Sacramento Criminal Defense Lawyer Blog

A number of bills are awaiting Governor Brown's review. Those that pertain to criminal defense include:

AB 144 - This bill deals with firearm law in California. AB 144 would make it a misdemeanor to openly carry an unloaded firearm in a public place (like a street or park). This would not apply to law enforcement, gun shows, and hunting. This is a challenge to the "open carry" movement, which protests limits on gun ownership and possession.

AB 353 - This would prevent law enforcement from impounding vehicles at local DUI checkpoints just because the driver does not have a valid drivers license. We covered this issue in detail in our May 30 post. Some local governments have been accused of using sobriety checkpoints as sources of revenue by impounding vehicles of unlicensed drivers who are not intoxicated. The municipalities can collect fees from drivers who want to reclaim their vehicles. Some local entities can even get a cut of the fees charged by the towing companies.

SB 26 - This bill makes it a misdemeanor to smuggle a cell phone into a prison with the intention of giving that phone to an inmate. It also establishes penalties for prisoners who possess cell phones. Currently, though possession of a cell phone by an inmate is a violation of prison policy, it is not a violation of California state law.

The U.S. Court of Appeals for the Ninth Circuit has issued a ruling setting important limits on the authority of police officers to conduct vehicle searches. Though this case concerned an incident in Washington state, the decision is pertinent for Californians because California is part of the Ninth Circuit's jurisdiction.

The case of U.S. v. Rodgers concerns a traffic stop made by Police Officer Ryan Moody in Lakewood, Washington, in 2009. Moody was conducting random license plate checks of vehicles that went by. When he pulled up the information on a black Pontiac Grand Am, he saw that the vehicle color listed on the registration didn't match the current color of the car. Moody suspected that the car might be stolen so he pulled it over. The driver, Joshua Rodgers, was able to provide Moody with a valid driver's license that indicated he was the owner of the car. Rodgers did not have a current vehicle registration.

During the course of his investigation, Moody took notice of the passenger in the car, a young woman. When Moody asked for her identification, the young woman stated that she didn't have an ID. She went on to give a birthdate that would make her 19 years old at the time. Moody suspected that the young woman was lying about her age and that she was a prostitute.

Moody had Rodgers and the young woman step out of the vehicle. After another officer arrived at the scene, Moody initiated a search of the passenger area of the vehicle for the purpose of locating the woman's identification. Moody did not find an ID, but he did find methamphetamine. A subsequent search of Rodgers turned up cash and more drugs. A complete search of the vehicle found a weapon, more drugs, and a ledger.

Rodgers was arrested and later convicted on a multitude of charges relating to drug possession and trafficking, as well as possession of a firearm. He appealed his conviction on the grounds that the vehicle stop and search were invalid because they violated the Fourth Amendment's protection against unreasonable and warrantless searches.

The Ninth Circuit Court's decision was fairly straight forward. To search a vehicle, an officer must have probable cause that the vehicle contains evidence pertaining to a particular crime. The court said that Moody had no "particularized fact" indicating that the young woman's ID was in the car. For example, he didn't see her make a movement suggesting that she was hiding something.

Because the circumstances did not suggest that an ID would be found in the car, Moody was not justified in conducting a search. The upshot of the court's ruling is that all of the evidence found in the various searches, as well as subsequent statements made by Rodgers, must be suppressed, meaning that they may not be used by prosecutors in a trial.

This is another important case setting limits on police authority to conduct searches of vehicles, homes, and persons.

A recent decision by a California appellate court (First Appellate District, Division One) says that people convicted of bringing drugs into jail or prison may not enter a drug treatment program through Proposition 36.

As background, Proposition 36, the Substance Abuse and Crime Prevention Act of 2000, was passed by California voters with the purpose of giving people convicted of drug possession the opportunity to go through a drug treatment program rather than spend time in jail. The program works this way. After a defendant enters a guilty plea, the judge enters a judgment, which means that a conviction goes on the defendant's criminal record. But instead of going to jail or prison, the convicted person begins drug treatment. If he successfully completes the program, the drug possession charges are dismissed. (The rules for participation in Prop 36 treatment programs are complex. Click here for a more detailed discussion.)

In People v. Parodi, the defendant pled no contest to bringing a controlled substance into the jail. The terms of the negotiated plea were that Parodi would enter a Prop 36 treatment program or have to serve 60 days in jail, depending on whether the trial court determined that the crime of bringing a controlled substance into a jail was covered by Prop 36. When the trial court subsequently ruled that Parodi was not eligible for Prop 36, he appealed the decision.

The appellate court upheld the trial court's interpretation based on its reading of the language and intent of Penal Code 1210.1, the statute created by Prop 36. The appellate court ruled that Parodi did not qualify for the drug treatment program and the possibility of dismissal of his conviction because Prop 36 and Penal Code 1210.1 focus on drug possession, while Parodi pled no contest to Penal Code 4573, which focuses narrowly on the act of bringing drugs into jail or prison.

People v. Parodi

The California Senate on Tuesday passed a bill - AB 376 - that bans the possession or sale of shark fins. The bill, which had previously passed the state assembly, now goes to Governor Brown.

The controversy revolves around the use of the fins in shark fin soup, consumed by some Asians and some Asian-Americans who reside in California.

While shark "finning" is already illegal in California, possession or sale of shark fins has to this point been legal.

A companion piece of legislation - AB 853 - offers two compromises. It grants an exemption to fishermen who inadvertently catch sharks and allows people who possess shark fins as of January 1, 2012, to possess or sell those fins until July 1, 2013.

Support for these bills was split among Asian-American members of the state senate.