Sacramento Criminal Defense Lawyer Blog

The California state Assembly yesterday passed AB 327, which would give voters the opportunity to modify the state's three-strikes law. The bill now goes to the state Senate. Approval of the measure there would place the initiative on the November ballot.

AB 327 seeks to change the law to require that a third strike be categorized as violent or serious to result in a 25-year to life sentence. Non-violent or non-serious third felonies would instead result in a doubling of the applicable sentence.

The bill does come with restrictions, however. For example, the 25-year to life penalty would still be imposed for a non-violent, non-serious third strike if either of the previous strikes were for murder, rape, or child molestation.

AB 327 comes as part of a movement to assess the impact of three-strikes laws. The Legislative Analyst's Office reported in 2005, after 10 years of three-strikes enforcement, that there was considerable variation across the state regarding application of three-strikes penalties. Prosecutors in different counties have different policies about seeking sentence enhancements. Judges employ different standards is using their discretion to dismiss prior strikes. And policies within counties change as different district attorneys come into office.

In addition, it's not clear what impact three-strikes laws have had on crime rates. A Center on Juvenile and Criminal Justice report showed that the California counties with the highest rate of imprisonment using three-strikes laws (including Sacramento county) actually saw reductions in crime rates that were SMALLER than the reductions seen in the counties that employed three-strikes most sparingly.

The new year brings a raft of new criminal laws for California. Here's an overview of some of them.

DUI
AB 1601 gives judges the authority to impose a 10 year driving ban on people convicted of three DUIs within a 10 year period. This new law appears to conflict with Vehicle Code 13352, which allows drivers convicted of three DUIs within a 10 year span to get a restricted license after six months if they agree to install an ignition interlock device. More on this in a later blog post.

Synthetic Cannabis
AB 420 makes it a misdemeanor to possess, distribute, or sell any synthetic cannabinoid substance.

Cough Syrup
It is now an infraction, punishable by a fine of up to $250, to sell to someone under 18 years of age any over-the-counter medication containing dextromethorphan (a common ingredient in cough syrups). Dextromethorphan is sought by some recreational drug users for the high it produces when ingested in larger than recommended amounts.

Vehicle Impoundment
AB 353 bars police at DUI checkpoints from impounding vehicles of drivers whose sole offense is driving without a license. Drivers will now be allowed to move their vehicles off the road and find a licensed driver to take the car away. This law was enacted in response to concern that some local law enforcement agencies were using the impoundments - which far exceeded the number of DUI arrests - as a means of boosting revenues through fees charged for release of the vehicles.

Open Carry of Firearms
People who openly carry an unloaded handgun in public may be charged with a misdemeanor. AB 144, however, does provide a number of exceptions, including police officers, hunters, and people engaging in target shooting or participating in a parade.

The National Transportation Safety Board - a federal government agency - on Tuesday called for a ban on all cell phone use by drivers. The NTSB recommendation goes beyond banning use of hand held devices and advocates restricting the use of hands-free or bluetooth devices. According to the NTSB, research shows that "electronic distractions" significantly impair drivers' abilities to safely navigate the nation's streets and highways.

It's important to keep in mind, however, that the NTSB can only recommend that states enact this policy. In general, under our federal system of government, rules about driving are the province of state governments. Therefore, each state is free to take - or reject - the advice of the NTSB. It's highly unlikely - in fact, almost impossible to imagine - that California legislators would adopt a cell phone ban.

Governor Jerry Brown has completed his review of bills passed during the just completed session of the California legislature, signing some into law and vetoing others. Here is a summary of some pertaining to criminal defense.

Prison Cell Phones - The issue here was that some prisoners were getting ahold of cell phones, a violation of prison regulations. (A state Senate study, by the way, found that many of these phones were smuggled to inmates by prison guards.) This new law makes it illegal - and imposes criminal penalties - for prisoners to possess cell phones and for anyone to smuggle them into prison.

Open Carry of Handguns - This law makes it a misdemeanor to openly carry (meaning have visible) an unloaded handgun in certain public places. According to the law's author, Assemblyman Anthony Portantino, law enforcement agencies had requested the new legislation because they were being called by citizens who became concerned when they saw someone carrying a weapon. The agencies say their time can be better spent on matters which are a threat to public safety. Gun rights supporters argue that the new law violates the Second Amendment.

Sobriety Checkpoints - Governor Brown also approved a new law that places limits on the actions of law enforcement at DUI checkpoints. Specifically, police may no longer impound a vehicle solely because the driver is unlicensed. The impetus for this law was that some police and sheriff's departments were using the vehicle impounds as a way of generating revenue. The agencies would charge fees to have the vehicles released to the owners, and would in some instances receive a portion of the fees charged by towing companies. The new law requires that an unlicensed driver must still leave his car at the checkpoint but will have the opportunity to return with a licensed driver (and permission of the car's owner) to take the car away. People who have had their driver's licenses suspended or revoked will continue to have their vehicles impounded. And people who are in violation of state DUI laws will also continue to be subject to arrest and vehicle impoundment. Governor Brown did veto AB 1389, which also dealt with DUI checkpoints but would have dictated in more specific terms the rules for site selection, oversight, and methodology.

A new California law that took effect on Saturday changes sentencing guidelines for people convicted of felonies. The upshot is that people convicted of certain non-violent felonies will serve their sentences in county jail rather that prison.

The purpose of AB 109 is to move California into compliance with a United States Supreme Court mandate that the state solve its prison overcrowding problem. It's also meant to reduce prison costs, which now take up nearly 12% of the state's annual budget, more than what is spent on the CSU and UC systems combined.

While convictions for serious and violent felonies and sex offenses will still require time served in state prison, other less serious felonies - such as theft, burglary, and certain drug crimes - will mean time in county jail. Other sentencing guidelines will remain unchanged, including the length of the term to be served.

Counties will receive funding from the state to pay for their additional costs.

Advocates for the new policy say that, in addition to reducing prison overcrowding and cutting back on prison expenditures, it will make prisoners less likely to return to jail or prison once they are release because they can take advantage of drug treatment programs and innovative probation programs that include work training.

Critics of the plan, however, say that the counties will not have adequate resources to house all of the inmates, which will result in early releases.

The new law does not impact current prison inmates, who must continue serving their terms at state penitentiaries.

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 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.

The number of California prison inmates possessing cell phones has increased dramatically in recent years, with prison officials confiscating 7,284 phones in the first half of this year compared with 261 in all of 2006. As of this date, while it is a violation of prison regulations for prisoners to have cell phones, it is not illegal. A state senate bill sponsored by Sen. Alex Padilla would change this, imposing a loss of 180 early release credits for any prisoner found to possess a cell phone. In addition, the bill would make it a misdemeanor for anyone to smuggle a cell phone to a prisoner.

A related issue is the increased frequency with which inmates are maintaining Facebook accounts from prison. Apparently, cell phones are used to update Facebook accounts that the prisoners had before they were convicted, create new accounts, and to view pages of other people's Facebook accounts.

According to Facebook policy, inmates who had Facebook accounts before they went to prison may keep those accounts. However, they may not update the preexisting accounts, create new accounts, or have people outside of prison create or update accounts for them. The California Department of Corrections and Rehabilitation (CDCR) shares information with the Facebook Security Department, which can disable accounts found to be in violation of Facebook policies.

In 1994, California enacted one of the nation's first three-strikes laws, substantially increasing prison terms for people convicted of multiple felonies. That law remains one of the harshest in the country, doubling penalties for a second felony and allowing sentences of 25 years to life for a third felony, even if the most recent conviction is for a non-violent crime. The three-strikes law was passed by voter initiative after the 1993 murder of 12 year old Polly Klaas by Richard Allen Davis, who had been been previously convicted of multiple felonies but remained free.

When the law first went into effect, prosecutors and courts applied it vigorously. But over the last decade and a half, as some people received 25 to life sentences for non-violent third offenses such as drug possession or theft, application of the law has evolved. The Sacramento Bee last week reported that statewide in 1996 over 1700 people were sentenced under the maximum terms allowed by the three-strikes law, while less than 200 were sentenced annually in recent years.

This decrease reflects both changes in how prosecutors apply the law as well as changes in the law itself.

Changes in how district attorney offices apply the law came about in response to changes in public sentiment toward rigid sentencing rules for people with multiple convictions. That change in public sentiment occurred because of well-publicized instances of 25 to life sentences for third felony convictions involving non-violent offenses. Specifically, prosecutors were put on notice by the near passage in 2004 of an initiative that would have gotten rid of the three-strikes law. They realized that seeking maximum penalties for non-violent and less serious crimes was not what people wanted. Thus, in general, D.A.'s offices now seek a 25 to life sentence only for the most serious crimes. This is the case in Sacramento County where the district attorney now asks for life sentences in less than 20 cases each year, down from nearly 100 in 1996.

Three-strikes law itself changed in 1996 when the California Supreme Court gave judges discretion to dismiss strikes. Thus, judges can review someone's entire record and determine whether it is in the interest of justice to reduce the number of strikes, even if prosecutors think otherwise.

Even with these changes, three-strikes law remains controversial. Most importantly, California's three-strikes law is not interpreted and applied uniformly throughout the state. Each district attorney's office can have its own policy about whether to seek the maximum penalty and its own system of reviewing cases, and each individual judge can exercise his/her discretion differently. One solution would be to have a commission that could set guidelines ensuring more equitable application of sentencing laws statewide, with only the most serious offenses subject to 25 to life prison terms. Other less serious cases should be treated differently so as to reduce prison costs and maximize the chances for rehabilitation. Moreover, it's not clear that sentencing more people to prison for longer terms leads to less crime. A study by the Pew Center for the States indicates that all of the states that reduced their prison populations in the last 10 years also saw a decrease in their crime rates.

The California Supreme Court issued a ruling yesterday that attempts to clarify state law regarding pandering. Specifically, it tried to determine what actions categorize someone as a pimp.

As we noted in our March 4 blog post, the case of People v. Zambia concerns Jomo Zambia who in 2007 pulled his car up to an undercover Los Angeles police officer who was posing as a prostitute as part of a sting operation. Zambia told the officer that he was a pimp, showed her a business card, and said he would "take care of her" if she got in his vehicle. Zambia was arrested for pandering and subsequently convicted in superior court. A California appellate court upheld his conviction.

California Penal Code section 266(i)(a)(2) states that a person is guilty of pandering if that person "[b]y promises, threats, violence, or by any device or scheme, causes, induces, persuades, or encourages another person to become a prostitute."

The Supreme Court agreed with the trial and appellate court decisions and ruled that Zambia's actions constituted pandering. Zambia argued that "to become a prostitute" does not pertain when someone is already a prostitute or is posing as a prostitute. The court did not find this persuasive. It instead agreed with the view that "to become a prostitute" pertains to engaging in prostitution in the future, not with whether someone is already a prostitute or is only posing as one.

Next Tuesday, March 8, the California Supreme Court will hear oral arguments in the case of People v. Zambia, which presents the following issues: (1) Does the offense of pandering require the specific intent to encourage another person to become a prostitute? (2) Can a defendant be convicted of pandering for offering to act as a pimp for a woman who appears to be already working as a prostitute?

In other words, the Court is going to define what is meant by the word pimp.

The case stems from the 2007 arrest in Los Angeles of Jomo Zambia, who drove up to a woman he thought was a prostitute (she was an undercover cop) and asked her to get in his car, saying he was pimp who would provide her shelter and clothing. Even though Zambia was not a pimp - he lived at home and worked for the family business - he was arrested and sentenced to state prison for violating California's pandering law. He has since been paroled.

At issue in this case is the meaning of the word "become." California law declares it illegal to induce, persuade, or encourage "another person to become a prostitute."

Does "become" in this sentence mean convincing someone to begin working as a prostitute (changing occupations)? Or does it mean encouraging someone who is already a prostitute to move from one pimp to another (changing bosses)? Or could it even mean merely soliciting the services of a prostitute?

The California Supreme Court will decide.

A variety of new laws took effect in California as of January 1, 2011. These include:

• Marijuana - Under SB 1449, possession of less than an ounce of marijuana is now classified as an infraction - like a parking ticket. It still comes with a $100 fine but cannot be included on someone's criminal record.
• Motorcycles - People under the age of 21 who want to obtain an instruction permit must first complete a motorcycle safety course. The permit must than be held for six months before a class M motorcycle license is issued.
• Impersonating someone online - SB 1411updates California's laws regarding impersonation to take into account activity on the internet. It is now a misdemeanor to harm, intimidate, threaten, or defraud a person while impersonating someone else through email or a social networking site.
• Truancy - SB 1317 allows law enforcement agencies to file misdemeanor charges against parents of truant elementary school children if it's determined that the parents did not reasonably supervise their children and encourage them to attend school.

Proposition 19, which would have legalized recreational use of marijuana in California, was defeated by voters in Tuesday's election 53.8% to 46.2%. This means that marijuana use remains illegal in California, though a recent change to state law does significantly reduce the penalties.

If it had passed, Proposition 19 would have made it legal to: possess up to an ounce of pot; use it in a non-public venue such as one's home or a public venue licensed for marijuana consumption; and grow pot at one's residence in an area up to 25 square feet. It would have also permitted local governments to authorize the retail sale of up to an ounce of marijuana to people 21 years of age or older, as well as impose local taxes on those retail sales.

Because of the defeat of Proposition 19, possession and use of marijuana is still against the law. However, the passage in October of SB 1449 changes possession of less than an ounce of marijuana from a misdemeanor to an infraction as of January 1, 2011. This means that the penalties for less than an ounce will be a fine of up to $100, no jail time or probation, and no conviction on one's criminal record. Essentially, possession of a small amount of pot will be treated like a minor traffic violation or littering. Bear in mind, though, that possession of more than an ounce comes with substantially harsher penalties, especially if the charges include trafficking or sales.

Governor Arnold Schwarzenegger last week signed into law Senate Bill 1449, reclassifying possession of less than an ounce of marijuana from a misdemeanor to an infraction. The new law will take effect January 1, 2011.

Under existing law, someone convicted for possession of less than an ounce of marijuana cannot be sentenced to jail or given probation; fines are already capped at $100. Classification as a misdemeanor allows defendants the option of a jury trial, but is also means that convictions become part of their criminal records.

Schwarzenegger in a written statement said that because of previous changes in the law, marijuana possession of less than an ounce is already treated in most respects as an infraction (the lowest level of offense, like a traffic or littering citation). Under SB 1449, possession of a small amount of marijuana will no longer require appearance in court and will not become part of someone's criminal record.

Schwarzenegger nonetheless stated his opposition to Proposition 19, which goes before voters on November 2, and if passed would legalize and regulate cultivation and personal use of marijuana for people over 21 years of age. He also noted that California's budget problems were a factor in his decision to sign SB 1449, stating that law enforcement personnel should devote their limited time and resources to pursuing more serious violations.

Probation falls into two broad categories: misdemeanor probation, also known as summary or informal probation; and felony probation, also known as formal probation.

If a person pleads no contest, or is found guilty at trial, to a misdemeanor offense, the judge is given the responsibility of setting the terms of sentencing. These terms can include jail time, fines, and other requirements that fall under the general heading of probation.

Typical misdemeanor probation terms include counseling, community service, work project, and restitution, but can also include requirements to abstain from use of alcohol, maintain a clean criminal record, or stay away from certain persons or locations. Generally, misdemeanor probation lasts one to three years, though in some cases it can extend to five years. Probation terminates at the end of the mandated period if all the requirements have been met.

What makes misdemeanor probation different than felony probation is that misdemeanor probation typically does not require the convicted person to report to a probation officer or appear in court on a regular basis. The convicted person is given the responsibility to abide by the probation terms.

Thus, there are problems only when the probation requirements are violated. Typical examples include failure to pay restitution, failure to enroll in or complete community service or counseling, possession of weapons or illegal drugs, or arrest for a new crime.

In some instances of probation violation, the court attempts to notify the defendant by sending a notice through the mail indicating that a probation hearing has been scheduled. In other cases, though, an arrest warrant is issued.

Probation violations can have serious consequences, including the imposition of harsher probation terms or even time in county jail. If you are facing charges of a probation violation in Sacramento, Yolo, or Placer counties, contact an experienced defense attorney.