June 2012 Archives

SCOTUS SAYS FAIR SENTENCING ACT APPLIES TO SOME DRUG CASES RETROACTIVELY

June 29, 2012,

Last Thursday, June 21, 2012, the United States Supreme Court issued decisions in Dorsey v. United States and Hill v. United States, stating that the Fair Sentencing Act of 2010 ("FSA"), designed to reduce the disparity between the sentences for federal criminal offenses involving crack and powder cocaine, applies to offenses committed prior to the law for which the offender was sentenced after its passage.

Importantly this does not apply to all cases involving individuals sentenced under the old rules. Instead, it relates only to the unique cases where the crime was committed before the law but the sentencing occurred afterward.

The FSA was intended to remedy the problems associated with the Anti-Drug Abuse Act of 1986 (ADAA"), specifically, its creation of an unfair sentencing system that disproportionately punished comparable offenses involving crack and powder cocaine, which are two forms of the same substance. The discrepancies in sentencing resulted from the ADAA's institution of a 100:1 ratio between the amounts of crack cocaine and powder cocaine needed to trigger minimum penalties. For instance, a 5-year minimum prison sentence would be triggered by a conviction for possessing with intent to distribute 5 grams of crack cocaine but 500 grams of powder. The FSA reduced the ratio from 100:1 to 18:1.

This discrepancy has long been a clear reminder of the illogical nature of many criminal sentencing rules. It remains very difficult to fairly enact general rules that place mandatory minimum sentences on various crimes without taking into account the specifics of each case.

The Supreme Court Rules The FSA Should Be Applied Retroactively

The Supreme Court's decisions hold that offenses committed before the enactment of the FSA but which were sentenced after should be sentenced based on the new 18:1 ratio. The Court concluded that, in passing the FSA, Congress clearly intended for the lesser penalties to be applied in such situations. In so holding, Justice Breyer, writing for the majority, opined:

We rest our conclusion primarily upon the fact that a contrary determination would seriously undermine basic Federal Sentencing Guidelines objectives such as uniformity and proportionality in sentencing. Indeed, seen from that perspective, a contrary determination would (in respect to relevant groups of drug offenders) produce sentences less uniform and more disproportionate than if Congress had not enacted the Fair Sentencing Act at all.

The Court hypothesized about a scenario in which two individuals that committed the same offenses and were sentenced at the same time would receive radically different sentences depending on whether the crimes were committed prior to the passage of the FSA, stating:
For example, a first-time post-Act offender with five grams of crack, subject to a Guidelines range of 21 to 27 months, could receive two years of imprisonment, while an otherwise identical pre-Act offender would have to receive the 5-year mandatory minimum.

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SCOTUS Strikes Down Mandatory Life Without Parole Law For Juveniles

June 29, 2012,

An important criminal law sentencing issue made national headlines this week as the U.S. Supreme Court issued a close, 5-4 ruling striking down one form of punishment for juveniles as unconstitutional. In Miller v. Alabama, the court held that mandatory life without parole sentences for juveniles was in violation of the U.S. Constitution's 8th Amendment prohibition of cruel and unusual punishment. Importantly, this ruling does not mean that juveniles convicted of the harshest crimes can never be sentenced to life without parole. Instead, the ruling only strikes down laws which mandate such a sentence. The court decided that judges must be given the option of considering an individual's age when finalizing the sentence.

This decision is similar to a string of cases decided by the court in recent years striking down harsh penalties for those who commit crimes before their 18th birthday. For example, in 2005 the court abolished the death penalty for juvenile criminals.

It remains unclear if the ruling will apply retroactively to those already convicted of mandatory life without parole for crimes committed as juveniles.

Did It Go Far Enough?
Two of the justices in majority--Justices Breyer and Sotomayor--wrote separately, noting that they would actually like the ruling to go even further. If they had their way the justices would prohibit all impositions of mandatory life in prison without parole for crimes where a defendant did not intend to kill or actually kill.

For example, one of the defendants in the Miller case was a 14-year old boy who robbed a video store with two teen friends. During the course of the robbery the boy was a "look out," standing outside of the store while his two friends went inside. While inside, one of the friends shot and killed the store clerk. The boy himself did not shoot the clerk or have any intention of doing so. Yet, because of "felony-murder" laws in the state, he was treated as having killed the clerk. That triggered the mandatory life without parole sentence.

Justices Breyer and Sotomayor argued that all defendants, even adults, charged with murder in this way--without committing the act themselves--should not receive life without parole.

The Law in California
California has laws that allow these juveniles to be sentenced to life without parole, but they are not mandatory. Judges always have the flexibility to lower a sentence as a result of the defendant's age. However, some state lawmakers are pushing for changes to the rules such that all life without parole sentences are prohibited. As reported this week in Mercury News, for example, State Senator Leland Yee has consistently pushed for legislation to get rid of the penalty. However, the measures have yet to advance in the statehouse.

In any event, those working closely on juvenile criminal issues applaud the common sense U.S. Supreme Court ruling, which ensure some fairness and individual analysis in all cases involving juveniles. .

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Irvine Attorney Lauren K Johnson Named Super Lawyers "Rising Star" for 2012

June 26, 2012,

We are proud to announce that Orange County criminal defense attorney Lauren K Johnson was named to the Super Lawyers "Rising Star" list for 2012. The list designates the top up-and-coming attorneys in the state under the age of 40 or in practice less than 10 years. Less than 2.5% of lawyers in the state receive the honor each year

The full Super Lawyers Rising Stars list can be viewed online here.

The List
Super Lawyers is an attorney rating service that provides public information on attorney quality and experience. It is widely recognized as the premiere attorney evaluation service, published consistently for the last two decades. The company explains that the annual Rising Star list is created to recognize a select group of attorneys in different practice areas that have attained a high degree of peer recognition and professional achievement.

It was noted that "the objective is to create a credible, comprehensive and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel."

The Selection
The Super Lawyers selection is a rigorous, multi-phase process. First, a candidate pool is created involving nominations from other attorneys as well as selections from the group's research team. All lawyers in the candidate pool are then individually evaluated for their work. The evaluations are based on various factors, including verdicts, experience, bar and professional activity, pro bono and community service, education, and other information. Before the list is created all final candidates are reviewed by their peers in the same practice areas.

Legal Help in Southern California
The Law Office of Lauren K Johnson is committed to protecting the rights of all those accused of crimes in our area. We are honored to have the opportunity to help local residents each and every day receive the legal advocacy they need.

From helping parents in Juvenile Dependency cases to fighting for the rights of those convicted of serious felonies, Attorney Johnson is a zealous advocate for all those facing charges. Please consider giving our office a call today if you or someone you know needs help.

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Two Irvine Attorneys Charged With Framing The PTA President By Planting Drugs In Her Car

June 21, 2012,

Irvine, California is known as a quiet and safe residential community. Those of us who work and live here enjoy this about Irvine. In what can only be described as "bizarre," the LA Times recently reported on developments in a drug plot case involving a Plaza Vista school volunteer and disgruntled Irvine parents who are also local attorneys.

According to reports, a couple, Kent and Jill Easter, apparently had a prolonged feud with a woman, Kelli Peters, who volunteered at the elementary school where the couple's son was enrolled. Peters is now the school's PTA President. The first disagreement was related to accusations by the couple that Peters locked the Easters' son out of the school. This led to a civil lawsuit filed by the couple that was dismissed. In addition, Mrs. Easter filed a request for a restraining order against Peters for allegedly "harassing and stalking" her along with making death threats. The restraining order request was denied.

The vendetta was taken to a new level, however, when the Easters allegedly planted drugs in Peters car and then made an anonymous call to authorities in an attempt to frame the PTA president. The call alleged that Peters was driving erratically and seen hiding drugs in her car's backseat. Authorities responded to the call and found the drug paraphernalia. However, after interviewing others and searching Peter's home the police did not find any other evidence to support drug possession or use.

Eventually, the police traced the drugs and anonymous tip back to Kent Easter. According to statements made by authorities, Kent Easter allegedly drove to the woman's house at night and planted prescription drugs, marijuana, and a used marijuana pipe in a visible position in the woman's backseat. Surveillance footage from a nearby hotel apparently show Easter making the anonymous call from a public phone.

The couple was arrested this week and charged with various felonies, including conspiracy to procure a false arrest, conspiracy to falsely report a crime, and false imprisonment. As with all felony charges, the potential punishment if convicted is severe. They each could face up to three years in prison. The couple is currently free on $20,000 bail and both are set for arraignment next month in Orange County Superior Court.


Criminal Defense in Southern California
This unique case is yet another reminder of the need for all those charged with crimes in our area to seek out an experienced California criminal defense attorney as soon as possible after an arrest. Imagine if authorities were not able to piece together the alleged set-up in this case. The school volunteer may have faced serious drug charges with untold consequences on her life.

While this case may seem one-of-a-kind, individuals with a bias are often motivated to engage in conduct that leads to false arrests and criminal charges.

Things are not always as they appear on their face. That is exactly why key tenants of the criminal justice system are a presumption of innocence and a burden on the prosecution to prove each element of the claim beyond a reasonable doubt. A skilled legal professional forces prosecutors to meet that burden and ensure that criminal defendants put their strongest foot forward throughout the process.

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Baby Soap Leads To False-Positive Newborn Marijuana Test Results and False Accusations

June 20, 2012,

Most residents never imagine it could happen to them: they are accused of child abuse. Unfortunately, there is often a misguided assumption that all those accused of abuse are guilty, because no one who provided proper care for their children would ever arose suspicion of mistreatment. Reality is much different. There are countless reasons why one might be wrongly accused of hurting a child. In some cases those children are actually taken out of the home and families are forced to engage in legal battles for reunification.

The false alarms take many forms, with mistakes rooted in the most unlikely places.

Soap & Marijuana
For example, last week MSNBC shared the details of a new study which found that a range of soaps used to wash babies shortly after birth may unintentionally result in false positive readings on drug screening tests. The soaps themselves do not have any adverse effect on the newborns, and so the safety of the product is not at issue. Instead, the concern is the effect that the false positive has on accusations of marijuana exposure directed at the mother.

The testing itself is done is usually done on newborns whose mothers are deemed "high risk," meaning that there may already be presumptions against these families which the false test results just exacerbate. It is not uncommon for social service departments to get involved following the test results. If allegations of abuse are made, an unsuspecting mother might be forced to engage in legal wrangling in order to prove her innocence and get her child back.

The Research
The findings were made by a group of researchers at a North Carolina hospital and published in this month's issues of the journal Clinical Biochemistry. The study itself was undertaken after nurses at a nearby hospital reported a mysterious increase in newborns testing positive for marijuana. Fortunately, the medical professionals realized that the test results seemed out of place; they guessed that another explanation was likely

The researchers examined urine samples from infants. They looked at samples which contained small, even minute, traces of five leading infant soaps--Johnson & Johnson's Head-to-Toe Baby Wash, J&J Bedtime Bath, CVS Night-Time Baby Bath, Aveeno Soothing Relief Creamy Wash, and Aveeno Wash Shampoo. They discovered that the soap in the urine sample translated into positive readings for the active ingredient in marijuana, tetrahydrocannabinol (THC).

Correcting the Problem
The researchers noted that the study is confirmation that nurses need to consider alternatives to ensure mothers are not falsely accused of drug use. If a drug test comes back positive at a hospital that is usually end of the analysis. The results are not sent to a laboratory for confirmation. That makes it even more important for hospital tests to be accurate. Researchers are not exactly sure why the soap causes the false reading in the traditional screening test. However, more sensitive tests are available which return accurate results without the soap-use distortion.

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Disabled California Prisoner Dies One Week Before His Scheduled Release Under the California Compassionate Release Law

June 12, 2012,

Terminally ill, convicted murderer, Carl Wade passed away in Vacaville State Prison last week. Wade's death has given rise to discussions about "compassionate release" laws as well as the possible equal protection constitutional questions they raise.

The Facts
Carl Wade was convicted for the first-degree murder of a roommate in 1986 and sentenced to 32 years to life in prison. Wade has been in state prison ever since. In 2007 he was classified as disabled and was recommended for release under the California compassionate release law. Almost a week before he was scheduled to be released, Carl Wade, 66, died in prison.

The Law
Both California and the federal government recognize compassionate release of prisoners under certain circumstances. Under 18 U.S.C. § 3582(c), a court may release a prisoner if there is a compelling and extraordinary reason to do so. Also if a prisoner is over 70 years of age and has served at least 30 years, the prisoner may be released early if it is determined that he or she is no longer a danger to people or the community.

Under California Penal Code Section 1170(e)(2), a court may resentence or recall a sentence if it finds that (1) a physician has determined that a prisoner is terminally ill and has six months or less to live, (2) the release conditions are such that the prisoner will not pose a threat to others or the community, and (3) the prisoner is permanently incapacitated and requires 24-hour care, and was not in this condition when he or she was initially incarcerated. Not all three conditions must be met, but either the first and second or the second and third must be met. The release provisions of this section do not apply to prisoners who have been sentenced to death or life in prison without the possibility of parole.

The Constitutional Question
Many have been asking whether compassionate release is unjust. Some are even going as far as claiming that compassionate release affords terminally ill patients greater protection under the law than healthy prisoners. The Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution guarantees individuals and groups equal protection under the law. This means that the state must treat an individual in the same way that it treats other individuals under similar circumstances and conditions.

Many attorneys argue that compassionate release can be afforded to any aging prisoner, since an aging prisoner would likely meet either conditions 1 and 2 or 2 and 3 above at some point close to the end of their lives. However, this may also raise equal protection questions regarding younger prisoners who have served an equal amount of time, but are not eligible for compassionate release because they are either too young or too healthy.

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Child Molestation And Life Sentences in California

June 6, 2012,

Under California Penal Code Section 288.7, a court may sentence a sexual offender to life in prison for acts "with a child who is 10 years of age or younger." Earlier this May, the California Supreme Court ruled that under Section 288.7 a life sentence may be imposed on a defendant convicted of sexual acts with a child who has not reached his or her 11th birthday.

The Case
The underlying facts in People v. Cornett involved allegations that the Defendant committed sexual acts against the victim, a child who was approximately 10 years and 11 months old at the time of the incidents. The Defendant was found guilty and given a life sentence for this and other convictions. The Defendant appealed his conviction, arguing that the child was not "10 years of age or younger" under the meaning of the statute because she had passed her 10th birthday. The California Court of Appeals agreed with the Defendant, holding that sexual acts against children past their 10th birthday were not included within Section 288.7. The California Supreme Court disagreed with the appellate court's interpretation of the phrase "with a child who is 10 years of age or younger" and reversed.

The Law
California Penal Code Section 288.7, which was passed as part of the Sex Offender Punishment, Control, and Containment Act of 2006, states that any person over the age of 18 found to have engaged in sexual intercourse or sodomy "with a child who is 10 years of age or younger" is guilty of a felony punishable by 25 years to life in prison. The California Supreme Court in People v. Cornett clarified the meaning of the term "with a child who is 10 years of age or younger."

According to the Court, the phrase "with a child who is 10 years of age or younger" should be given its conventional meaning, describing a child who has passed his or her 10th birthday but has not yet reached his or her 11th birthday.

This less restrictive meaning than the one proposed by the Defendant, in the opinion of the Court, is more in step with the purpose and scope of what the California legislature intended when they wrote the Sex Offender Punishment, Control, and Containment Act of 2006 (Act). According to the Court, the principal purpose of the Act was to prevent future acts of victimization of the community by sex offenders. Further, a number of provisions in the Act focus particularly on protecting children.

Even though this ruling did not have a real effect on the Defendant's sentence, since he was sentenced to 160 to life in prison, it will have a very real effect on offenders whose victims are between the ages of 10 and 11.

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California Marijuana Law Basics

June 1, 2012,

Attitudes about marijuana are changing. However, a recent LA Times poll suggests that, from a poll of 1000 people, Californians seem to be lagging behind the rest of the country in attitudes about legalization. Of the LA Times sample (which is small), about half of those interviewed opposed legalization of marijuana. The biggest divides were by age, with Californians under 50 far more in favor of legalization than their parents and grandparents. Big divides exist also by political affiliation, with Democrats leading Republicans in support and Independents outshining both. As public perception of marijuana changes, it is still important to know the current state of the law in California regarding marijuana and the numerous offenses related to its possession, transportation, use, and sale. Among the marijuana-related crimes are possession for personal use, possession for sale, sale, cultivation, and DUI of marijuana.

Possession of marijuana for personal use in California is ruled by Health And Safety Code (HSC) Section 11357. Possession of 28.5 grams (one ounce) or less is considered an infraction and is punishable by a fine of up to $100. However, possessing any amount within a school is a misdemeanor with higher fines and possible jail time.

Possession of more than one ounce of marijuana is a misdemeanor and punishable by a fine of up to $500, six months in jail, or both. A misdemeanor conviction for marijuana possession appears on a person's criminal record. However, an experienced criminal attorney may be able to arrange an "informal diversion" program where a defendant agrees to undergo treatment, attend N.A. meetings, or perform community service in exchange for a dismissal of the charges.

Possession of marijuana for sale is a felony under California HSC Section 11359, regardless of the amount. A person convicted of possession with the intent to sell may be sentenced to up to three years in jail. A person will often be charged with intent to sell if there is evidence of scales, packaging supplies, multiple packages, large amounts of marijuana, large amounts of cash, etc.

Selling, transporting, or distributing marijuana is a felony in California and punishable by up to four years in a California state prison. In individual who transports of gives away 28.5 grams or less may be found guilty of a misdemeanor and given a fine of up to $100. Police often set up undercover or surveillance operation to catch dealers in the act of selling the marijuana. Recently police have also been cracking down on Internet sales by posing as buyers on Craigslist and other sites.

Cultivation of marijuana, regardless of the amount, is a felony under California HSC Section 11358. Under Penal Code Section 1000, however, individuals who cultivate marijuana may be eligible for diversion as long as there was no intent to sell. Senate Bill 420 and the Compassionate Use Act of 1996 allow individuals limited permission to grow marijuana for medical and personal use.

Driving under the influence of alcohol or drugs, including marijuana is unlawful under California Vehicle Code Section 23152(a). A law enforcement officer may perform a field sobriety test, and the driver will be given a choice of either a blood or urine test. Both tests are problematic, since unlike alcohol, which stays in the body for a few hours, marijuana remains in the body sometimes for up to a month.

HSC Section 11362.5, also known as Proposition 215, or the Compassionate Use Act of 1996, allows restricted permission to patients under medical care as well as their caregivers to possess and cultivate marijuana. A patient and caregiver must have written permission from a doctor and sometimes individuals also obtain a county issued marijuana health card. Marijuana obtained for medical purposes may not be sold or given away.

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