Recent Blog Posts

CALIFORNIA COURT OF APPEAL HOLDS THAT INSERTING A KEY IN DOOR OF A RESIDENCE WITHOUT A WARRANT DOES NOT VIOLATE THE FOURTH AMENDMENT

Scott Hughes — Fri, 18 Nov 2011 21:16:00 GMT

In People v. Robinson, the defendant made an alleged assault on a police officer and abandoned his vehicle. Leaving his keys behind, the police officers followed defendant's expended gun cartridges and tested the keys. One of the keys fit into the door of a residence and without obtaining a warrant, police found heroin, marijuana, additional ammunition, and drug packaging materials. On appeal, the defendant contended that the evidence found in the home was inadmissible because the warrantless entry of the home was unlawful and therefore all evidence during that illegal search was inadmissible.

The independent source doctrine says in order for evidence to be admissible, it must have been discovered by means wholly independent of any constitutional violation. People v. Weiss (1999) Cal.4th 1073, 1077-78. Where the probable cause for a search warrant contains information obtained by unlawful conduct, the courts apply a two-part test.

The affidavit must be sufficient to establish probable cause without the information obtained through the unlawful conduct; and

The police would have subjectively sought the warrant even without the information that was obtained illegally.

Whether the warrant was supported by probable cause under the independent source doctrine depends upon whether the act of inserting a key into the door violated the Fourth Amendment. The court determined that inserting the key into the lock, even if it constituted a search, was not unreasonable and thus not violative of the Fourth Amendment. The court did not decide whether inserting the key into door was a search but assuming it was, the search was based on "reasonable suspicion" and "served legitimate investigative purposes. Because the search was not unreasonable and did not violate the Fourth Amendment, the information gained was therefore found to be admissible.

Scott Hughes is a criminal defense attorney in Orange County, California practicing in State and Federal Court.

FACEBOOK IS WATCHING YOUR INTERNET ACTIVITY

Scott Hughes — Fri, 18 Nov 2011 00:11:00 GMT

USA Today and the ACLU recently brought to light that Facebook employs tracking methods to monitor your Internet activity, even if you are not logged into Facebook or click the Facebook "Like" button.

Facebook is able to do this because whenever you visit any page on Facebook, the site affixes "cookies" onto your browser, and these cookies inform Facebook whenever you visit a website that contains a "Like" button or other Facebook social-plugins. With the popularity of sites utilizing these social-plugins, Facebook has significant access to your online browsing habits.

The ACLU is currently encouraging people to ask Congress to improve its privacy laws for protection against tracking without our awareness or consent. The Chairman of the Commerce, Science and Transportation Committee has pledged that they will launch an investigation into the matter.

Scott Hughes is a criminal defense attorney in Orange County, California practicing in State and Federal Court.

CALIFORNIA PRISON REALIGNMENT

Scott Hughes — Fri, 30 Sep 2011 19:39:00 GMT

October 1, 2011, AB 109 will take effect in the state of California. More commonly known as "realignment," the bill is a response to the U.S. Supreme Court's May order for California to reduce its prison population. The basic concept is to transfer the least dangerous inmates to the communities they are originally from and change sentencing and parole guidelines. The following sections highlight and discuss the major changes of realignment.

Changes to California's Felony Sentencing and Parole

Instead of state parole, released individuals will be assigned to county Postrelease Community Supervision. After being released from a county jail felony, there will be no county Postrelease Community Supervision, except for those with felony sentences that can be followed by probation.
Felony offenses that are punishable by sentences of more than one year will be served in county jail, and some of those sentences may be followed by a period of probation.

Sentencing for Felony Offenders Without Convictions for Serious, Violent, or Registerable Sex Offenses

Individuals with felony sentences that are non-violent, non-serious, or non-registerable sex offenses under California Penal Code § 290, will serve their sentences of terms exceeding one year in county jail.
If a specific term is not specified by statute, jail sentences of many of these felonies may be followed by a period of probation pursuant to California Penal Code § 1170(h).
Counties may work with the California Department of Corrections and Rehabilitation to accept those convicted of county jail felonies.

Sentences for Felony Offenders with Current Serious, Violent, or Registerable Sex Offenses or those who have such a prior felony

California Penal Code § 1170 provides the basic disqualification for current or prior violent, serious, or registerable sex offenses under California Penal Code § 290.
Over 60 non-violent, non-serious, and non Penal Code § 290 registerable sex offenses will remain felonies requiring the sentence to be served in state prison.

County Jail Conduct Credits to be 50%

Two actual days in county jail will be deemed to have been four days served.
Those convicted of violent felonies will be limited to conduct credit at 15%.
Those convicted of murder will still be ineligible for any conduct credit.
The county system will mimic the state prison system in that conduct credits may be lost through an administrative disciplinary system.

Counties Able to Authorize Voluntary and Involuntary Home Detention

California Penal Code § 1203.016 will authorize counties to offer voluntary home detention programs as well as order involuntary participation in a home detention program.
California Penal Code § 2900.5 states that days spent in home detention will count towards mandatory minimum sentences.

Countries Can Authorize Electronic Monitoring in Lieu of Bail

California Penal Code § 1203.018 allows the county board of supervisors to permit qualified inmates held in lie of bail to be placed in an electronic monitoring program.
California Penal Code § 2900.5 states that time served in this electronic monitoring program will count towards mandatory minimum sentences.

Postrelease Community Supervision to Replace Parole for Those Released from Prison

The new Postrelease Community Supervision Act, to be implemented by county agencies, states that individuals who are released from prison after serving a term for particular felonies are subject to up to three years of postrelease community supervision.
Those who do no fall under those particular felonies will be released on parole.
For those who served their felony sentences in county jail, there will be neither parole nor Postrelease Community Supervision, but a period of probation may follow.

Parole only available to Certain Offenders

Parole will be limited to those released from prison on and after October 1, 2011, whose sentence was for any of the following:
1. violent felony
2. serious felony
3. third strike
4. offenders with a metal disorder
5. possible high risk sex offender crimes
New Revocation Hearing Officers will decide parole revocation cases starting July 1, 2013. The county superior court will be permitted to appoint as many hearing officers as necessary to conduct these hearings or determine violations of postrelease supervision.

Parole Reentry Accountability Program Expanded

The parole entry accountability program, already in effect as of January 25, 2010, will be expanded to include individuals on Postrelease Community Supervision.

Division of Juvenile Justice Not to Be Affected by Realignment

The Division of Juvenile Justice will not be affected by the realignment to take place on October 1, 2011.

How do I know if realignment will affect me?

For persons sentenced on or after October 1, 2011, for county jail felonies, the sentencing changes will apply prospectively (that is, October 1, 2011 and after).

The conduct credits, where four days credit will be given for every two days served, applies prospectively for crimes committed on or after October 1, 2011. Days earned by a prisoner prior to October 1, 2011, will be calculated under prior law.

Those released from state prison on or after October 1, 2011, who do not need to be on parole, will be placed on postrelease supervision.

Scott D. Hughes is a Criminal Defense Attorney in Orange County, California practicing in State and Federal Court.

ORANGE COUNTY DISTRICT ATTORNEY FILES MURDER CHARGES AGAINST FULLERTON OFFICERS IN THE BEATING DEATH OF A HOMELESS MAN

Scott Hughes — Thu, 22 Sep 2011 20:58:00 GMT

After investigation, Orange County District Attorney Tony Rackaukas announced in a news conference today his decision to charge Officer Manuel Ramos and Corporal Jay Cincinelli in the death of Kelly Thomas, a mentally ill, homeless man.

Officer Ramos is a 10-year veteran and has been charged with second-degree murder and involuntary manslaughter while Corporal Cincinelli is a 12-year veteran and has been charged with involuntary manslaughter and excessive force.

Ramos and Cincinelli had responded to reports that homeless man was looking into vehicles in downtown Fullerton. They found Thomas without a shirt and wearing a backpack. Thomas, a schizophrenic, encountered difficult complying with the officers' orders. Following this, the situation escalated and resulted in the fatal beating.

The coroner reported that the death was a result injuries to the face and head and compression of the thorax, a circumstance that made it impossible for Thomas to breathe normally and thus deprived the homeless man of oxygen.

Ron Thomas, the homeless man's father, has filed a claim against the city.

See the press release here: http://orangecountyda.com/home/index.asp?page=8&recordid=2581

GOV. JERRY BROWN SIGNS BILL ALLOWING LOCAL AUTHORITIES TO REGULATE MEDICAL MARIJUANA DISPENSARIES

Scott Hughes — Wed, 21 Sep 2011 18:27:00 GMT

On August 31, Governor Jerry Brown signed Assembly Bill 1300 (AB 1300), which gives local law enforcement the power to promulgate and enforce ordinances imposing restrictions on marijuana dispensaries.

The bill was drafted after much legal debate over medical marijuana dispensaries resulting from little state regulation over medical marijuana.

The ambiguity arising from a lack of legally binding state requirements for medical marijuana dispensaries created a slew of civil law suits from medical marijuana collectives for unconstitutional discrimination against cities and counties. In the case of City of Los Angeles v. Hill decided last year, the California Court of Appeal for the Second District held that a country is not prohibited from enacting regulations and ordinances to restrict the location or establishment of medical marijuana dispensaries.

Without legally binding state requirements for medical marijuana dispensaries, AB 1300 purports to take the first step towards preventing abuse and preserving the authority of local law enforcement. The law will go into effect January 1, 2012.

Scott Hughes is a criminal defense attorney practicing in Orange County, California in both State and Federal Courts.

CAN THE GAME BE PROSECUTED FOR HIS TWITTER POSTING?

Scott Hughes — Wed, 17 Aug 2011 22:31:00 GMT

On Friday, August 12^th, a posting on rapper "The Game's" Twitter account offered an internship with his Black Wall Street label and posted the number of the Los Angeles County Sheriff's Department in Compton, California. As The Game had 580,000 followers on Twitter, his Tweet prompted thousands of phone calls (a "flash mob") to the station, jamming the Sheriff stations' phone lines and blocking legitimate calls for help. The Sheriff's Captain, Mike Parker, sent two tweets to The Game requesting that the post be taken down. The Game later posted that his account had been hacked and that it had been an accident.

The Game could face possible prosecution for unlawful publication and dissemination of a telephone number of a county sheriff's office under California Penal Code § 146e. However, although the prosecution may be able to demonstrate that the number of the county sheriff's office was published, the prosecution may have a more difficult time demonstrating malice or the intent to obstruct justice or due administration of the law. Particularly, if the Game can show that his Twitter account was actually hacked into or that he did not personally tweet the number.

The prosecution may also charge The Game for interference with public safety radio communications under Cal Penal § 148. However, the prosecution may also run into difficulty to prove the elements of malice and scienter ("knowledge") requirement. Furthermore, it is arguable that the Game did not directly interfere with the public safety radio frequency directly. The telephone number was a non-emergency line and all calls were made by third parties, not the Game directly.

Additionally, The Game's failure to remove the posting immediately after law enforcement's requests could possibly constitute resisting an officer in his or her performance of duties. However, additional information is required to determine this.

The Game's unique situation falls into an unprecedented area of law. Courts have yet to examine the role of speech in a social media context, especially when it comes to criminalizing speech via social media. Arguably, posting messages via Twitter potentially falls within the First Amendment protections of freedom of speech and the expression of ideas. The difficulty in determining whether The Game's tweet falls within this protection will depend on what medium the expression was conveyed through. The courts will need to determine whether Twitter falls within broadcasting or telecommunications, or the Internet. Courts have held that broadcasters have certain public interest obligations while the Internet is afforded a high level of First Amendment protection.

Can police use your cell phone to track you?

Scott Hughes — Mon, 15 Aug 2011 21:07:00 GMT

As discussed in our previous posts, the Fourth Amendment requires that police obtain a search warrant or have reasonable suspicion of a crime before searching a person or their property.

However, growing concern has arisen over police use of cell phone data to collect information about a person’s location and other personal information without sufficient cause. Just recently, the Los Angeles chapter of the American Civil Liberties Union filed a public record request for the mobile phone tracking usage of local law enforcement. The request includes information from local police involving tracking using cell phones, social media or internet investigations, GPS tracking, automatic license plate reading technology, public video surveillance, and any other technologies utilized by local police.

The concern arises not onlu in criminal cases, but in noncriminal cases where cell phone tracking technology has become routine in everyday investigations. An individual’s whereabouts could be tracked by local law enforcement without the person ever knowing. Information on a person’s location can be collected by using satellite data from GPS chips in smart phones, tracing a cell phone signal to a nearby tower, or by requesting the information directly from a cell phone carrier or provider.

Congress is currently considering a bill requiring police to obtain warrants before collecting information regarding a person’s location via mobile phone.

What do I do if there is a warrant out for my arrest?

Scott Hughes — Tue, 02 Aug 2011 15:00:00 GMT

When a warrant has been issued, it means that a judge has issued a warrant for an individual’s arrest and set an amount for bail. The warrant then is entered into a nationwide database and if law enforcement runs a search and the warrant turns up, then you will be placed under arrest and then taken to the county where the warrant originated. A judge will then see you, usually within 48 hours, and address the reasons behind the warrant.

A warrant for your arrest may be issued for several reasons. The following list includes a few of those reasons:

If you were issued a citation by law enforcement and released with a ticket to appear at a specific date and time but failed to appear
If the DA files charges against you and sends you a letter requiring you to appear in court, but you fail to appear in court
If law enforcement demonstrates probable cause that evidence is at a particular place, the judge can issue a warrant based on probable cause

Is there a difference between a misdemeanor and felony warrant?

Pursuant to Penal Code Section 977(a), if a warrant was issued in a misdemeanor case your attorney can appear on your behalf and recall the warrant without you being present. The attorney will ask you to sign a Waiver of Defendant’s Personal Presence in this instance.

If a warrant was issued on a felony case, however, you will need to appear in court with your attorney. You will also need to prepare to post the bail amount that was set when the warrant was issued.

Questions about your warrant? Orange County Warrant Attorney Scott Hughes can help answer your questions and resolve your legal issue.

Scott Hughes is a criminal defense lawyer in Orange County, California practicing in State and Federal Court.

California Felony Sentencing Iphone App

Scott Hughes — Sat, 23 Jul 2011 19:43:00 GMT

California Felony Sentencing just got easier to calculate with the new Iphone App which includes the 2011 Sentencing for California in your pocket. The sentencing Application available in the ITunes Store called Cal Felony tells you whether the offense is a "wobbler" and gives the sentencing ranges as well as a brief description and whether the offense requires registration.

Cal Felony, California Felony Sentencing App is available in the iTunes Store.

CASEY ANTHONY VERDICT PROMPTS ONLINE PETITION TO HOLD PARENTS ACCOUNTABLE FOR REPORTING MISSING CHILDREN

Scott Hughes — Sat, 16 Jul 2011 19:10:00 GMT

Last week's verdict where Casey Anthony was found not guilty of child abuse and murdering her two-year old child, Caylee, prompted dissatisfied citizens to start an internet movement for pass legislation that would require parents and guardians to exercise responsible behavior in the event of a missing child.

Casey Anthony, a 25-year-old mother, had waited 30 days before reporting her daughter, Caylee, missing. Anthony was convicted of four misdemeanors of providing false information to the police and sentenced to four years. A judge on Thursday ruled that she could go free in late July or early August because she had already served nearly three years in jail and exhibited good behavior.

A mother in Oklahoma, Michelle Crowder, created the online petition within hours after the Casey Anthony verdict was announced. "Caylee's Law" would make it a felony for parents or caregivers' failure to report the death of a child to authorities within one hour. Caylee's Law would also make it a felony for guardians' failure to notify the disappearance of a child under the age of 12 within 24 hours.

Florida is currently pushing for Caylee's Law, while other state representatives are being encouraged by their constituents. California is likely to follow.

Michelle Crowder's Caylee's Law Online Petition can be found here: http://www.change.org/petitions/create-caylees-law

Scott Hughes is a criminal defense lawyer in Newport Beach, California practicing in State and Federal Court.

CALIFORNIA'S "SECOND CHANCE" BILL OFFERS HOPE TO IMPRISONED YOUTH

Scott Hughes — Wed, 13 Jul 2011 19:10:00 GMT

California's Senate Bill (SB) 9 offers hope to those inmates in California currently serving life without parole sentences for crimes committed while still a juvenile. SB 9 provides inmates serving sentences of life without parole for crimes committed before their eighteenth birthday with an option of submitting a petition for consideration of a new sentence after they have served 15 years of their prison term. If the petition is approved, the inmate's life without parole sentence may be reduced to 25 years to life, which includes a possibility of parole. The bill is supported by organizations for youth advocacy such as Human Rights Watch and NCYLNational.

The Senate passed the bill in June in a 21-16 vote and the Assembly Public Safety Committee approved SB 9 in a 5-2 vote earlier this month. SB 9 will next go to the Assembly Appropriation Committee and then be put to a vote on the floor of the Assembly. The bill is expected to come to a vote after the Assembly's summer recess.

Scott Hughes is a criminal defense lawyer in Newport Beach, California practicing in State and Federal Court.

Physicians Must Report Felony or Misdemeanor Convictions

Scott Hughes — Tue, 15 Feb 2011 23:15:00 GMT

A Physician in California must report a conviction of either a felony or a misdemeanor to the California State Medical Board.Doctors must report their convictions to the medical board within 30 days of the date of conviction.

Doctors who fail to report their misdemeanor or felony convictions may be punished by a fine not exceeding $5,000.00.

Scott Hughes is a criminal defense lawyer in Newport Beach, California practicing in State and Federal Court.

Misdemeanor and Infraction Criminal Appeals

Scott Hughes — Fri, 11 Feb 2011 23:11:00 GMT

The defendant may appeal a judgment or order in misdemeanor or infraction cases to the appellate division of the superior court of the county in which the case was heard.

The defendant in a misdemeanor or infraction case has a pretrial right to appeal the denial of a Penal Code §1538.5 motion to suppress evidence to the appellate division of the superior court.

After trial, a defendant in a misdemeanor or infraction case may appeal the final judgment of conviction including granting probation, any postjudgment order affecting the defendant's substantial rights.

Scott Hughes is a criminal defense lawyer in Newport Beach, California practicing in State and Federal Court.

Propensity evidence may not be as clear-cut as it seems!

Scott Hughes — Wed, 19 Jan 2011 19:31:00 GMT

In light of a recent decision released by the Court of Appeal for the Fifth District of California, criminal defense attorneys in California will have to be careful when it comes to propensity evidence

Generally, evidence of prior criminal acts is inadmissible to show the defendant’s disposition to commit the criminal act charged. However, under California Evidence Code section 1109, evidence that a defendant committed prior acts of domestic violence can be admitted when the defendant is accused of “an offense involving domestic violence.”

In the recent decision of People v. James, the defendant allegedly broke down the door of his former girlfriend. At his trial, the trial court admitted evidence of a prior instance of domestic violence against the former girlfriend and of a prior act of domestic violence against another former girlfriend. The defendant was subsequently convicted of first-degree burglary.

The Court of Appeal faced the issue of whether evidence of domestic violence is admissible even if the crime charged does not involve domestic violence (i.e. burglary). There, the court found that under these circumstances, the offense of burglary involved domestic violence. As defined under California Penal Code section 13700, domestic violence is abuse (“intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another”) against another.

The defendant in that case had broke down the woman’s door and made repeated threatening remarks, thus placing her in apprehension of serious bodily injury. Because the court found that in this scenario, the defendant’s offense of burglary involved domestic violence, evidence of the defendant’s prior domestic violence was therefore admissible to show the defendant’s propensity to commit the charged offense.

The court focussed particularly on the intent to commit the act of domestic violence in the course of committing the burglary. The court referenced People v. Story, where that court found that prior sexual offenses were admissible for a murder prosecution because the burglary was based on an intent to commit rape. Because the intent to commit the offense was the underlying felony, the burglary was considered a sexual offense for the purposes of the statute (California Evidence Code section 1108). People v. Story (2009) 45 Cal.4th 1282, 1289.

Thus criminal defense attorneys will need to be aware that even if not specified in the statute, the conduct involved in the underlying offense may still open the door for the prosecution to admit propensity evidence.

Unless otherwise noted, all citations taken from People v. James, 2010 WL 5393834 (Cal.App. 5 Dist)

Scott Hughes is a criminal defense lawyer in Newport Beach, California practicing in State and Federal Court.

Court rules prior uncharged acts committed in foreign country admissible as propensity evidence under 1108

Scott Hughes — Sat, 20 Nov 2010 19:23:00 GMT

In a decision issued by the California Court of Appeal, Fourth Appellate District, likely to be overruled, the court held that uncharged sexual offenses committed outside the United States are admissible as propensity evidence.

The defendant and appellant, Martin Felipe Miramontes, was convicted in the Superior Court, San Diego County, of sodomy with achild ten years old or younger, lewd acts of a child, attempted lewd acts on a child, oral copulation and sexual penetration with a child ten years old or younger, using harmful matter to seduce a child, and possession of child pornography. At trial, the prosecution introduced the testimony of two children regarding prior uncharged sexual offenses against children committed in Mexico. After conviction on the aforementioned counts, Miramontes appealed the court’s ruling that allowed the prior uncharged acts of molestation of the two children into evidence.

Evidence Code section 1108 creates a statutory exception to the general rule against evidence to demonstrate propensity to commit a crime and allows the admission of evidence of other sexual offenses to prove the defendant’s disposition to commit the charged offense in sexual offense cases.

Miramontes argued for a strict reading of Section 1108, contending that the definitions in Evidence Code section 1108 only expressly prohibit conduct under state or federal law, not foreign law. The court rejected Miramontes’ argument, reasoning that Section 1108 allowed for the testimony because it clearly described conduct prohibited by California law. The code does not require that the sexual offenses have taken place in the United States. Rather, the definitions within Section 1108 describe the substance of the unlawful conduct involved in the prior offense, regardless of where it may have occurred. Thus, the court states, “[t]he principal consideration in this inquiry is whether the comparable prior, essentially similar, conduct occurred, not where it occurred, for purposes of determining…its admissibility under Evidence Code section 1108.”

The court further analogized their interpretation to rules using a comparable analysis in allowing use of prior out-of-state convictions for sentence enhancement and the registered sex offender statute. In sentence enhancements involving prior out-of-state convictions, the court may consider the entire record to determine whether “the offense of which the defendant was previously convicted involved conduct which satisfies all elements of the comparable California…offense.” Additionally, a person who was convicted of a sexual offense in another state will only be required to register as a sex offender in California if the out-of-state offense meets all the statutory elements under California law. Thus, so long as the act committed outside of California meets the statutory elements required under commensurate California law, the court will consider it as compliant with the statute and take it into consideration.

After looking to legislative intent and comparable ways to interpret the law, the court concluded that just because the offenses occurred in Mexico this did not preclude admissibility of the uncharged acts. The acts met the requirements as set forth in Section 1108 and thus the court affirmed the convictions.

All citations taken from People v. Miramontes, 2010 WL 4343324 (Cal.App. 4 Dist.).

Scott Hughes is a criminal defense lawyer in Newport Beach, California practicing in State and Federal Court.