Sacramento Criminal Defense Lawyer Blog

The U.S. Supreme Court issued a ruling yesterday strongly stating that government use of a GPS device without a warrant constitutes an illegal search. Even though the justices were divided on the rationale for and implications of their decision, the 9-0 vote suggests that future cases involving government gathering of data via electronic or digital sources will be met with skepticism.

U.S. v. Jones concerns an investigation by local Washington, D.C., law enforcement and the FBI of Antoine Jones, who was suspected of being involved in drug trafficking. As part of the surveillance, a GPS device was attached to Jones's car for a month without first obtaining a search warrant from a judge. Because of the data obtained from tracking device and other information gathered during the investigation, Jones was arrested, eventually convicted, and given a life sentence.

Jones's appeal challenged the government's warrantless use of the GPS device, claiming that it constituted an unreasonable search and thus violated the Fourth Amendment. An appellate court agreed with him and overturned his conviction. The Supreme Court heard arguments in the case last fall.

Though the Court unanimously sided with Jones, it split into two groups that used different rationales for overturning his conviction. The majority opinion, authored by Justice Antonin Scalia, focused on the "physical intrusion" that resulted from the placement of the GPS unit on Jones's vehicle. The Fourth Amendment, the majority said, protects people's property from trespass by government. Attachment of the GPS device constituted a trespass and therefore a search, which requires a warrant. Since the police failed to obtain a warrant, the evidence obtained should have been suppressed at trial. The minority opinion, authored by Justice Samuel Alioto went further, stating that the gathering of information via the GPS unit constituted a violation of privacy.

This decision, and the various arguments offered by the justices, will have ramifications for future cases that involve other electronic data and communication, such as email, texts, and records of cell phone location and website traffic.

A California appellate court (Fourth District, Division Two) has issued a decision relating to the definition of reasonable doubt in jury instructions. The decision focuses specifically on the meaning of "abiding conviction" and how judges explain that term to jurors.

The case of People v. Muniz concerns a 2006 incident in which the defendant went with a group to a house, woke up its occupants, smashed car windows, and attacked a teenage girl and boy. Muniz was convicted of vandalism and assault. He challenged his conviction on the grounds that the judge gave jurors improper instructions relating to the reasonable doubt standard, and that information of a prior conviction should not have been admitted as evidence.

The court's majority rejected his appeal. However, a dissenting opinion by Judge Miller agrees with the defendant. We find Judge Miller's arguments persuasive and believe that the court majority made the wrong decision. The discussion below relates to the meaning of "abiding conviction," the focus of Judge Miller's dissent.

The case pivots on the meaning of jury instructions concerning the concept of reasonable doubt. Jurors in California hear this description before a trial begins: "Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true."

At issue in this case is what the trial judge told jurors after reading that description. First, he said that proof beyond a reasonable doubt "leaves the minds of the jurors in that condition they cannot say they feel an abiding conviction of the truth of the charge." After explaining that jurors must have a "abiding conviction" that the charge is true, the judge went on to say that "abiding conviction" means "a long-lasting belief [that] when you come to a verdict you will be comfortable with it the day you do it, two months or a year from now."

The defense attorney asked the judge to change his instructions, asserting that the judge's explanation lowered the standard of proof needed for conviction. The judge refused to do so.

The appellate court's majority sides with the trial court, saying that the trial judge's use of the word comfortable pertained to the duration of the feeling, not its depth.

Again, we disagree with the majority and think that the dissenting opinion got it right. Judge Miller argues that "abiding" pertains to "how strongly and how deeply [the juror's] conviction must be held." Thus, a juror's belief that a defendant committed a crime must be lasting and permanent and deeply felt. The word "comfortable" does not convey this meaning.

Moreover, Judge Miller wrote, the trial judge created confusion when he initially told jurors that they did NOT need to have an abiding conviction about the veracity of the charges, and then provided the explanation about abiding conviction as a long-lasting belief.

The point here is that the instructions given by judges can have a great impact on how jurors decide a case. Defense attorneys must make sure that the correct instructions are given and that their clients' rights are protected.

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 U.S. Supreme Court has ruled that when a juvenile is a suspect in a police investigation, law enforcement must take into account the child's age when determining whether he is "in custody" and thus must be given a Miranda warning.

This decision concerns a North Carolina 13-year old (J.D.B.) who was suspected of being involved in break-ins at two homes. A police investigator came to the suspect's school, had him pulled from class, and then questioned him for 30-minutes. The investigator did not give him a Miranda warning, allow him to call his guardian, or tell him that he was free to leave. After initially denying involvement in the crimes, J.D.B. finally confessed after he was told he faced juvenile detention. It was only AFTER this admission of guilt that the investigator said J.D.B. was free to leave if he wished and could refuse to answer questions. J.D.B. nonetheless went on to provide additional information about the crimes, including a written statement. He was subsequently found delinquent of breaking and entering and larceny. This judgement was upheld by the North Carolina Court of Appeals and State Supreme Court.

The U.S. Supreme Court ruled that the state courts were in error in not allowing the defendant's age to be a factor in determining whether police had correctly applied the rules concerning a Miranda warning. The Court said that a juvenile's age must be considered when deciding whether a person understands his/her rights while interacting with law enforcement. It is not appropriate, said the Court, for the standard to be how a reasonable adult would act. According to the Court, it is not unreasonable to think that a 13-year old in a school setting, surrounded by school officials and law enforcement, would not understand that he could refuse to answer questions and demand to be "set free."

This is an important decision because it highlights the power wielded by law enforcement and how it must be tempered with reasonable rules that protect individual's rights. For example, in this case, J.D.B.'s age clearly had an impact on how he interacted with the police officer. In a school setting where he is under the control of adult authority figures (teachers and administrators), how does he demand to be "set free"? Where does he go if the questioning ceases? Would he be allowed to call his guardian? Does he even understand he has the right to not answer questions after he has been told by school officials to tell the truth? The Supreme Court has made a common sense decision by saying that someone's age must be a factor in issues of police custody and Miranda warnings.

It should be noted that the Court did not give specific guidelines regarding how age factors into questioning by police. It only said that is should be a factor for courts to consider. This particular case was sent back down to the North Carolina courts for review in light of the Court's decision.

J.D.B. v. North Carolina

A California appellate court (First District, Division Two) has issued a ruling that invalidates collection of DNA samples from people who have been merely arrested. The decision pertains to Proposition 69, passed by California voters in November 2004, authorizing expansion of the circumstances under which law enforcement could collect DNA samples. Though the court's ruling affects cases in its Bay Area district, it does provide case law that defense attorneys can refer to when similar issues arise here in Sacramento.

Much of the court's analysis focuses on the vast amounts of information that can be obtained from DNA analysis. According to the court, DNA samples are different than fingerprints because fingerprints can only be used for identification. DNA samples, in contrast, reveal vast quantities of personal data, including heredity and disposition to disease. And the scope of this information will only expand as DNA analysis and research progresses in coming years.

Because of this, the court declared, people have a right to privacy that government can breach only under limited circumstances. And merely being arrested doesn't pass the test. Collection of DNA samples from arrestees constitutes an unreasonable search in violation of the Fourth Amendment to the Constitution, a "warrantless and suspicion less" search not supported by previous rulings in state and federal courts.

The Attorney General's Office had argued in defense of the law that collection of DNA samples from arrestees is a valuable tool in fighting crime. The court, however, said that no matter how effective, the law is still an unconstitutional invasion of privacy.

It's important to note that this decision changes nothing about collection of DNA from people convicted of specific crimes, as delineated by various California laws. It only pertains to the collection of DNA from people who have been merely arrested.

The California Supreme Court has ruled that faxed copies may be admitted as evidence at trial under certain circumstances.

The ruling stems from the case of Danny Skiles, who was found guilty in 2007 of burglary and receiving stolen property. Separate from the jury trial on these charges, a court trial was held to determine whether a prior conviction in Alabama should be counted as a serious felony under California's three-strikes law. Certified copies of court documents from the Alabama conviction were introduced by the prosecution and deemed admissible as evidence. None of these documents, however, had a description of the manslaughter charge to which the defendant pled guilty. This description was needed to determine whether the defendant had inflicted great bodily injury. During a recess, the prosecuting attorney obtained a faxed copy of the needed document, which was submitted as evidence when the court trial resumed. The defendant's attorney objected that the document should not be admitted because it was a photocopy. The court overruled this objection and the description of the Alabama conviction was used to establish it as a strike. As a second strike offender, Skiles was sentenced to nine years in state prison.

It's important to note that the Supreme Court said that a faxed copy on its own would not qualify as admissible evidence. A faxed document qualifies under secondary evidence rules when its authenticity can be verified by other documents that have already been admitted into evidence. In Skiles case, the certified documents from the Alabama case could be used to verify the authenticity of the fax, which had the same certification stamp and court clerk signature as the previously certified documents.

People v. Skiles

A Citrus Heights man has been sentenced to four years in state prison after he gained access to women's Facebook accounts, found nude photos or videos of the women, and then distributed those images to people on the women's contact lists.

George Bronk pled guilty to violating Penal Codes 502(c)(1), 529, and 311.11(a).

PC 502(c)(1) makes it a crime to gain access to computer data with the purpose of deceiving, defrauding, or extorting. PC 529 makes it illegal to falsely impersonate someone. And PC 311.11(a) makes it a crime to possess or control an image of someone under the age of 18 engaged in or simulating a sexual act.

Beginning in late 2009, Bronk began gaining access to women's Facebook accounts by reviewing their Facebook pages and using the posted information to answer security questions, such as a person's elementary school. If Bronk found compromising photos or videos, he emailed those images to other people on the women's contact lists.

This case has two lessons. First, gaining access without permission to another person's online information is treated under the law just like entering someone's home without permission. In other words, it's an intrusion that can be charged as a criminal act. Second, the information that people post on Facebook and other social sites can be used by others to answer security questions allowing access to data and images that are supposedly private. Use a great deal of caution when posting and sharing information about yourself.

A Yolo County judge has issued a final decision in a case concerning the activities of the Broderick Boys gang in West Sacramento. Superior Court Judge Kathleen White's ruling affirms her previous decision that categorizes the Broderick Boys as a public nuisance and imposes an injunction that limits their activities within a "safety zone" in West Sacramento.

The injunction, which will remain in effect for the next seven years, prohibits these activities with the "safety zone," the area bordered by State Route 275, Harbor Boulevard, the Sacramento River, and the Capital City Freeway:

• Violating a 10 p.m. to 6 a.m. curfew
• Breaking any law
• Associating with other gang members in public
• Producing graffiti or possessing items used to produce graffiti
• Possessing drugs or alcohol
• Possessing weapons
• Intimidating witnesses
• Trespassing on private property

Today's decision is the culmination of an over five-year effort by the Yolo County District Attorney's Office to impose restrictions on gang activities in West Sacramento. The Broderick Boys, the D.A.'s office asserts, is a public nuisance because of its criminal actions. Gang members and their lawyers counter that the injunction's restrictions constitut an infringement of their civil liberties.

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.

A California appellate court has issued an interesting decision on pimping and its relationship to the right of association.

The case of People v. Grant involves Sean Ali Grant, who in 2007 began an "intimate relationship" with a woman. The two later began sharing an apartment, which the woman apparently also used when she worked as a prostitute.

In March 2009, police came to the apartment in response to a call from the girlfriend - who was trying to move out but was concerned because Grant was angry. Grant fled the apartment but was run down and arrested by the police. He was eventually convicted of a variety of violations, one of which was pimping under Penal Code 266(h)(a).

According to the girlfriend's statements to police, Grant had advertised her services, scheduled appointments for her, and hid in their apartment closet while she performed her services. Grant would then pick up the money when the customers left, keeping some for himself and giving some to the girlfriend.

Grant challenged the pimping conviction on the grounds that it violated his constitutional right to freedom of association. He argued that sharing an apartment with a prostitute is not an illegal act.

The court didn't buy his argument. It said it was apparent that Grant derived "support and maintenance" from his girlfriend's earnings as a prostitute, meaning that he earned money from arranging her activities. This doesn't mean, however, that any person who accepts money from a prostitute is guilty of pimping. For example, a psychologist might provide treatment to a prostitute and be paid with money earned from prostitution, but the psychologist would not be guilty of pimping under 266(h)(a) because he "derives his support from his own performance of services." Grant could not make this sort of defense, though.

A proposed ruling by Yolo County judge Kathleen White would restrict the actions of West Sacramento gang members. Specifically, the injunction - due to become final in the next few weeks - would place limits on members of the Broderick Boys gang associating in public, as well as institute a curfew from 10:00 PM to 6:00 AM.

This marks the latest stage of an over six year struggle between Yolo County law enforcement, residents of West Sacramento, and civil rights attorneys representing gang members. The district attorney's office and police argue that the actions of the Broderick Boys constitute a public nuisance that requires the injunction to protect West Sacramento residents. The gang members and their attorneys view it as a violation of their civil rights.

Attorneys representing the Broderick Boys vow to appeal the decision when it is issued in its final form.

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.

Earlier this week the U.S. Supreme Court ruled that criminal defense lawyers are obligated to warn immigrant clients of any deportation risks they face as a result of agreeing to a plea bargain.

The case concerns Jose Padilla, who in 2001 was arrested in Kentucky with 1000 pounds of marijuana in his vehicle. Padilla was born in Honduras but had lived in the United States for 40 years and was a legal permanent resident, even serving in the U.S. Army in Vietnam.

Padilla's attorney at the time incorrectly told him that his guilty plea would not result in deportation. But as soon as Padilla finished serving his prison sentence, the federal government moved to return him to Honduras because his immigrant status meant that conviction of the felony would be grounds for deportation. Padilla appealed, arguing that his Sixth Amendment right to counsel had been violated since his attorney had improperly advised him.

The Court agreed with Padilla that his attorney's incorrect advice led him to enter a guilty plea that was not in his interests. But the Court went further. John Paul Stevens wrote in his majority opinion that defense attorneys must explain deportation risks to their immigrant clients. "The severity of deportation -- the equivalent of banishment or exile -- only underscores how critical it is for counsel to inform her noncitizen client that he faces a risk of deportation."

Whatever your citizenship status, if you're faced with criminal charges, you need a quality defense attorney who knows the law.

Padilla v. Kentucky (2010)
"Court Requires Warning About Deportation Risk," New York Times, March 31, 2010

The tortured tale of time credits at the Sacramento County jail seems to finally have come to a close. Judge Loren McMaster on Friday ruled against the request by the Sacramento Sheriff's Deputies Association to block implementation at the jail of a new state law increasing the amount of early release time inmates could earn for good behavior.

The ruling comes after a hearing that saw the sheriff's deputies association on one side arguing against the new law, and the Sacramento district attorney's office, Sacramento public defender's office, and the state attorney general's office all on the other side arguing for it.

Keep in mind that before this new law went into effect January 25, state prison and county jail inmates in California were already able to earn early release if they met good behavior requirements. All the new law did was increase the amount of credit that could be earned. (See our previous posts for full explanations of this.) The new law was seen as necessary because of the twin problems of budget constraints and overcrowding in jails and prisons.

Throughout this battle, the sheriff's deputies association has made two arguments: the new law was meant to increase time credits at state prisons only, not county jails; and the increased number of prisoners obtaining early release would endanger the public.

In the end, McMaster was not persuaded. County jail inmates will now get one day of credit toward early release for each day they serve with good behavior.

The actions by the deputies' union do raise questions, though, especially after the deputies were opposed in court by their law enforcement partners, the district attorney and the attorney general. It seems clear to us that the new law applies to county jails, not just state prisons. If the deputies want to return to the provisions of the old law, they are better served trying to get the legislature and governor to pass an amended law rather than circumventing the legislative process.

What was their motivation?