federal raid at any time.  This has created a climate of fear and uncertainty among dispensary operators and patients.

Fortunately, help could finally be on the way.  Assemblyman Ammiano, longtime friend of the decrim community, has introduced a prescription that could help alleviate MMJ's growing pains.  His proposed law, AB 473, would allow the state's Department of Alcohol Beverage Control (the "ABC") to create reasonable rules and regulations to more uniformly govern the cultivation and distribution of medical marijuana.  The bill would impose uniform fees and taxes upon businesses engaged in the sale of marijuana.  Proceeds derived from those fees would be deposited into a "Medical Marijuana Fund", which would then be used to administer and enforce the law.  The ABC would be charged with ensuring the safety of cannibis provided to patients, as well as preventing harmful cultivation practices and the diversion of marijuana for non-medical uses.

Quintin Mecke, former spokesman to Assemblyman Ammiano, recently told the Huffington Post that the DEA was using the lack of statewide regulation as a justification to enforce a crackdown on local cannabis clubs.  Said Mecke, "If we create regulations, we've removed every reasonable explanation on their part to justify the crackdown."

CA NORML and other patient groups have unanimously endorsed the proposed bill.  Medical marijuana advocates hope that new regulations will ensure safe access to medical cannabis while helping to reduce or eliminate many of the negative effects that dispensaries have had on communities and preventing future hostile action from the DEA.


The bill is slowly winding its way through committee now.  It cleared a major hurdle in April when the Committee on Public Safety voted to recommend its approval.  The bill now goes back to the Committee on Appropriations for further amendments and analysis of the law's fiscal effects.

AB 473 has the potential to create a huge impact on CA MMJ law by ensuring public safety and reducing many of the harms currently associated with the medical marijuana industry.  We can expect a long, arduous fight as this bill works its way through the legislature.  Police unions have joined forces with the California District Attorneys Association to aggressively lobby against the proposed legislation.  Of course, the law enforcement industry will always oppose any common sense approach to marijuana policy reform.

It's too soon to guess whether AB 473 will ever even make it to the floor of the Assembly for a vote.  When (if) the bill ever makes its way out of committee, there remains the chance that amendments, riders, addenda and "tweeks" will render the legislation unrecognizable.  That's what makes this whole process so exciting!

Stay tuned for updates as they become available.  Thanks for reading.

Wednesday, May 15, 2013

What's the Difference Between "Robbery" and "Burglary"?

Update: This story was taken from the LA Times this morning, May 20, 2013.  Notice that the author refers to "robbers" and their plans to "rob" a car.  At the end of the article, the writer notes that both subjects were booked on suspicion of "burglary".  Someone doesn't follow this blog. 

Robbery and burglary are both theft-related crimes, but they should not be confused with each other.  I hear news broadcasters screw this one up all the time, e.g. "Robbers entered the vacant business around 4:30 AM and made off with inventory before police were able to respond to the building's silent alarm system", "Two homes in the Fullerton area were robbed while the occupants were away on vacation", or "Robbers are now using credit card scanners to steal your personal information while you're not even aware it's happening".  These fictitious news stories actually describe burglaries and thefts, but not robberies.

The distinction between "robbery" and other forms of theft is fairly simple and should not be cause for confusion.  Unfortunately, this distinction still eludes many in the news media -- people who have allegedly been trained to speak precisely and to accurately convey facts to the rest of us.

Put simply, robbery involves the taking of property from a person, "accomplished by means of force or fear".  The crime of robbery typically involves beating a victim and making off with the victim's wallet (taking of property accomplished by force), or sticking a gun into someone's face and demanding that a victim hand over his watch and jewelry (taking of property accomplished by fear).

Burglary, on the other hand, is the crime of entering property with the intent to commit theft.  Burglary can involve entering a person's home with the intent to steal that person's stereo (residential burglary), or breaking into a business to steal a safe (commercial burglary).  Note: since the passage of Prop. 47, entering a commercial business during normal business hours with the intent to commit theft is no longer included within the definition of "commercial burglary". 

If you come home from the movies and you find that thieves have broken a window to your garage and stolen your TV, you have been the victim of a burglary.  If thieves enter your house while you are home, tie you to a chair and beat you while they ransack the place, you have been the victim of a robbery.

I hope that answers all the questions you never cared to ask.  From now on, let's pay close attention to the definitions of the words we use, especially if we're in the business of accurately conveying information to the public.  Thanks for reading.

Tuesday, May 14, 2013

Freshly Squeezed Legal Analysis



OJ Simpson is in a Nevada courthouse this week to argue that his kidnapping and robbery convictions should be overturned.  The appellate brief outlines 22 separate grounds on which the judge may find that OJ's trial was flawed.  The major point raised on appeal, and the point I want to focus on here, is OJ's claim of "Ineffective Assistance of Counsel", or "IAC" for short.

As we all remember, OJ Simpson was arrested in 2007 on suspicion of several robbery and kidnapping-related offenses.  He was accused of leading a group of men who entered a hotel room to demand the return of some memorabilia from a collector.  OJ claimed that the items had been stolen from him and were his rightful property.  During the confrontation, two members of OJ's group brandished firearms while OJ threatened the collector.  He was convicted of 10 felony counts the following year and was sentenced to 33 years in prison.  OJ will become eligible for parole in 2017 after serving at least 9 years in custody.

OJ's new legal team will now argue, among other claims, that the former USC standout did not receive a fair trial because his former attorney acted incompetently.  The 6th Amendment to the US Constitution assures that criminal defendants have the right to assistance of counsel.  Over the years, that assurance has been interpreted by the courts to mean "effective" assistance of counsel, not just a warm body to sit at the table next to the defendant.  Whenever a criminal defendant is represented by a licensed attorney, that attorney is presumed to be competent and "effective".  The very heavy burden of proving IAC, then, falls on the appellant (the person seeking to overturn his conviction).

In order to prove IAC and win a retrial, the appellant must prove 2 things:

1) That the attorney's conduct fell below an "objective standard of reasonableness", and
2) That, but for the attorney's unprofessional conduct, there is a reasonable probability that the outcome of the trial would have been different.

These two elements are called the "Strickland Standard", because they were first elaborated in the case of Strickland v. Washington466 U.S. 668 (1984).  The argument is raised often on appeal because everybody sitting in jail blames his or her attorney.  IAC claims are rarely successful, though, because of the very high burden of proof that is placed upon the appellant.  

The first prong of the Strickland test requires the appellant to prove that his attorney's conduct was "objectively unreasonable".  This requires some showing that the attorney either acted under some actual conflict of interest, or else that his conduct was so outrageous that NO competent attorney ANYWHERE would EVER engage in such unprofessional behavior.  The court will generally afford great deference to an attorney's strategic, game-time decisions and will not second-guess a lawyer's judgement calls just because those decisions turned out poorly.  Attorneys often take calculated risks that don't obtain the results we had hoped for.  This is the legal equivalent of pulling your goalie toward the end of the game -- risky, but not necessarily crazy if there is some articulable explanation for taking that risk.  The appellate court will not find IAC just because, with the benefit of hindsight, we now know that a particular strategic decision was a bad one.  


If the court finds that the first prong is satisfied and that OJ's former attorney, John Galanter, acted extremely unprofessionally, the analysis doesn't end there.  Now we move on to the second prong.  Did Galanter's bad decisions really affect the outcome of OJ's trial?  Remember, it's not enough just to show that your attorney acted in an "objectively unreasonable" manner.  The appellant must also show that, if his attorney had demonstrated basic competence, there is a good chance that the appellant would be on the golf course and not in a jail cell.  This is harder to prove than it sounds.  Courts have denied IAC claims even where defense attorney was drunk during the entire trial, where the attorney slept while the prosecutor cross-examined the defendant, and where the attorney suffered from delusions and mentioned his delusions during opening remarks.  In those cases, courts found that the attorney did, in fact, commit unprofessional conduct, but that the conduct probably did not affect the ultimate outcome of the trial.  

We'll be watching closely to see how this all plays out.  If we've learned anything from history, it should be that legal analysts are almost always wrong when the Juice is in the backfield.


Did John Galanter commit some unprofessional misconduct?  If so, did that misconduct actually affect the outcome of OJ's trial?

Stay tuned for updates as they become available.  Thanks for reading.

Monday, April 15, 2013

Popular Myths Surround the Origins of "420 / 4:20 / 4/20"



I hear a lot of questions and myths around this time every year regarding the origins of "420".  While this isn't exactly a legal question, it is a question that "OC's Premier Marijuana Defense Attorney" should be able to answer, so I did the research.  

Whether expressed as a 3-digit number ("420"), a time ("4:20"), or a date (4/20), the number has become synonymous with marijuana.  It is often used to identify head shops and marijuana dispensaries.  Affixing one of these stickers to your rear bumper can also be a handy way to attract attention from police.  

As the number gains popular recognition as a "code" for marijuana, myths regarding its origins have also spread like weeds (bad pun intended).  I've taken a moment here to dispel a few of the most common and persistent 420 origin myths.

-420 is the Penal Code designation (or police radio code) for "smoking in progress":  Not even close.  Section 420 of the California Penal Code actually prohibits anyone from "preventing or obstructing entry upon or passage over public lands".  Most marijuana crimes are defined by sections 11357, et seq. of the Health & Safety Code.  According to my research, there aren't any states that use section 420 of their penal codes for anything remotely related to marijuana.

-4/20 is Hitler's Birthday: True, but completely unrelated to the date's popularity among hippies and stoners.

-4/20 is the anniversary of the Columbine shootings: Again, true.  And again, completely unrelated to the date's significance.  April 20 was a stoner holiday well before two latch-key kids went tragically mad and murdered their classmates.

According to Steven Hager, editor of High Times Magazine and consummate authority on marijuana culture, the code actually began with a small group of teenagers from San Rafael High School in the city of San Rafael, California.  According to Mr. Hager's legend, the friends referred to themselves as "The Waldos" because they were known to hang out at a particular wall on campus.  One day in the Fall of 1971, the Waldos devised a plan to scour the Point Reyes forest for an abandoned marijuana crop that they had heard about.  They would meet at 4:20 pm near a campus statue of Louis Pasteur to begin the hunt.  The time was chosen because all of the Waldos were athletes.  They would meet after practice, but early enough to ensure ample daylight for the search.  The plan even had a secret code name: "4:20 Louis".  Somehow, this code was eventually shortened to simply "4:20" or "420".  The Waldos never found the crop, but they did contribute to marijuana culture in way that none of them could have imagined.

One of the remaining Waldos, "Steve", explained the early use of their code to the Huffington Post"I could say to one of my friends, I'd go, 420, and it was telepathic. He would know if I was saying, 'Hey, do you wanna go smoke some?' Or, 'Do you have any?' Or, 'Are you stoned right now?' It was kind of telepathic just from the way you said it.  Our teachers didn't know what we were talking about. Our parents didn't know what we were talking about."

In the early '70s, the Grateful Dead were spending more of their time in the Marin hills and away from the Haight neighborhood of San Francisco.  By chance, several of the Waldos developed close personal and business relationships with the band.  The high school friends hung out backstage and attended rehearsals with Jerry, Phil, Pigpen, Mickey and Bob.  Once the code caught on among deadheads, it quickly spread around the world.  

By the early '90s, High Times used the number regularly in their publications.  It soon gained worldwide recognition within the festival scene and around college campuses.  Some time in the mid '90s, park rangers noticed that unusually large and exuberant groups of campers were filling campgrounds during the weekend of April 20.  Rangers wrongly assumed that the crowds were somehow related to early Earth Day celebrations.

Today, the number is as recognizable as the Coca Cola logo.  It is no longer an effective code word for high school students.  Cops have figured it out.  Even your parents know what it means.  Maybe it's "high" time for some new lingo.  Any suggestions?

Please be safe this weekend.  Before you celebrate, designate.  Most importantly, though, hold onto my number.  (714) 449-3335.  Our office has an excellent record in defending against all types of drug charges.  If you or a loved one is accused of a crime involving drugs, you need a lawyer with expertise in drug defense.  I understand the issues that typically arise in drug cases and how to use those issues to your advantage.  We offer free consultations and affordable payment plans.  

Thanks for reading.

Santa Ana Marijuana Lawyer

Wednesday, April 10, 2013

CA Court Rules: U Can't Touch This [Cell Phone While Driving]


An appellate court in Fresno recently took up the question of what it means to "use" a cell phone while driving.

Section 23123 of the California Vehicle Code reads as follows:

A person shall not drive a motor vehicle while using a wireless telephone unless that telephone is specifically designed and configured to allow hands-free listening and talking, and is used in that manner while driving. (Section 23123.5 specifically addresses texting while driving).

The facts of the case were undisputed: Steven Spriggs, the appellant, had been cited for using his phone's map application while driving.  In January of 2012, Mr. Spriggs was stuck in a traffic jam caused by road construction.  He reached for his iPhone and pulled up the map application to check traffic on alternative routes.  A highway patrolman spotted Mr. Spriggs holding the phone and glancing at the device's screen, and  Mr. Spriggs was cited for violating VC 23123 -- "using" a wireless telephone while driving.

Mr. Spriggs appealed his traffic citation on the grounds that he was not "using" a phone, he was simply looking at a map.  The legislature, he argued, intended to prohibit electronic communication, not map glancing.  It would be more distracting, but perfectly legal, to unfold a Thomas Guide while driving.  Why should a small, digital map be treated differently than a large, paper map?  The court was unmoved.

Citing the legislative history of the statute, the court found that "the primary evil sought to be avoided was the distraction the driver faces when using his or her hands to operate the phone.  That distraction would be present whether the wireless telephone was being used as a telephone, a GPS navigator, a clock or a device for sending and receiving text messages and emails...If the Legislature had intended to limit the application of the statute to 'conversing' or 'listening and talking', as appellant maintains, it could have done so."

Did you hear that?  The court found that you may be cited for using your phone as a clock while driving.  Even glancing at the time on your phone is now punishable by a $159 ticket (a $25 fine + court costs, mandatory state penalty assessments, etc. = $159+).

On the bright side, the state should be closing its massive budget deficit any day now...