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.

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; your bullshit meter is properly calibrated. 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.

If you or a loved one is considering relying on some novel, crackpot legal defense, call us for a free attorney consultation first. (714) 449 3335. Ask for John.

Thanks for reading.

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.

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.

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...