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. Washington, 466 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.

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

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...

Can I Legally Film the Police in California?

Update:  Gov. Brown signed SB 411 into law on 8/11/15.  This bill specifically states that the act of filming police in public is not illegal and should not be the basis for arresting or detaining a person.  SB 411 does not create any new rules, but merely affirms and restates existing law.  For more information, click here.  

The simple act of filming police while they perform their official duties is protected by the First Amendment. The recent proliferation of cheap, ubiquitous video cameras has had a major impact on the way police do their jobs.  Cops know that any contact with citizens can quickly go viral on the internet, for good or for bad. Police are more likely to act professionally when they know that they will be held accountable for their actions.  So film away, post it to Youtube, get a million hits and become an internet celebrity.  If the cops give you any shit, tell them I said it was OK. 

The right to film the police has been consistently affirmed by the courts, most recently in the case of ACLU v. Alvarez, 679 F.3d 583 (2012).  There, the ACLU successfully won an injunction to prevent enforcement of an Illinois eavesdropping statute.  The law prohibited any recording of any conversation unless all parties consented to the recording, regardless of where the conversation occurred or whether the conversation was clearly audible to the public.  The ACLU regularly monitors police activity in Chicago to deter and document official misconduct.  They argued that the Illinois law unconstitutionally prohibited them from documenting public conduct, thereby infringing upon their right to free speech.  The Federal Appellate Court agreed.  

People get themselves into trouble, though, when "filming the police" becomes "interfering with police".  As discussed above, you have a right to document the cops.  In fact, please do.  You do not have a right, however, to waste their time.  Police are paid by the hour.  Their salaries come from our taxes.  When you waste the cops' time, you waste everyone else's tax dollars.  That being said, you may not delay, obstruct or interfere with official police conduct in any way.  When you stick a camera in a cop's face, believe me, he is itching for a reason to take you to jail. Section 148(a)(1) of the California Penal Code gives him the authority to do so if he believes that you are making his job more difficult or more time-consuming than necessary.  

I spoke with a few current police officers (who wish to remain nameless) while researching this piece.  I got the impression that each of them understood and respected the constitutional right to film official public conduct. Like most people, though, cops do not appreciate anyone making their jobs more difficult than necessary. Unlike most people, these guys carry both guns and badges. Piss off a fry cook and you might get a loogie in your hamburger.  Piss off a cop and you might BE a hamburger.  Here are some helpful tips that they offered for anyone who wants to film the police without being beaten and thrown in jail:

-Do not interfere with their official duties.  The rest of these rules are basically different ways of reiterating this first commandment. 

-Stay out of their way.  They need space to do their jobs.  If you crowd them, them will "feel threatened", and we know what happens when cops "feel threatened" (see previous posts re: Kelly Thomas).  

-Don't ask them a bunch of questions while they are trying to work.  Don't complain about how they're doing their jobs, and don't tell them that they're using excessive force.  Document it, get it on film, and complain to their supervisors later, but always remember the first rule.  

-If you intentionally provoke the police, don't be surprised if you get the reaction that you're looking for.  Maybe have someone else hold the camera for this part.  

If you or a loved one is hassled for filming police (or arrested for interfering / resisting), call my office at (714) 449-3335 for a free consultation.  Ask for John.  

Good luck out there and thanks for reading.  Remember, don't give the cops anything to do.

Orange County Resisting Arrest Attorney

Fullerton Police Step Up DUI Enforcement

Downtown Fullerton, Orange County's happenin' hot spot for DUI arrests, is heating up.  The FPD has announced plans to take DUI enforcement to the next level.

The Fullerton Police Department recently received a pair of massive grants from the State of California to fund an aggressive new crack-down on drunk driving.  The funds total nearly $200,000.00, with $50,000.00 of that money earmarked for a series of 5 DUI checkpoints.  The remaining $140,000.00+  will be used to fund 90 nights of saturation patrols in the downtown bar area.  The patrols supposedly consist of 2-man teams who comb the streets for suspected drunk drivers.  By my math, that equals $10,000.00 per checkpoint and $1,550.00 per saturation patrol.  

The illustrious FPD has also finally acknowledged the existence of their long-suspected "court sting operation" program.  This is a deal where plain-clothed officers hang out at the Fullerton Courthouse.  They watch for defendants who have had their licenses suspended, then they follow the defendant out to his car.  If their subject gets behind the wheel, they promptly cite him for driving on a suspended license.  Oldest trick in the book, but it still works.  There's nothing unconstitutional about this practice, it just reeks of bored cops.  

Be careful out there, folks.  Don't give the cops something to do.  

Orange County Lawmaker Proposes New Rules for Stoned Driving

Updated June 12, 2013: Correa's proposed law, SB 289, died in committee without any action by the State Senate.  A crucial deadline has passed.  The bill will, therefore, not be heard by the Assembly.  Thank you to all who took the time to tell your State Senators to keep their hands off of medical marijuana. 

State Senator Lou Correa (D - Santa Ana) has introduced new legislation that would create a zero-tolerance "per se" law for driving under the influence of any drug classified in schedules I, II, III or IV of the Controlled Substances Act.  This means that it would be a crime (DUI, to be exact) for ANY person (including qualified medical marijuana patients) to operate a motor vehicle in the State of California with ANY measurable amount of ANY drug in his or her system, regardless of whether or not that drug actually impaired the driver's ability to safely operate a car.

As previously discussed on this blog, a typical "alcohol" DUI includes 2 counts: the "a" count and the "b" count.  The "a" count is the crime of driving a car while "impaired" by drugs, alcohol, or the combined influence of drugs and alcohol.  To be guilty of the "a" count, the DA must prove that drugs, alcohol or their combined influence rendered you "unsafe" to drive a car, regardless of the actual levels of drugs or alcohol in your system.  It is already illegal in California to drive a car while dangerously stoned -- or dangerously impaired by any drug for that matter.  I have defended individuals who were accused of driving while "impaired" by chemotherapy drugs.

The "b" count is the crime of operating a car while your blood-alcohol concentration (BAC) is greater than 0.08 % -- this is called the "per se count".  Obviously, in the typical DUI case, the defendant is guilty of both the "a" and the "b" counts because he is unsafe behind the wheel AND his BAC is > 0.08 %.  A stoned driver is guilty of only the "a" count if he is impaired by marijuana and his BAC is less than 0.08 %.

Marijuana DUIs are obviously tricky, therefore, because there is no legal limit to define when a person is too stoned to drive.  Prosecutors prove marijuana DUIs by introducing evidence of bad driving (swerving, drifting within a lane, stopping at a green light, etc.), by showing poor performance on field sobriety tests (showing that the defendant was disoriented and had difficulty following simple instructions) and by introducing toxicology results showing a specific concentration of THC in a subject's blood.  Since there is no limit for THC in blood and because THC affects individual users so differently, THC levels alone really prove nothing.  The jury must decide whether the defendant was "impaired" by marijuana and, therefore, "unsafe" to operate a vehicle because of marijuana impairment.  If the jury finds that the defendant is "unsafe" because of marijuana intoxication, he is guilty of a DUI with all of the penalties that a DUI conviction carries.

This proposed new legislation would finally create a legal limit to guide the courts in determining whether or not an individual is too stoned to legally drive.  Makes sense, right?  Some clarification of the law could bring uniformity to the way that marijuana DUIs are handled and would give users a better idea of when they are legally prohibited from driving.  Unfortunately, the proposed limit for THC in blood is exactly 0.  Under this law, a person would be guilty of DUI if he or she smoked marijuana last week and any trace of that marijuana were detectable in a blood test.  The DA would not need to prove that the defendant was impaired in any way by the presence of marijuana, only that THC was present in some trace level.

If passed, the proposed law would effectively prohibit medical marijuana patients from EVER operating a car in California since even weekly users would ALWAYS have some measurable traces of THC in their blood.

I'm not sure what this law is based on, but it's sure not science, common sense or compassion.  The proposed legislation appears to be a shameless reach for publicity by an unscrupulous politician with ulterior motives.  It's no secret that Correa has big political ambitions in California.  He has already started raising money to replace Kamala Harris as Attorney General in the next election.  This bill looks like a cheap attempt to get his name into headlines and garner some support from police unions around the state at the expense of seriously ill medical marijuana patients.  Of course, more laws mean more work to keep cops busy, and that means more overtime and more money for the unions.  See how science, common sense and compassion go right out the window in politics?

Tell Correa to leave his hands off of marijuana.  We don't need any more asinine laws to fill our already-crowded jails with even more harmless, non-violent offenders.

Lou Correa can be reached in Santa Ana at (714) 558-4400 or in Sacramento at (916) 651-4034.

I Was Arrested for Shoplifting. Now What?

The following is a guide that I published on Avvo.com a couple years ago.  I still get so many calls on the topic that I've decided to re-publish it here with a few updates.  

Shoplifting is one of the most commonly charged offenses in California, with a huge range of possible penalties.  I wrote the following legal guide to help answer some of the questions that I receive nearly every day on the topic. 

Theft can be much more complicated than it looks on the surface because of the above-mentioned range of possible punishments.  The simple act of walking into a store and taking some goods without paying can be classified as an infraction, a misdemeanor or a felony, depending on a lot of circumstances. 

Before the prosecutor will decide what charges, if any, to file against a suspect, attorneys from the DA's office will take a number of facts into consideration -- What was the value of the thing taken? Was the property damaged in any way? Did the suspect use any force or the threat of force to take the property? What kind of criminal history does the suspect have? Did the suspect enter the store with the intent to commit theft or did the suspect decide to commit theft once he or she was already inside? Can it be proven that the theft was actually intentional or is there a chance that an innocent shopper simply forgot to pay for something? The answers to these questions will guide the prosecutors in deciding what types of criminal charges to file against a person suspected of shoplifting. 

The Value of the Thing Taken

Typically, if the value of the property taken is low, nothing is damaged, the store receives the property back, and the suspect has no significant criminal history, the DA might be willing to reduce the charge to a simple infraction, similar to a speeding ticket.  Depending on the county, the defendant might be required to take some classes, provide a DNA sample or make a financial contribution to a program that benefits victims of crimes before the case will be reduced from a misdemeanor to an infraction.  An infraction will include some fines, but no probation and no jail time. 

If the value of the thing taken is significant but less than $950, the suspect will probably be charged with misdemeanor petty theft.  If, however, the suspect has some history of theft, if force was involved in the crime, or if it appears that the suspect entered the store with the plan to commit a theft, he or she could be looking at more serious charges, described below.

Any theft of goods valued at more than $950 will probably be charged as felony grand theft.  Also, some theft of various agricultural products valued at more than $250 can also be charged as felony grand theft. 

Defendant's Criminal History

Usually, if someone has had a shoplifting conviction reduced to an infraction in the past, the DA will not offer such a favorable deal again.  The suspect will probably be charged with either a misdemeanor or a felony this time.  

A suspect with a prior conviction for petty theft can also be charged with a felony if he or she is convicted of petty theft a second time (petty theft with a prior).  People don't always realize that stealing a candy bar can send them away for years if they've been convicted of stealing candy bars in the past. 

Did the Suspect Use Force or the Threat of Force?

In California, robbery is defined as theft + force (or the threat of force).  If a Loss Prevention Officer  or a store clerk blocks your escape path and you push him, that act can transform a simple infraction into a serious, violent felony.  This is called an "Estes Robbery" (shoplifting with force), and it can carry potential prison time.  

The Civil Demand Letter

If you have recently been arrested for shoplifting, you will probably receive a letter in the mail from the store where you were caught or from the store's attorney.  The letter will inform you that you owe the store a sum of money, usually several hundred dollars.  The letter may contain other threatening language and will appear very intimidating.  Disregard this letter.  DO NOT SEND ANY MONEY.  This is a common scam.  You have no obligation to pay the store a penny, absent a court order to do so.  

A civil demand letter is basically a threat to sue.  The store is claiming that they suffered some loss and that you were responsible for whatever loss they are claiming.  If you refuse to pay and you deny that you caused the store any loss, the store will have to decide whether or not it intends to sue you.  Again, in order for the store to prevail in any civil suit, they will have to prove to the court that you caused them to suffer some actual, financial loss.  If you did not cause the store to suffer any loss (because they received the property back and it was not damaged), then they will lose in a civil suit -- they have no damages and you owe them nothing.  The store and their attorneys understand this basic economics.  They will not waste their time and money to pursue a losing venture in civil court.  

Of course, the civil demand has absolutely no effect on the CRIMINAL case against you.  The DA will pursue the criminal theft charges regardless of whether or not you pay the store's civil demand.  Paying money to the store will not help your criminal case, and refusing to pay the civil demand will not hurt your criminal case -- they are completely independent of each other.  

Since shoplifting can carry such a huge range of possible penalties, you should immediately talk to a local attorney if you are arrested.  Our firm has recently had a lot of success defending against shoplifting charges. Call for a free attorney consultation.  (714) 449-3335.  Ask for John.

Thanks for reading.

Fullerton Shoplifting Attorney