August 2012 Archives

High Profile California DUI Checkpoint Arrest

August 30, 2012,

Last Thursday, The Palm Beach Post reported that Joe Simpson, the father of famous singers Jessica and Ashlee Simpson, was arrested and charged with two misdemeanor counts of driving under the influence. He was stopped at a Sherman Oaks, California DUI checkpoint.

Checkpoints are an increasingly popular DUI interdiction tool in California among law enforcement agencies. The California Highway Patrol contends that it "began conducting sobriety checkpoint operations in 1984 to ensure the safe passage of each and every motorist traveling on California's roadways by targeting areas where there is a high frequency of impaired driving."
According to the California Office of Traffic Safety, it designated 2010 as the "Year of the Checkpoint," to mark the "significance of an increased commitment to this valuable deterrence and enforcement tool." The OTS claimed that it funded considerably more DUI checkpoints that year, 2,500, which represented a 44 percent increase over the previous year.

At a sobriety checkpoint, drivers are stopped without reasonable suspicion, and may be tested summarily and without probable cause, seemingly in conflict with the Fourth Amendment to the United States Constitution's prohibition against unreasonable searches and seizures.

In 1990, the United States Supreme Court addressed the apparent conflict in the Court's seminal case on DUI checkpoints, Michigan Dept. of State Police v. Sitz.

In Sitz, the Supreme Court acknowledged that, while sobriety checkpoints infringed on an individual's Fourth Amendment rights, the state interest in reducing drunk driving outweighed any minor infringement. Writing for the majority, Chief Justice William Rehnquist opined "No one can seriously dispute the magnitude of the drunken driving problem or the States' interest in eradicating it.***Conversely, the weight bearing on the other scale -- the measure of the intrusion on motorists stopped briefly at sobriety checkpoints -- is slight."

Currently, ten states, Idaho, Iowa, Michigan, Minnesota, Oregon, Rhode Island, Texas, Washington, Wisconsin, and Wyoming, have found that DUI checkpoints violate their state constitutions or have passed law prohibiting them. Alaska and Montana do not utilized DUI checkpoints even though they have not made them illegal. Of course, as this latest story reminds, California courts have found no such thing, and so the checkpoints are frequently used.

The effectiveness of DUI checkpoints is still a point of dispute, with proponents claiming they provide a deterrent effect and consistently reduce drunk driving, and opponents claiming they constitute a Fourth Amendment violation and are a poor way of detecting and preventing drunk driving. A 2008 study conducted in Kansas City, Missouri found that, of 18,747 cars stopped at sobriety checkpoints, only 1.6% of drivers were arrested for DUI.

Also, it is important to note that while these checkpoints have been found constitutional, there are rules to the way police officers must organize the checkpoint. Any violations from that protocol may constitute a violation of one's rights. A California DUI attorney can explain how the rules might apply in your specific case.

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California Supreme Court Prohibits Lengthy Sentences for Juveniles Convicted of Non-Homicide Offenses

August 22, 2012,

Yesterday, the California Supreme Court issued an important decision in People v. Caballero, holding that a lengthy prison sentence imposed upon a juvenile offender for a non-homicide offense effectively amounts to a sentence of life without parole. In so holding, the California Supreme Court relied upon the United States Supreme Court's 2010 decision in Graham v. Florida (2010) 130 S.Ct. 2011, wherein the Court ruled that a sentence of life without parole against a juvenile convicted of a non-homicide offense violates the Eighth Amendment's prohibition against cruel and unusual punishment.

In Caballero, sixteen-year-old Rodrigo Caballero fired shots at three members of a rival gang, injuring one. A jury found Caballero guilty of three counts of attempted homicide and the trial court sentenced Caballero to an aggregate term of 110 years in prison. Caballero would not be eligible for parole until 2112.

Writing for a unanimous Court, Justice Ming W. Chin opined, "We must determine here whether a 110-year-to-life sentence imposed on a juvenile convicted of non-homicide offenses contravenes Graham's mandate against cruel and unusual punishment under the Eighth Amendment. We conclude it does."

The Court continued, stating "sentencing a juvenile offender for a non-homicide offense to a term of years with a parole eligibility date that falls outside the juvenile offender's natural life expectancy constitutes cruel and unusual punishment in violation of the Eighth Amendment...[T]he state may not deprive them at sentencing of a meaningful opportunity to demonstrate their rehabilitation and fitness to reenter society in the future."

The Court also decided that its decision could be applied retroactively, declaring that "defendants who were sentenced for crimes they committed as juveniles who seek to modify life without parole or equivalent de facto sentences already imposed may file petitions for a writ of habeas corpus in the trial court in order to allow the court to weigh the mitigating evidence in determining the extent of incarceration required before parole hearings."

This is an important decision that offers one small step toward more fairness is the criminal sentencing process as it relates to juveniles. Society understands that those who commit crimes when they are young must be treated somewhat differently than adults. That includes ensuring that juveniles are not given effective-life sentences, without any realistic chance to re-enter society, following crimes committed in their youth.

Deputy Director and Chief Legal Counsel for the Juvenile Law Center, Marsha Levick hailed the Court's decision as a victory for juvenile offenders, "With this decision, the California Supreme Court has taken a bold, critical step in extending the Graham decision to terms of years sentences which are the equivalent of life without parole in all but name only. We believe that hundreds, if not thousands, of juvenile offenders are currently serving similar harsh sentences for non-homicide crimes in several other states across the country. This decision should have implications well beyond California's borders."

The Caballero decision is especially important given the current state of California's criminal laws. Many criminal offenses in California carry severe penalties, including lengthy prison sentences. Such penalties can be especially devastating in juvenile cases where consecutive prison terms could mean the offender will spend much, if not, all of his or her life in prison. The potential for unjust sentences are also more likely when juveniles do not receive the best criminal defense available following their arrest and conviction.

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Juvenile Charged With Theft of Celebrity Chef Guy Fieri's Lamborghini Suspected Of Escape Attempt from Juvenile Facility

August 16, 2012,

Reports from last Friday indicate that authorities foiled an escape attempt by teenager Max Wade who was charged last month with stealing celebrity chef Guy Fieri's Lamborghini in March of 2011. At approximately 4:30 a.m. on Friday, Marin County Juvenile Hall staff heard banging on the facility walls and, upon investigation, observed two individuals hitting the walls with a sledge hammer.

The individuals fled before authorities arrived at the scene and searched the buildings and surrounding neighborhood. Investigators discovered holes cut into two perimeter fences, a sledge hammer, bolt cutters and a damaged window at Wade's cell. Also found was a backpack containing a change of clothes.

Although authorities do not have evidence linking Wade to the operation, prosecutors stated that Wade could face additional charges if connected to the botched escape. According to the article, Wade, in addition to the car theft, has been charged with attempted murder, burglary and other unidentified crimes.

Wade could be charged for the car theft under either California Penal Code ("CPC") 487(d)(1), grand theft auto, or California Vehicle Code ("CVC") 10851, unlawful taking of a vehicle or "joyriding" depending on what he intended on doing with the car.

If prosecutors can prove that Wade intended on permanently depriving the owner of the car, i.e. intended to "steal" it, then he can be convicted under CPC Section 487(d)(1). If Wade only intended on temporarily deprive the owner of the car, he may only be convicted under CVC Section 10851. Generally, grand theft auto is charged as a felony and, as in this case, if the car's value is more than $200,000, the offender can face an additional and consecutive two-year sentence.

Further, if investigators are successful in discovering evidence linking Wade to the escape plot, he could be charged with an additional felony under California Penal Code Section 4530(b), which provides: Every prisoner who commits an escape or attempts an escape as described in subdivision (a), without force or violence, is punishable by imprisonment in the state prison for 16 months, or two or three years to be served consecutively. No additional probation report shall be required with respect to such offense.

Accordingly, under the cited statutory provision, Wade, if convicted of the escape offense, could receive an additional 16 months to three years in prison which could run consecutive to any sentence he receives on the underlying charges.

Both car theft and escape charges are very serious and can result in severe penalties. It goes without saying that anyone accused of either offense should contact an experienced criminal defense attorney immediately.

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Rights of the Accused in California Criminal Cases

August 14, 2012,

Under the American justice system, individuals who have been accused of a crime have the benefit of certain statutory and constitutional rights designed to protect their legal interests. Although these rights apply to all criminal prosecutions, they are sometimes limited by the type of crime the accused has been charged with.

When charged with a crime it is easy to get overwhelmed and feel like the outcome is predetermined. It is crucial to understand that all criminal defendants have various rights to ensure fairness.

Criminal offenses in California fall into two widely recognized categories: Misdemeanors and Felonies. The California Penal Code determines the type and level of all offenses. Regardless of which type of crime the accused is charged with, California recognizes certain rights to which they are entitled. The following is a brief overview of those rights.

Right To a Speedy Trial
Both the Sixth Amendment to the U.S. Constitution and Article One Section 15 of the California Constitution guarantee that every individual is entitled to a trial by jury within a certain period of time after their arrest. This "speedy trial right" has been codified in California Penal Code Section 1382. The length of that period is determined by the type of crime with which the accused is charged and whether or not they are held in custody pending trial.

The chart below shows how long after a person's arrest the State has to bring them to trial on the charges.

Misdemeanor - In Custody 30 Days
Misdemeanor - Not In Custody 45 Days
Any Felony 60 Days


The accused can agree to "waive time," allowing their trial to be set outside of the statutory time period. If an individual waives their speedy trial rights, a date is set for trial and the individual has a right to have their trial on or within ten days of the set date.

Right To A Jury Trial
Sixth Amendment and California Constitution Article 1, sections 16 and 24, also provide that every individual facing criminal prosecution for a misdemeanor or felony is entitled to a trial by a jury of his or her peers. California Constitution Article 1, section 16 states "In criminal actions in which a felony is charged, the jury shall consist of 12 persons. In criminal actions in which a misdemeanor is charged, the jury shall consist of 12 persons or a lesser number agreed on by the parties in open court."

The right to a trial by jury in California extends only to misdemeanor and felony charges, not traffic infractions. California Penal Code 19.6 states, "An infraction is not punishable by imprisonment. A person charged with an infraction shall not be entitled to a trial by jury."

Right to Legal Counsel
Likely the most important of any rights a defendant can take advantage of, the right to legal counsel is guaranteed to all individuals accused of a punishable by imprisonment. Brewer v. Williams, 430 U.S. 387, the United States Supreme Court held that the Sixth Amendment right to counsel "meant at least that a person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him, whether by formal charge, preliminary hearing, indictment, information, or arraignment."

Brewer goes on to state that once adversary proceedings have begun against a defendant, he has a right to legal representation when the government interrogates him. Many people think that, because they Sixth Amendment guarantees them the right to counsel, the government is required to provide them with an attorney free of charge, however, this is only true when the accused faces a "loss of liberty," jail or prison time.

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California Superior Court Judge Accused of Theft from the Elderly

August 12, 2012,

Criminal charges can be levied at anyone, including those working within the justice system itself. For example, earlier this month The Recorder reported on the arrest of Alameda County Superior Court Judge Paul Seeman on suspicion of theft from the elderly and eleven counts of perjury. According to the story, Seeman, as fiduciary for the estate of then-94 year old widow Anne Nutting of Berkeley, California, stole hundreds of thousands of dollars.

The allegations came to light in 2007 when Nutting hired California probate attorney Howard Abelson, to reorganize her estate and revoke the power of attorney she'd given to Seeman. According to Abelson, he became concerned with Seeman's attempts to execute agreements naming Seeman as the beneficiary of Nutting's estate and that Seeman had put some of Nutting's banking accounts under his own name. In 2010, Abelson reported his concerns to the Berkeley Police Department.

Kathleen Boyovich, a district attorney inspector in charge of the investigation, averred in a search warrant affidavit that Seeman "stood in a position of trust" with Nutting, and "having sole care, custody and control of Anne Nutting's financial accounts" embezzled "in excess of $265,000."

Financial Elder Abuse Charges In California
If the allegations against Seeman prove accurate, he will likely be charged under the California Penal Code Sections 368(d) and/or 368(e) with financial elder abuse. Financial elder abuse is defined as "financial" crime, such as theft, fraud, or embezzlement, involving property belonging to an elderly person, i.e. one who is over 65 years old, when the alleged offender was either the caregiver for the elder or knew or reasonably should have known that the individual was an elder.

Penalties For Financial Elder Abuse
The penalty for financial elder abuse is dependent on the value of property involved in the offense. If the value of the property is $950 or less, the offense is a misdemeanor punishable by up to one-year in jail sentence and a $1,000 fine. If the value of the property is more than $950, the offense is a felony punishable by up to four years in prison and a $10,000 fine.

Additional Consequences
In addition to criminal penalties Seeman will also face inquiries by the California Commission on Judicial Performance and the State Bar. As discussed in a previous article, each state has certain rules of ethics which judges, like Seeman, are bound to follow. California's judiciary is governed by the California Code of Judicial Ethics ("CCJE"). Under the CCJE, a judge will automatically be removed from his position without pay following a preliminary hearing in a criminal case and persists throughout the criminal proceedings. If the judge is found guilty of the charges, he or she will be removed from the bench permanently.

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The Indirect Effects of a California DUI Conviction

August 5, 2012,

When thinking about criminal convictions the immediate penalties come to mind, serving time in jail or thousands of dollars in fines. Avoiding those consequences are important. However, sometimes even more important is avoiding the collateral or indirect consequences of these criminal convictions. This may be particularly true for young defendants who may face problems stemming from the conviction for the rest of their life.

For example, take the case of driving under the influence.

A DUI conviction in California can carry harsh penalties, including jail time, fines, and a driver's license suspension. Although most people are aware of these obvious consequences, there are numerous, and often unconsidered, ways in which a DUI can affect your life indirectly.

These "hidden" penalties are often more severe than the known consequences and can have a significant impact on how a DUI case is defended. A knowledgeable DUI attorney will be able to recognize and avoid or minimize the effects of such consequences.

The following are common ways in which a DUI can impact your life that you may be aware of:

1. Commercial Drivers - Anyone with a commercial driver's license convicted of DUI will lose their CDL for a minimum of one year and a second conviction will result in a lifetime suspension.

2. Licensed Professionals - Doctors, lawyers, cosmetologists, and daycare workers, to name a few, are required be licensed to practice in their field. These professionals may face sanctions from their respective licensing board if they are convicted of DUI, including fines, counseling, probation, license suspension or revocation.

3. Car Insurance - Some auto insurers will drop you from their coverage if you receive a DUI conviction. Even if your insurer doesn't drop you, at the very least you can expect a significant increase in your monthly premiums.

4. Pilots - Any pilot with an FAA Airman's Certificate is required to report a conviction for DUI the FAA, which could result in suspension or revocation of their license.

5. Travel Restrictions - In 2011, Canada passed the Immigration and Refugee Protection Act, allowing officials to prevent anyone convicted of DUI from entering the country.

6. Child Custody/Adoption - A DUI conviction can be especially damaging in the event you are involved in a child custody dispute or attempting to adopt a child. Courts and adoption agencies consider a DUI conviction when determining what is in a child's best interests, making it more difficult to win custody or obtain an adoption.

7. Enhanceable Offense - In California, a DUI is considered an "enhanceable offense". This means that a misdemeanor DUI can be charged as a felony if you have three or more previous DUI convictions within the last ten years. A conviction for felony DUI can carry the following penalties: sixteen months to four years in prison, $390-$1,000 fine with penalties assessed, habitual traffic offender status, and a four year driver's license suspension.

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University Of California, Irvine Professor Charged With Arson Faces More Than Twelve Years In Prison

August 3, 2012,

Tuesday, CNN reported that University of California professor Rainer Klaus Reinscheid, 48, was charged with two felony counts of arson of another's property, two felony counts of arson of a structure, one felony count of arson of an inhabited residence, one felony count of attempted arson, and one misdemeanor count of resisting or obstructing an officer.

Reinscheid stands accused of setting fires at University High School in Irvine, California, the school that Reinscheid's teenage son attended before he committed suicide earlier this year. According to the report, Reinscheid is alleged to have committed five arsons and one attempted arson between July 4 and July 24 of this year "by lighting various objects on fire including newspapers, fireplace logs, brush and vegetation, a book, and a plastic porch chair."

The fires were set on University High School campus, in the park where Reinscheid's son killed himself, and at a school administrator's home.

What Is Arson?

California Penal Code Sections 451 and 452, prohibit a person from "willfully and maliciously" or, in some cases, "recklessly...setting a fire to someone else's property." The penalties for arson can be severe and generally depend on the type of property targeted by the offender, and whether or not the offense resulted in injury.

Although usually only applicable to fires set on another's property, arson laws may apply if the offender sets fire to his or her own property for a fraudulent purpose, such as to collect on an insurance policy, or if a fire set by the offender on his own property causes injury to another person or damages to another's home, property, or land.

What Are The Penalties For Arson?

The penalties for arson can vary depending on a variety of factors, however, the following illustrate the maximum penalties that can be imposed for arson offenses.

A "reckless burning" misdemeanor violation of California Penal Code Section 452 carries a maximum penalty of one year in a county jail and a fine of $1,000.

A felony arson or "reckless burning" violation of California Penal Code Section 451 or 452 carries a maximum penalty of one and a half to nine years in a state prison and a $50,000 fine.

A felony aggravated arson violation of California Penal Code Section 451 carries a consecutive sentence of one to five years in addition to any sentence imposed for the arson. Arson is considered "aggravated" under certain circumstances, such as the offender has a prior felony conviction for arson, the fire cause great bodily injury to a responding official, the fire affected multiple structures, or the offender used some means of accelerating or delaying the ignition of the fire.

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California Gun Laws Would Not Allow Lawful Purchase Of Weapon Used In Colorado Theater Shooting.

August 2, 2012,

Following the shooting rampage of 24-year-old James Holmes in Aurora, Colorado on Friday that left twelve dead and over fifty wounded, there has been an outcry on both sides of a heated gun control debate that has raged on for decades. Last week, Mercury News reported that in California, widely considered to have some of the nation's toughest gun control laws, it would be impossible for an individual to lawfully purchase the AR-15 assault rifle used by Holmes in the devastating shooting.

Adopted in 1989, the Roberti-Roos Assault Weapons Control Act ("AWCA"), codified at California Penal Code Title 2, Chapter 2.3, Section 12275, et seq. placed, stringent restrictions on the purchase, sale, and possession of semi-automatic firearms in the state. At the time of its passage, the AWCA banned over fifty specific brands and models of firearms, mostly rifles and some pistols and shotguns.

In addressing the need for stricter control of assault weapons, the AWCA states:

The Legislature hereby finds and declares that the proliferation and use of assault weapons poses a threat to the health, safety, and security of all citizens of this state. The Legislature has restricted the assault weapons specified in Section 12276 based upon finding that each firearm has such a high rate of fire and capacity for firepower that its function as a legitimate sports or recreational firearm is substantially outweighed by the danger that it can be used to kill and injure human beings. It is the intent of the Legislature in enacting this chapter to place restrictions on the use of assault weapons and to establish a registration and permit procedure for their lawful sale and possession. It is not, however, the intent of the Legislature by this chapter to place restrictions on the use of those weapons which are primarily designed and intended for hunting, target practice, or other legitimate sports or recreational activities.
In addition to banning specific brands and models, the AWCA prohibited firearms from possessing certain characteristics that would categorize the weapon an assault weapon and therefore illegal. Some of those characteristics were rifles with threaded barrels capable of accepting a flash suppressor or silencer, rifles with flash suppressors, rifles with a fixed magazine with the capacity to accept more than 10 rounds, rifles with an overall length of less than 30 inches, and rifles that had both a forward pistol grip and a folding or telescopic stock.

According to the story, the weapons used by Holmes, an AR-15 assault rifle, a Remington 12-gauge shotgun and two Glock pistols, were legally purchased over the months preceding the attack at two national gun chains in Colorado.

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