Sacramento Criminal Defense Lawyer Blog

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?

The new state law that increases the amount of time a jail sentence may be reduced for good behavior continues to be the subject of an ill-considered legal battle in Sacramento County. (For a review of the law's provisions, see our previous post.)

The superior court judge who last week issued an order blocking enforcement of the law yesterday reversed himself and said that the law must be implemented until county jail inmates are able to bring their legal concerns before the court. "While county jail inmates may not be indispensable parties in the technical sense," Judge Loren McMaster wrote, "they are real parties in interest since the resolution of this matter directly affects them and their status."

While we're pleased that McMaster has temporarily allowed the law to be implemented, we still disagree with his original ruling. The legislature clearly meant for the new law to merely amend a previous state law that already allowed state prison and county jail inmates to be released early for good behavior. All the new law did was increase the amount of credit that could be earned in an attempt to relieve prison and jail overcrowding.

Sadly, McMaster's rulings have only resulted in confusion and inequity. We know of at least one inmate who got caught in the middle of this wrangling and received no credit at all for good behavior, because he entered Sacramento County Jail just as McMaster issued his original injunction blocking the new law, and was released today, just as the injunction was lifted.

At least one issue has been clarified: The California Attorney General's Office has advised the Sacramento Sheriff's Department, which oversees the jail, that the new system of determining time credits should only apply to time served after January 25.

More on this issue as it develops.

"More inmates to be released early as Sacramento judge rescinds earlier order," Sacramento Bee, February 17, 2010

The First Appellate Court of California last week issued a decision that should be heeded by any person facing criminal charges and considering a police offer to reduce or dismiss those charges in exchange for cooperation in an investigation. In short, the court said that only the district attorney has the authority to reduce or dismiss charges. Any defendant offered a deal by police to "make the charges go away" has to ask for explicit confirmation from the D.A.'s office before agreeing to cooperate. Without such approval, a cooperation agreement lacks authority and leaves the defendant with little recourse if the D.A. later decides to press charges.

The appellate court's decision had two parts. First, it said that, though little state case law exists on cooperation agreements, federal case law clearly says that agreements between law enforcement and defendants are not binding without the approval of prosecutors. Thus at the local level, the authority to bring charges against a defendant rests solely with the district attorney's office. To decide otherwise, the court argued, would raise the possibility that a junior member of a police force could on her own negotiate dismissal of charges in exchange for assistance with an investigation.

The second part of the court's decision dealt with constitutional issues. A cooperation agreement could be enforceable without prior consent of the district attorney only if there had been a violation of the defendant's due process rights, such as incriminating himself or forgoing the right to counsel. When there is no "detrimental reliance" involving a constitutional consequence, the cooperation agreement need not be enforced.

Obviously, the problem here is that few defendants are aware of the distinction between police and prosecutor (they're both looked at as part of one law enforcement team) and hardly any defendants will be aware of this appellate court decision. What we can end up with is some police officers taking advantage of this lack of understanding on the part of defendants and convincing them to cooperate without explaining the need for D.A. approval of reduction of charges. And according to this decision, the defendants will have few if any means to enforce a cooperation agreement if the D.A. balks.

Thus, the First Appellate Court's decision is a cautionary tale with a clear moral: If the police offer you a deal in exchange for cooperation, the first thing to do is demand to speak with a lawyer, and the second is demand confirmation from the district attorney's office. Without that explicit affirmation from prosecutors, a deal to help with an investigation in exchange for a shorter sentence or reduced charges is no deal at all.

Cases of this kind require representation by a quality criminal defense attorney. If you have questions about a cooperation agreement, call the Law Office of Nancy King for a free and confidential consultation.

People v. C.S.A.., Court of Appeal of the State of California, First Appellate District

People who have a "juvenile delinquency adjudication" - commonly referred to as a juvenile record - may petition the court to have that record sealed through the provisions of California Welfare and Institutions Code Section 781. As with expungement for adults, sealing of juvenile records is important for people who violated the law in the past but have since that time maintained a clean record and been contributing members of society.

It's important to understand the difference between juvenile and adult courts. Adult criminal courts in California deal with people 18 years of age and older accused of violating state and local laws. Adults found guilty of misdemeanors or felonies have a criminal record. It is possible at a later date to have this record expunged, whereby the conviction is replaced by a dismissal if specific requirements are met and the court believes that the person has learned from his/her experience. (See all our posts on expungement.)

Juvenile courts deal with minors, people 17 years of age and younger. A person found guilty in juvenile court has a juvenile delinquency adjudication rather than a criminal conviction. The idea is that since young people are not always appreciative of their responsibilities as citizens and understanding of the consequences of their actions, they should not have the stigma of a criminal conviction. Nonetheless, juvenile violations can still hinder people's ability to obtain employment or apply for college, even though they can legally answer no if asked if they have a criminal record. Thus the importance of having juvenile records sealed.

Having juvenile records sealed means that the court orders that all documents pertaining to the case - court records, police and probation reports - are sealed and inaccessible. (Exceptions to this are DMV records pertaining to driving violations.) Once the records are sealed, a person may legally say that he has no convictions and the courts and law enforcement must say that they have no record of a violation. Records are destroyed five years after they are sealed.

You may petition to have your juvenile records sealed if:

• It has been five years since your supervision by juvenile court ended or you have reached 18 years of age, whichever comes first;
• Your case began and ended in juvenile court;
• You have not been convicted of an adult court felony, or an adult court misdemeanor involving moral turpitude;
• You have not been convicted of any crimes listed under California Welfare and Institutions Code Section 707(b) after turning 14 years of age, including murder, arson, violent felonies, robbery, certain types of assaults and sex offenses and other serious violations;
• You can demonstrate that you have been rehabilitated;
• You do not have civil actions pending against you related to the incident that you wish sealed;
• You have paid all fines and restitution.

Continue reading "Sealing Juvenile Records" »

The previous post described the process when someone is charged with a misdemeanor. Today's post reviews the process for a felony charge. Though the basic outline is the same, some important steps are added since felonies constitute more serious offenses and carry the possibility of state prison terms of 16 months or longer, a combination of probation plus up to one year in county jail, stiffer fines, and in extreme cases even the death penalty. Examples of felonies include drug possession and distribution, sexual assault, aggravated assault, felony DUI, grand theft, arson, and homicide.

The felony process:

Arrest: This occurs after law enforcement has sufficient evidence that a crime has been committed. In some instances police will issue an arrest warrant after conducting an investigation. In others, police will make an arrest as a result of evidence that comes before them in the field; the incident reports are then submitted to the district attorney's office for filing of a criminal "complaint." In still other cases, the police do not make an arrest but instead submit the investigation to the district attorney's office, which will then request an arrest warrant after filing a complaint.

First Arraignment: The defendant is brought before a judge to hear the charges - in the form of the complaint - and to enter a plea of guilty or not guilty. Silence by the defendant is interpreted as a not guilty plea. The judge ensures that the defendant knows his/her constitutional rights, such as the right to legal counsel and trial by jury. If the defendant is in custody, bail is set.

Preliminary Hearing: This must occur within 10 court days of the first arraignment unless "time is waived" by the defense [see explanation below]. The preliminary hearing requires the judge to determine whether sufficient evidence exists to maintain the criminal charges against the defendant and continue to the trial phase. While the standard used at trial is guilt beyond a reasonable doubt, the standard at the "prelim" is probable cause. The prosecution calls witnesses and presents evidence in an attempt to convince the judge that there is good reason to believe that a crime was committed and that the defendant committed it. The defense attorney may cross-examine the prosecution's witnesses and call her own witnesses and present evidence to challenge the charges. There is no jury at the prelim; the judge makes the final ruling whether the case should move forward as a felony, be recharged as a misdemeanor, or be dismissed altogether.

Waiving time: The defense frequently waives time between the arraignment and the preliminary hearing, meaning that the prelim may be scheduled later than 10 court days after the arraignment. This gives the defense attorney time to conduct an investigation, gather information, and negotiate with the district attorney.

Second Arraignment: After the preliminary hearing the district attorney files what's called an Information. The defendant is again brought before the judge to be arraigned on the Information, to hear the charges, and to enter a plea of guilty or not guilty.

Continue reading "Steps in the Criminal Justice Process: Felonies" »

Crimes are divided into three categories: infractions, misdemeanors, and felonies. (See our September 21 post for a detailed description of each of these.) Though each is dealt with according to the same general rules as it winds its way through the criminal justice system, more severe crimes follow a more complex and lengthy path.

Infractions like traffic tickets are pretty simple. Since no arrest is made, people cited for infractions can either pay the fine or contest the citation in court. Generally, defense lawyers and prosecutors are not involved. Instead, a judge handles review of the matter, determines whether the infraction was properly issued, and sets appropriate fines, if any are necessary.

Misdemeanors and felonies, because the potential penalties are more severe, involve more people and have more stages before a final decision - or verdict - is made. Today's post outlines the misdemeanor process. Our next post will review the felony process.

In each of these processes, a wide variety of people are involved: judges from the judicial branch of government; police/sheriff/CHP, prosecutors, and probation officers from the executive branch; defense attorneys; jurors. All play a different role as the allegation is reviewed and determination of guilt or innocence is made.

Misdemeanors - such as petty theft, reckless driving, first time DUI, simple assault and battery, possession of less than one once of marijuana, and under age drinking - carry penalties of up to one year in county jail, fines of up to $1000, counseling, and/or work project.

These are the stages in the misdemeanor process:

Arrest: This occurs after law enforcement has sufficient evidence that a crime has been committed. In some instances police will issue an arrest warrant after conducting an investigation; in others, police will make an arrest as a result of evidence that comes before them in the field (e.g., they see someone selling drugs or committing a battery). The incident reports are then submitted to the district attorney's office for filing of a criminal "complaint."

Arraignment: The defendant is brought before a judge to hear the charges - in the form of the complaint - and to enter a plea of guilty or not guilty. Silence by the defendant is interpreted as a not guilty plea. The judge ensures that the defendant knows his/her constitutional rights, such as the right to legal counsel. Bail may be set, though misdemeanors generally have low bail requirements; often defendants are released on their own recognizance.

Continue reading "Steps in the Criminal Justice Process: Misdemeanors" »

Yesterday's post summarized newly passed California state law AB 91, which establishes pilot programs in Sacramento, Los Angeles, Alameda, and Tulare counties requiring people convicted of DUIs to have ignition interlock devices (IIDs) installed on their cars. Today's post explains why we think this new law should be challenged as unconstitutional. While we're sure that supporters of AB 91 are well intentioned and desire only to curtail drunk driving, we nonetheless believe that the law is a violation of the equal protection clause of the 14th Amendment.

Here is our argument: It is one thing for the state to set up general parameters for programs and then let localities decide for themselves the best means of implementation; it is another, and we think untenable, matter for the state to impose harsher penalties on the residents of four counties in the state and leave the penalties for residents of the rest of the counties unchanged. AB 91's IID requirement for Sacramento, Los Angeles, Alameda, and Tulare counties imposes just this sort of inequitable system. Calling it a pilot program doesn't justify or validate the uneven terms of punishment. What's to keep the legislature from passing a law mandating that people living in northern California automatically lose all driving privileges for 15 years after a first-time DUI conviction? Nothing except common sense (which the legislature often lacks) if AB 91 is allowed to stand.

Again, we support programs that reduce not just the number of DUI convictions but also the number of drunk drivers on the road, as long as those programs do not violate our rights granted by the U.S. Constitution. We see this law, no matter how well intentioned, as a violation of the 14th Amendment's promise of equal protection under the law.

We would rather see discretion left with the courts or even a statewide program that gives people convicted of DUI the option of having the IID installed on their vehicles in lieu of a license suspension. Many people lose their jobs when their driver's licenses are suspended as a result of a DUI conviction. The IID would be a good alternative that would keep people from driving while intoxicated, allow them to keep their jobs, and remain productive members of society.

Text of AB 91

We're putting the finishing touches on a post stating our concerns about AB 91, the new California law requiring ignition interlock devices on vehicles operated by DUI offenders, signed yesterday by Governor Schwarzenegger. In a nutshell, our reservations deal with what we see as the law's violation of citizens' 14th Amendment equal protection rights. In the meantime, we're providing this summary of the law's provisions.

AB 91 does nothing to change the current system of license suspensions and other penalties for DUI convictions. It establishes a pilot program in Sacramento, Los Angeles, Alameda, and Tulare counties requiring people convicted of DUIs to have ignition interlock devices (IIDs) installed on their cars. This test program begins July 1, 2010, and expires on January 1, 2016, unless the legislature acts to renew it and possibly expand it to the rest of the state.

People convicted of DUI (California Vehicle Code 23152) will have to install IIDs on all vehicles they operate for these periods of time:
First offense - 5 months
Second offense - 12 months
Third offense - 24 months
Fourth offense - 36 months

People convicted of DUI and causing injury to another person (California Vehicle Code 23153) will have to install IIDs on all vehicles they operate for these periods of time:
First offense - 12 months
Second offense - 24 months
Third offense - 36 months
Fourth offense - 48 months

AB 91 requires that DUI offenders pay for the approximately $75 installation cost of the IIDs and $50 monthly monitoring expense unless they meet these criteria:
100% of the federal poverty level or less - pay 10% of the cost
101 to 200% of the federal poverty level - pay 25% of the cost
201 to 300% of the federal poverty level - pay 50% of the cost

Continue reading "AB 91: California's New DUI Law Requiring Ignition Interlock Devices" »

Reasonable doubt is one of those concepts we hear so often that it's easy to accept as a truth without considering its precise meaning. As a follow up to our September 29 post on presumption of innocence, today's post will explore what is meant by this fundamental principle of the American justice system.

Before jurors begin hearing testimony and seeing evidence in a criminal case, the judge gives them instructions on topics ranging from confidentiality to note taking to what to do if they have questions. In California, jurors hear this explanation of reasonable doubt: "Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt."

Attempts have been made in recent years to clarify jury instructions, but this definition of reasonable doubt can still leave people outside the legal system scratching their heads. To gain a clear understanding, it's best to build backwards, first exploring what is meant by "doubt," then "reasonable," and finally "beyond." Before we do that, a reminder: the burden of proof in criminal proceedings is on the prosecution. Because of the presumption of innocence, the state has to convince the jury that the defendant is guilty. And the standard that must be met is guilt beyond a reasonable doubt.

"Doubt" in this context refers to uncertainty. If I doubt that someone committed a crime, I'm not convinced that he did it. The standard for determining guilt, though, isn't concerned with unreasonable, fanciful doubts. What we care about are "reasonable" doubts, plausible alternative explanations that keep a reasonable person from saying with certitude that a defendant is guilty.

Finally there is "beyond." Though in everyday language beyond might have a connotation of distance, in relation to reasonable doubt it really means "eliminating" or "excluding."

So when we say that the standard in a criminal trial is proof beyond a reasonable doubt, we mean that a reasonable person has looked at the evidence and is left with only one plausible explanation: the defendant did it. If that standard is not met, then a jury must acquit the defendant.

Continue reading "Reasonable Doubt" »

Since Roman Polanksi was arrested in Switzerland two weeks ago, the airwaves, print pages, and blogosphere have been inundated with people voicing either their pleas for Polanski's release or stating their disgust at his crime and satisfaction that he might wind up behind bars. Though this is a criminal defense blog, we feel the need to add to the chorus voicing support for Polanski's extradition.

You're probably familiar with the details, but here is a brief summary. In 1977, Polanski was arrested in Los Angeles for plying a 13 year-old girl with alcohol and drugs and then raping her. He agreed to plead guilty to a lesser charge of unlawful intercourse with a minor and was given a 42-day jail sentence, to be served after completing a film under production at the time. After finishing the project, though, he promptly skipped off to France, where he has citizenship, and remained free for the next 32 years. He was arrest when he traveled to Switzerland to receive a lifetime achievement award at a film festival.

To us, the issue is simple and rests on the constitutional guarantee of equal treatment under the law. Just as the poor, marginalized, and powerless of our society should not be deprived of their constitutional protections when faced with criminal charges, the wealthy, famous, politically powerful, and social elite should not be granted preferential treatment.

A number of entertainment industry titans have said that Polanski should be set free because - pick one - the incident was a "mistake" that happened a long time ago, it wasn't actually a rape, attendees at film festivals should be free from the threat of arrest, and artistic talent trumps culpability for criminal acts.

We are not persuaded. Equal treatment under the law means just that. Everyone gets treated the same. The most disadvantaged person in our society must have the same privileges and immunities as the most powerful. Polanski pled guilty. He needs to face the consequences. End of story.

DUI penalties have become substantially more severe in California over the last 10 years as a result of the nationwide campaign against drunk driving. This makes it imperative that people do what it takes to not drink and drive. For common sense suggestions to keep yourself and others safe, see our August 18 post.

The penalty a person receives for a drunk driving conviction depends on two factors: the number of prior convictions and aggravating circumstances. Here's a basic outline of possible penalties without consideration of aggravating issues.

First offense DUI -- Fines between $390 and $1000, jail time from 48 hours to six months, license suspension for six months, probation from three to five years, and other penalties
Second offense DUI -- Fines between $390 and $1000, jail time from 10 days to one year, license suspension for one year, probation from three to five years, and other penalties
Third offense DUI -- Fines between $390 and $1000, jail time from 120 days to one year, license suspension for two years, probation from three to five years, and other penalties
Fourth offense DUI -- Fines between $390 and $1000, jail time from 180 days to one year, license suspension for three years, and other penalties. A fourth DUI is a felony offense if all previous DUI convictions occurred within 10 years.

For each of the offenses outlined above, keep in mind that fees and penalty assessments can increase fines 500% or more.

Continue reading "DUI Penalties and Prior Convictions" »

A recent ruling by the U. S. Ninth Circuit Court of Appeals brings together federal agents, computer data files, Major League Baseball players, and steroids in a fascinating defense of privacy against unreasonable government searches. Though the court's decision is tailored only to federal law enforcement, it does provide a glimpse of rules that state and local police may be subject to in the future.

In brief, the Ninth Circuit Court's decision in United States v. Comprehensive Drug Testing, Inc. (U.S. v. CDT) says this: (1) a warrant to search through a computer database does not grant federal agents the authority to open all files in that database; (2) federal judges in the Ninth Circuit District granting future search warrants of this type must require federal agents to waive the "plain view" rule as it applies to electronic records; (3) personnel who are not law enforcement agents must review the files in the seized database and then pass along to federal agents information related to the scope of the search warrant.

At this point, only federal warrants in the district covered by the court's decision (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington) must abide by these rules.

Here's the background: in 2003, federal agents obtained computer data as part of an investigation into the use of performance enhancing drugs by Major League Baseball players. Federal agents were searching for information on ten players in particular, but during their review of the computer files they came across evidence that incriminated other people as well.

Continue reading "The Fourth Amendment, Search Warrants, and Electronic Evidence" »

A central tenet of the U.S. criminal justice system is presumption of innocence, a safeguard of the rights of American citizens since the nation's founding. In today's media saturated world, however, where information zips from terminal to terminal in seconds and people believe they know the truth because they have read something online or seen something on TV, it's important to remind ourselves of the importance of the presumption of innocence, which places the burden on state prosecutors to prove guilt, not on the accused to demonstrate innocence.

Considering someone innocent until proven guilty is actually not explicitly stated in the U.S. Constitution. Instead, it is implied in various amendments such as the Fourth Amendment prohibition against unreasonable searches by the government, the Fifth Amendment guarantee that a person cannot be compelled to be a witness against himself, and the Sixth Amendment rights of the accused to confront witnesses against him and to have the assistance of legal counsel. Through court decisions and federal and state laws, presumption of innocence has been infused throughout our criminal justice system.

Of course, this presumption applies only to the government, in the persons of law enforcement and the judiciary. It does not apply to the news media and private citizens. When confronted with a crime, they are free, because of the First Amendment, to make any suppositions they desire about who did what to whom and why.

The problem is that often this speculation is based on incomplete and incorrect evidence. Law enforcement, prosecutors, and defense attorneys are sometimes precluded by court order from disclosing details of a live case, but usually they refuse to divulge information for the simple, essential purposes of protecting the privacy of people involved as well as preserving the integrity of the legal system as a whole. The fact is that when a criminal complaint is filed, it is often based on untested information: a witness who hasn't been subjected to cross-examination, a portion of an audiotape or videotape that hasn't been reviewed in total, an investigation that is incomplete.

Continue reading "Presumption of Innocence and Electronic Media" »

As a follow up to our last post comparing felonies, misdemeanors, and infractions, today's post reviews expungement, the process by which some people can have convictions removed from their criminal records.

California Penal Code 1203.4 provides certain people convicted of crimes the opportunity to have their criminal records expunged. Expungement is meant for people who were found guilty of a crime but have subsequently turned their lives around. It is critical to remember that the criminal record remains; instead of a conviction, though, it shows a dismissal of the charges.

To qualify for expungement, a person must have completed probation, paid all fines and restitution, not spent time in state prison for the offense, and not currently have any criminal charges pending.

The person seeking the expungement has his/her attorney file a petition with the court asking for the case to the reopened and the conviction set aside. The petition identifies the previous conviction and describes the reasons the court should change the record from conviction to dismissal. Backing evidence, such as a written statement by the petitioner and letters from people who can attest to the petitioner's quality of character, is submitted to the judge for review. The role of the attorney is to convince the court that the petition has merit.

In most instances, expungement allows a person who has a conviction to say truthfully on an employment application that he has not been convicted of a crime. No matter the circumstances, expungement is seen as furthering justice and letting people who have become productive, law-abiding citizens the chance to participate in and contribute to society.

Continue reading "Expungement of a Criminal Record" »

As part of our ongoing effort to provide Sacramento Valley residents with a working understanding of our criminal justice system, today's post outlines the differences among felonies, misdemeanors, and infractions.

California defines criminal behavior primarily through its Penal Code, Vehicle Code, and Health and Safety Code. Crimes in each of these areas are divided into felonies, misdemeanors, and infractions. The category a crime falls into depends on the severity of the offense and the existence of any prior convictions on a defendant's record.

Infractions are the least severe and come with fines of up to $250 and no possibility of jail time. Examples are traffic tickets and some city ordinances.

Misdemeanors carry penalties of up to one year in county jail, fines of up to $1000, counseling, and/or work project. Examples include petty theft, reckless driving, first time DUI, simple assault and battery, possession of less than one once of marijuana, and under age drinking. Defendants in misdemeanor cases have the option to waive their right to appear in court and allow their attorney to appear for them.

Felonies constitute more serious offenses and carry the possibility of state prison terms of 16 months or longer, a combination of probation plus up to one year in county jail, stiffer fines, and in extreme cases even the death penalty. Examples of felonies include drug possession and distribution, sexual assault, aggravated assault, felony DUI, grand theft, arson, and homicide.

Some crimes - assault, DUI with injuries, drug possession, theft, vandalism, for example - are "wobblers," meaning they can be charged as misdemeanors or felonies depending on the circumstances.

Continue reading "California Felonies v. Misdemeanors v. Infractions" »