Orange County Criminal Attorneys Blog

In California, there are certain types of criminal offenses, if you are eligible, which will allow you to avoid getting any conviction at all. It is known as Deferred Entry of Judgment (sometimes referred to as DEJ). For adults, DEJ is used primarily for certain drug offenses. However, more recently the Orange County District Attorney's office has been allowing the use of DEJ in settling other relatively minor (non-violent) criminal offenses, such as Petty Theft and Driving on a Suspended or Revoked License. With DEJ, the defendant pleads guilty, but the court does not enter the judgment, so the conviction is never finalized. The court will impose specified sanctions (such as mandatory attendance at offender rehabilitation programs, fines and/or penalties) to be completed within a certain period of time. In exchange, if all requirements are satisfactorily performed and no new offenses have caused the court to revoke DEJ, the case will be dismissed, without any conviction ever having been entered.

However, unlike with diversion, with DEJ you have already pled guilty, so if you fail to successfully complete the program, you cannot then plead not guilty and go to trial. For this reason, it's important that you and your attorney discuss all possibilities and decide on a strategy that will bring you the outcome most likely to work for you.

Thereafter, the defendant may lawfully indicate in response to questions concerning his or her prior criminal record that he or she was not convicted of a criminal offense The only exception to this is on subsequent peace officer applications, in which case the defendant may not omit reference to the arrest and judgment.

Below are some of the Eligibility and Qualifications for Deferred Entry of Judgment. This list is not exhaustive and does not guarantee that your individual case is eligible for DEJ.

1. You must have no prior convictions involving controlled substances (just for prior drug charges).
2. The offense you are charged with cannot involve a crime of violence.
3. There must be no evidence that you committed any drug offense, such as sale or possession for sale, other than one of the listed offenses (just for prior drug charges).
4. You cannot have ever in the past failed to successfully complete probation or parole.
5. You cannot have previously done DEJ within the last five years.
6. You cannot have any prior felony convictions within the last five years.

If you are facing possible criminal charges or have already been charged and would like to see if your case is eligible for Deferred Entry of Judgment, contact our offices for a free consultation of your case.

There are two different types of Warrants issued through the Criminal Justice System. Law enforcement will generally issue an Arrest Warrant, which is a written order commanding (authorizing) a law enforcement agency to arrest and/or detain an individual, or allows the search and seizure of one's property. A Bench Warrant is an order by the court "from the bench" issued by a Judge to arrest a person and bring them before the court.

A person may have a warrant out for his or her arrest for a number of reasons such as a complaint being filed against the person by a prosecuting agency, a failure to appear in court when ordered to, a probation violation, a failure to obey court order(s), and others.

Most warrants are issued for Failures to Appear (FTA) in court and Probation Violations. Many individuals that have been convicted of a criminal offense and then fail to complete the terms of their sentence (probation) can have a warrant issued against them. Also, we see individuals that were cited for a crime (yes, even a traffic infraction) that fail to appear on their scheduled court date for a myriad of reasons, such as fear of what will happen in court, they forget the date or lose their citation or they are simply trying to avoid dealing with the offense.

If you have failed to meet any of the terms of your probation, one thing that our office may be able to assist you with is a Sentence Modification, if applicable in your particular case, once the Warrant has been recalled. If your case is a misdemeanor, you may not need to be present when your warrant is recalled. If your case is a felony, you will almost always need to be present when your warrant is recalled.

Once a warrant is issued by the court, it is reported to the Department of Motor Vehicles (DMV). Many clients contact us after they have attempted to renew their driver's license, registration or other dealings with the DMV, only to be informed that they have a warrant issued for their arrest. In the state of California, driving is a "privilege" and not a" right", so if you violate a law, that privilege can be suspended. The longer you wait to resolve an outstanding warrant, the more complicated the process to recall it can be, especially if you are out of state or convicted of a felony. We may able to keep you from going to jail by appearing with you, as often times a judge will order a defendant with a felony warrant to be remanded to jail immediately.

You can hire the Law Office of Lauren K. Johnson to represent you and recall your warrant. By recalling your warrant, the Law Office of Lauren K. Johnson is asking the court to cancel the order for your arrest. Then we can proceed in resolving your underlying case with the most favorable outcome possible. Contact our office for a free confidential consultation.

The Governor of California has a put forth a trailer bill in which one of the items to be amended are the laws governing the disposition of Marijuana Arrest and Convictions records. Specifically, section 11361.5 of the Health and Safety Code is targeted. Currently HS 11361.5 mandates that the courts destroy the arrest records or convictions as set forth under these conditions:

HS 11361.5 (a) Records of any court of this state, any public or private agency that provides services upon referral under Section 1000.2 of the Penal Code, or of any state agency pertaining to the arrest or conviction of any person for a violation of subdivision (b), (c), (d), or (e) of Section 11357 or subdivision (b) of Section 11360, shall not be kept beyond two years from the date of the conviction, or from the date of the arrest if there was no conviction, except with respect to a violation of subdivision (e) of Section 11357 the records shall be retained until the offender attains the age of 18 years at which time the records shall be destroyed as provided in this section. Any court or agency having custody of the records shall provide for the timely destruction of the records in accordance with subdivision (c). The requirements of this subdivision do not apply to records of any conviction occurring prior to January 1, 1976, or records of any arrest not followed by a conviction occurring prior to that date. This is how it currently works.

What would the statue look like if it gets amended?

What is being amended is that now the person that was either arrested or convicted of subdivision (b) must now apply for the destruction of his/her own records without notification or by being reminded by the court that they are eligible to do so. This is really a cost cutting issue (defraying the costs) involved in destroying these records

If you were arrested and not convicted or were convicted of a Marijuana charge under HS 11357 or subdivision (b) of HS 11360, you must wait the statutory two year period from the date of the arrest if there was no conviction, or if you were convicted, you may apply to the Department of Justice for the destruction of your records pertaining to the arrest or conviction, again only if two or more years have elapsed. You will have to pay a fee ($37.50 is currently proposed). In addition, the Department may request, but not require a self-administered fingerprint upon application, which in many instances will cost you another $60 to $80 for a live scan fingerprint submission.

Once all of the paperwork has been properly submitted, fingerprints and identity have been verified, the Department of Justice will destroy any records of your arrest or conviction. If for any reason the applicant fails or refuses to submit fingerprints to the department within a reasonable time, or if an applicant requests a refund of the fee, the department will mail a refund, and notify the applicant that election to abandon the application may result in forfeiture of a specified amount that is a portion of the fee (not to exceed $10) and refund the rest.

The implications are vast. First, most people that are arrested and never convicted do not exercise their right to have their arrest record destroyed either knowingly or having never been informed of this right. Second, there is no indication that the Department of Justice or the local courts are going be informing individuals whether formally or informally that they can have their arrest or conviction records destroyed after the statutory two year period.

The Law Office of Lauren K Johnson represents many clients that have been arrested for various marijuana related crimes. If you are currently facing a marijuana related charge, contact our office today for a confidential consultation about your case.

In 2009 Alonzo Jay King Jr. was arrested for assault in the state of Maryland. Pursuant to Maryland's DNA Collection Act (Maryland law that allows officials-without a warrant- to take the DNA of someone who has been arrested but not convicted of a serious crime). The federal government and 28 other states have similar laws, including California (California Penal Code §296).

Subsequent to the arrest and DNA collection, officials were able to eventually produce a match through the CODIS DNA database (CODIS is a computer software program that operates local, State, and national databases of DNA profiles from convicted offenders, unsolved crime scene evidence, and missing persons) with a previously unresolved rape case from 2003. At trial King argued that the DNA draw violated his constitutional rights, but he lost and was sentenced to life in prison for the 2003 case. In April, an appeals court ruled in favor of King. The Court said that King's rights to be free from unreasonable warrantless searches had been violated.

In Maryland v. King during oral arguments, Kannon K. Shanmugamer, King's lawyer argued that the taking of DNA is distinguishable from the taking of fingerprints because DNA contains far more information, the search is physically intrusive, and law enforcement's primary purpose to take the DNA is not for identification purposes. "Maryland searched my client without a warrant in order to investigate crimes for which there is no suspicion," Shanmugam argued "It is settled law that warrantless, suspicionless searches are presumptively unconstitutional."

During animated arguments the Justices seemed divided on some key issues. One of the central questions in front of the court as Justice Alito eloquently stated is:"So this is what is at stake: Lots of murders, lots of rapes that can be solved using this new technology that involves a very minimal intrusion on personal privacy. But why isn't this the fingerprinting of the 21st Century?"

Justice Elena Kagan posed critical questions regarding the law. She asked the Chief Deputy Attorney General of Maryland, that if the purpose of the law is not so much for identification, but to solve cold cases, "then it's just like searching your house, to see what's in your house that could help solve cold cases." A search of the home- unless there is an emergency- requires a warrant. "Just because you've been arrested, doesn't mean that you lose the privacy expectations and things you have that aren't related to the offense that you've been arrested for," Kagan said.

The United States government favors the law, and argues that arrestees lose some of their privacy by virtue of the fact they've been arrested, "Arrestees are in a unique category, they are on the gateway into the criminal justice system. They are no longer like free citizens who are wandering around on the streets retaining full impact Fourth Amendment rights." Deputy Solicitor General Michael R. Dreeben noted that when someone is taken into jail he is subject to a visual strip search. If he's admitted into the prison population a TB test and a thorough medical screen is done.

Dreeban went on further to say that the DNA collection is not any different than submitting to fingerprints, it is primarily for identification purposes. The fingerprint comparison brought up another concern of the Justices. A fingerprint analysis is almost immediate while DNA can take days or sometimes weeks to analyze depending upon the available technology and back log. How can something that can take days to acquire have a primary purpose for identification.

He said that soon this distinction won't matter. "The future is very close to where there will be "rapid DNA analyzers" that are devices that can analyze and produce the identification material in the DNA within 90 minutes."

In the state of California if you were arrested for a Felony and submitted a DNA sample pursuant to Penal Code 296 and charges against you were never filed or were later dismissed, you can petition the court to have your DNA sample expunged pursuant to Penal Code §299.

The Law Office of Lauren K Johnson represents many clients that are arrested for various felonies and were subjected to providing a DNA sample at the time of their arrest. Contact our office today for help with your case.

On Tuesday, January 22, 2013 the U.S. Court of Appeals for the Washington D.C. Circuit ruled that marijuana will remain illegal for doctors to prescribe as medicine. The court agreed with lawyers from the U.S. Drug Enforcement Agency (DEA) who argued that there are no "adequate and well-controlled" studies that document any medical benefits of marijuana use.

Currently marijuana is on the same list of addictive and otherwise harmful narcotics such as peyote, LSD and Ecstasy (although methamphetamine and heroin are not on the same list). The Coalition for Rescheduling Cannabis, which includes the ASA (Americans for Safe Access, the country's leading medical marijuana advocacy organization) have been trying for years now to remove marijuana from the government's list of addictive and harmful narcotics.

Joe Eford, the lead attorney for Americans for Safe Access argued that the court's findings, "To deny that sufficient evidence is lacking on the medical efficacy of marijuana is to ignore a mountain of well-documented studies that conclude otherwise." The Coalition for Rescheduling Cannabis and the ASA filed the original petition to have marijuana reclassified nine years. It took the DEA nine years to finally respond (see article:
http://blogs.ocweekly.com/navelgazing/2011/07/obama_says_marijuana_is_not_me.php) at which point they rejected the petition.

The ASA plans to appeal the ruling to the U.S. Supreme Court, but is also calling on both Congress and the President to unilaterally end the war on pot. Now that states like Colorado and Washington State have passed laws legalizing the recreational use of pot, Elford argued. "It's time for President Obama to change his harmful policy with regard to medical marijuana and treat this as a public health issue, something entirely within the capability and authority of the executive office."

Continue reading "U.S. Court Of Appeal Calls Marijuana Schedule One Narcotic" »

The City Council of Lake Forest voted 3 to 2 to approve the repeal of the sex offender ordinance they adopted unanimously about a year ago. A registrant sued the city in federal district court, who is challenging the ordinance because it violates both the state and federal constitutions. At least one additional court challenge from two city residents had been promised if the city did not repeal its ordinance.
The Orange County Board of Supervisors approved the ordinance in April 2011 (ORANGE COUNTY CODIFIED ORDINANCE 3-18-3 (PROHIBITED OFFENDER ENTERING A COUNTY PARK) which significantly restricts the movements of registered sex offenders, banning them from entering some beaches, parks and harbor areas. Under the rules, sex offenders who visit any of dozens of public spaces without prior approval from county officials face up to six months in jail or a $500 fine. These included areas such as Newport Harbor, Irvine Regional Park and the Orange County Zoo.

But critics such as the CA RSOL (California Reform Sex Offender Laws) immediately expressed skepticism about the law, saying it would be difficult to enforce and appeared politically motivated. Franklin Zimring, a UC Berkeley law professor, said the law was overly broad and misdirected, because more than 9 out of 10 sex crimes targeting children are committed not by strangers in a park, but by family members or acquaintances.

The City of Lake Forest is just one of the 16 cities in Orange County that have adopted ordinances that prohibit registrants from entering public parks and beaches. One of those cities - Santa Ana - also prohibits registrants from entering the public library. And almost half of those cities are facing lawsuits that are being challenged in the courts.
The Orange County District Attorney's office has vowed to continue enforcing the law even as many cities that adopted the ordinance may now follow the lead of Lake Forest. Sheriff Sandra Hutchens has asked her department to stop enforcing the law.
The conviction of Hugo Godinez, a registered sex offender who was ordered to serve 100 days in jail for attending a Cinco de Mayo party at Mile Square Park, a county facility, in Fountain Valley in 2011is one example of how registrants are being charged under this ordinance (See District Attorney press release).


Orange County is the only county in the state to ban all registered sex offenders -- even those who haven't been convicted of a crime against children -- from going to a county beach or spending time in a county park. And although registered sex offenders can apply for an exemption for work or a family gathering, few have been approved.

Continue reading "CITY OF LAKE FOREST REPEALS SEX OFFENDER ORDINANCE" »

As the battle over the legality of medical marijuana rages on in the state of California, it remains clear that, while legal for medicinal purposes, there are limits to the extent to which medicinal marijuana users can avail themselves of its benefits. Nothing illustrates this fact better than the California First District Court of Appeals recent decision in People v. Leal, where the Court determined that trial judges can prevent medical marijuana users from using or possessing the drug as part of probation imposed pursuant to a criminal conviction.

The Court's 3-0 decision, upheld the sentence of Contra Costa County Superior Court Judge Leslie Landau, prohibiting criminal defendant Daniel Leal from using or possessing medical marijuana during a three-year term of probation. In 2009, Leal was convicted of possession of marijuana for sale following a jury trial and was sentenced to serve three years on probation.

As part of probation, Judge Landau ordered that Leal was not to "use, possess, or have in your custody or control any illegal drugs***and that includes marijuana," commenting that she found that Leal was "much more likely to engage in future criminal activity selling marijuana again if he is in possession of it for medical use***so he's going to have to find some other way of medicating himself other than using marijuana." Leal appealed the sentence, arguing that that the trial court's condition that he not use or possess marijuana violated his right to use marijuana under California's Compassionate Use Act.

In holding that Leal was not entitled to use medicinal marijuana, Justice Anthony Kline opined "Leal used Compassionate Use Act authorization as a front for illegal sales of marijuana, sales partly carried out with a loaded semiautomatic handgun in a public park occupied by mothers and their young children."

Kline further remarked that judges must "balance the need to protect the public with California residents' right to the use of medical marijuana" and that there may be situations where a criminal defendant's use of marijuana could be justified by a compelling need for its use as medical treatment.

Commenting on the Court's decision, Leal's appellate attorney maintained that, although consistent with California appellate court rulings on this issue, in issuing a detailed 22-page opinion, the First District may have intended "to send a very clear message that if you end up being convicted of possessing marijuana for sale, don't expect to be able to continue using medical marijuana."

On a previous occasion, this blog has addressed the complications that have accompanied California's legalization of marijuana for medicinal use. Leal's case exemplifies another of those complications and illustrates the need for criminal defendants to have experienced legal counsel prepared to deal with such issues.

Continue reading "California Court of Appeal Rules Medical Marijuana Off-Limits For Offender" »

The Los Angeles Times reported that fire safety expert Dale Feb is expected to testify at a preliminary hearing in the criminal case against forty eight year old Gerhard Becker, a German national and architect, who has been charged with one count of involuntary manslaughter in the death of forty-year veteran of the Los Angeles Fire Department, Glenn Allen. Becker stands accused of negligently installing fireplaces designed for outdoor use inside his Hollywood Hills mansion that caused a massive fire at the residence.

Over eighty LAFD firefighters responded to the blaze on the night of February 16, 2011, with nineteen becoming trapped as it spread throughout the home. As the fire progressed, the ceiling collapsed, dumping hundreds of pounds of plaster and lumber on Allen. Other firefighters immediately came to Allen's aid, using chainsaws to dig him out, however, he was not breathing by the time he was rescued. Allen was resuscitated at the scene and rushed to a nearby hospital, but died two days later.

Fire inspectors discovered that Becker had installed four outdoor fireplaces inside his home after its final inspection that allegedly lacked required firebreaks to stop flames from spreading out and were constructed with combustible materials. According to a search warrant drafted by Los Angeles Police Detective Gregory Stearns, "If these fireplaces were present at final inspection of the residence, the inspection would not have been approved. As constructed and installed, they constitute a present, extreme, immediate and imminent hazard."

In California, involuntary manslaughter is defined by Penal Code Section 192(b) as an unlawful killing of a human being "in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection."

An "unlawful act" is either a misdemeanor or an infraction, and is not necessarily something that is inherently dangerous. An act performed "without due caution and circumspection" is essentially the same thing as criminal negligence, i.e. an act which is "aggravated, reckless and flagrant and which is such a departure from what would be the conduct of an ordinary prudent, careful person under the same circumstances as to be in disregard for human life, or an indifference to the consequences of such an act." Involuntary manslaughter carries a maximum penalty of four years in prison and a $10,000 fine.

As this case shows, while rare, these criminal charges can be filed even in unique cases like this one. However, those charged often have very strong legal defenses--merely making a mistake is not always enough to be convicted of a crime.

Continue reading "Los Angeles Involuntary Manslaughter Case Involves Death of Firefighter" »

Back in October, I blogged about Stanford Law School lecturer, Michael Romano, and his efforts to change California's controversial three strikes law. As discussed in the previous post, three strikes was passed in 1994 and is a criminal sentencing scheme that imposes substantial additional prison time to sentences of certain repeat offenders.

Under the three strikes scheme, if a person is convicted of any felony, and has two or more prior convictions qualifying as "strike" offenses, the judge must impose a sentence of at least 25-years-to-life. In certain circumstances, the law also applies to "second strikers" and requires a judge to sentence a person to twice the stated prison term on the current charge if they have a prior strike.

Yesterday, California voters passed Proposition 36, a measure drafted by Romano, Stanford law professor David Mills, and NAACP Legal Defense and Educational Fund attorney Jeffrey Robinson, eliminating the 25-to-life sentence in cases where the defendant's recent offenses are classified as "non-serious" or "nonviolent" but leaving life sentences in place for offenders convicted of an "extremely violent" offense such as rape or murder. Prop 36 also allows individuals currently serving life sentences under the three strikes law to apply to be resentenced if their third strike was a non-serious or nonviolent crime.

Opponents of Prop 36 argue that Three Strikes served a valid purpose, to keep violent repeat offenders off the streets. In a position paper opposing Prop 36, the California District Attorneys Association opined that "The current Three Strikes law has directly and significantly acted to reduce crime in California. Three Strikes law is a valuable, essential, and proven tool in the fight against crime."

However, those of us that supported Prop 36 know that the initiative will save California at least $100 million each year as a result of fewer parole hearings, shortening of lengthy prison terms for current inmates, and a decrease in California's overcrowded prison population.

Perhaps most important to the Prop 36 movement is that it will prevent offenders from receiving unfair prison sentences for minor crimes.

Los Angeles County District Attorney Steve Cooley, Santa Clara County District Attorney Jeff Rosen, and San Francisco District Attorney George Gascn, were among the supporters of Prop 36. According to Cooley, "The state should not allow the misallocation of limited penal resources by having life prison sentences for those who do not pose a serious criminal threat to society. The punishment should fit the crime."

Continue reading "California Residents Pass Proposition 36 Modifying "Three Strike" Sentencing Scheme" »

Dec10 Press Release Law Office of Lauren K Johnson CA Pot Case.pdf

California Appeals Court Rules In Favor Of Parent Who Uses Medical Marijuana, Reversing Order For DCFS Intervention

Defense Attorney Lauren K. Johnson Prevails in State Appellate Court Case Setting Limits on Laws Separating Children From Their Parents That Use Marijuana for Medical Reasons

Irvine, Calif., December 11, 2012 -- Lauren K. Johnson, an attorney with law offices in Irvine, California today announced a hard-fought appeals court victory regarding parenting and medical marijuana use. In the case of Drake M. (case # B236769), Division Three of the Second Appellate District, California Court of Appeal ruled on December 5, 2012 that while parents who abuse drugs can lose custody of their children, a parent who uses marijuana for medical reasons, with a doctor's approval, isn't necessarily a drug abuser.

Being hailed as precedent-setting, the Appellate Court's ruling further clarifies child welfare law as applied in such cases, and represents a very significant victory for both the appellant and his legal counsel.

"The ruling illustrates a growing recognition of the legitimate use of medical marijuana in this state and other states," says Johnson. "We want kids to be safe, but we also want parents to be able to use legally prescribed medications when children appear not to be at demonstrated risk of harm."

In overturning a Los Angeles Superior Court ruling against the plaintiff, Los Angeles County Department of Children and Family Services, the Appellate Court said the "mere usage of drugs," including marijuana, is not the same as substance abuse that can affect child custody, as alleged in this case by the lower court. The court held that substance must either be diagnosed by a doctor or show up in a person's behavior, such as absences or poor performance at work or at school, driving under the influence, or recurrent social or interpersonal problems. The Appellate Court emphasized that none of that happened in this case.

The father had testified that he uses medical marijuana for arthritis about four times a week, and does not use it in front of his child or care for the child while under the influence. He has been employed for many years and is capable of supporting his child, the court found.

Continue reading "California Appeals Court Rules In Favor Of Parent Who Uses Medical Marijuana, Reversing Order For DCFS Intervention" »

The Recorder published a story regarding California's Proposition 34, also referred to as the "Death Penalty Initiative Statute" that appeared on the November 6th ballot. Prop 34 would have repealed the death penalty as the maximum punishment for murder, replacing it with life imprisonment without parole. Prop 34 would have also required defendants found guilty of murder to work while in prison and apply their earnings towards victim restitution.

Current State of Executions in CA
California has not carried out any executions since 2006, when U.S. District Judge Jeremy Fogel determined that there were significant flaws in the state's execution process. Judge Fogel made his decision after death row inmate Michael A. Morales argued that the officials tasked with carrying out executions at San Quentin prison were not properly trained and the poor conditions of the death chamber amounted to cruel and unusual punishment. Following several hearings and a personal inspection of San Quentin's execution facility, Judge Fogel ruled in Morales v. Tilton, that reform of the execution procedures was needed, writing that California's procedure for "lethal injection is broken, but it can be fixed."

Reacting to Judge Fogel's opinion, the California Department of Corrections and Rehabilitation overhauled its execution procedures and updated its facilities. However, various challenges in state and federal courts have blocked California from carrying out any executions during the last six years. In fact, in 2010, California attempted to execute Albert Greenwood Brown with a single dose of sodium thiopental, but the Ninth Circuit Court of Appeals stopped the execution based on California's failure to adopt a single-drug injection procedure.

Surge Coming?
Some individuals foresee a situation mirroring that which has occurred in Arizona in recent years. For almost ten years, Arizona didn't carry out any executions due to disputes over death penalty procedures. However, since resuming executions in 2010, Arizona has executed 10 men in two years, more than any state but Texas. When asked whether, in the wake of a rejection by voters of Prop 34, could California see a dramatic increase in the number of executions, Berkeley attorney Cliff Gardner stated, "It could happen. I think it's definitely plausible. Has California ever seen anything like it? Not in our adult lifetimes. It may shock some people and may please others."

According to the California Department of Corrections and Rehabilitation, California currently has 726 individuals on death row. The Recorder reports that, of that group, fourteen have exhausted their habeas corpus claims and could be executed once the legal challenges to California's current execution procedures have been resolved.

Continue reading "California Voters Voted Down Death Penalty Initiative Proposition 34" »

The LA Times reported that Los Angeles County health officials have issued yet another warning regarding the dangers of using recently popularized designer drug, bath salts. The warning follows a newly-published study recording a drastic increase in the amount of calls poison control centers related to the drug.

According to the study, over the last few years, U.S. poison control centers have experienced a pronounced increase in calls related to bath salts, increasing from none in 2009 to 6,138 in 2011. Bath salts, sometimes referred to as white lightning, white rush, or Hurricane Charlie, have been linked to a number unusual incidents and arrests, likely due to the drug's tendency to cause hallucinations, paranoia and uncontrollable violent behavior.

In July, President Obama signed into law the Food and Drug Administration Safety and Innovation Act, which included an amendment designating two chemicals commonly found in bath salts, Mephedrone and MDPV, as FDA-controlled substances. The law also banned the sale of bath salts in smoke shops and gas stations, but the drug remains available through online sources.

California recently enacted a law making it a misdemeanor offense to sell or distribute any "synthetic stimulant derivative" under Health and Safety Code section 11375.5, which provides: Every person who sells, dispenses, distributes, furnishes, administers, or gives, or offers to sell, dispense, distribute, furnish, administer, or give, any synthetic stimulant compound specified in subdivision (b), or any synthetic stimulant derivative, to any person, or who possesses that compound or derivative for sale, is guilty of a misdemeanor punishable by imprisonment in a county jail not exceeding six months, or by a fine not exceeding one thousand dollars ($1,000), or by both that fine and imprisonment.

Despite the ban on their sale, possession of bath salts in California is not yet a crime. Although not itself criminal, the use of bath salts leading to the commission of violent crimes is well documented. Indeed, it appears that, in many such situations, individuals with no prior criminal tendencies or propensity towards violence have committed serious felonies while under the influence of the drug.

Another problem with the recent uptick in the use of bath salts is that, because they are often manufactured by "street chemists," they are unregulated and not subject to the safety measures of legitimate drug manufacturers. This means that there is no way to determine what chemicals and how much of any given chemical a given amount of bath salts contains, putting users at increased risk of poisoning and overdose.

Continue reading "California Health and Safety Code Section 11375.5 Make Sale of Bath Salts Misdemeanor" »

The Los Angeles Times published a story regarding the recent struggles of California's recycling program due to widespread fraud. According to the story, individuals are taking advantage of the state recycling program by redeeming aluminum cans and glass bottles from other states, usually neighboring Nevada or Arizona, at California recycling centers. California government officials have estimated the fraud to cost the state somewhere between $40 and $200 million a year.

Under its recycling law, California consumers are charged a deposit on some beverage containers sold in the state. Any person who brings a recyclable container to one of the state's 2,300 privately run recycling centers will be paid anywhere from 5 to 10 cents depending on the type of the container. Further, only containers sold in the state are eligible for recycling. However, because the state reimburses the private recycling centers based the amount of recyclables taken in by weight, the centers have little incentive to curb any fraud.

The fraud being perpetrated on California's recycling system is stark when looked at by the numbers. According to estimates, 8.3 billion recyclable cans were redeemed in California in 2011, a year when only 8.5 billon cans were sold. This is a return rate of almost 98%--a highly unlikely rate of success. The rate of return for plastic containers was 104%, which is obviously an impossibility.

The California Department of Justice has stated that approximately 10 criminal cases have been filed this year against fraud rings bringing in recyclables from outside California. California's Beverage Container Recycling Act prohibits "redemption of beverage container material imported from out of state, previously redeemed containers [and] rejected containers." It also states "any person participating in conduct intended to defraud the state's beverage container recycling program shall be held accountable for that conduct."

Under section 14591(b)(1)(D) of the California Public Resources Code, any person who "with intent to defraud***[r]edeems out-of-state containers, rejected containers, line breakage, or containers that have already been redeemed" or "[b]rings out-of-state containers, rejected containers, or line breakage to the marketplace for redemption" is guilty of fraud. Further, if the money obtained from the fraud exceeds $950, it is punishable by imprisonment in the county jail for up to a year or up to three years in a state prison. If the money obtained from the fraud is equal to or less than $950, it is punishable by imprisonment in the county jail for up to six months.

Continue reading "California White Collar Fraud Cases Connected to Recycling" »

The Associated Press reported this week that the murder case of One Goh was suspended on Monday after Goh's attorney questioned his mental competency. Goh has been charged with seven counts of murder and three counts of attempted murder as a result of an April 2nd. He pleaded not guilty.

The shooting spree occurred in Oakland at Oikos University. The University is a small Christian college founded to help Korean immigrants adjust to life in America. Goh is a former student who prosecutors believe planned the attack over a tuition dispute with the school. Goh fled the campus after the shooting in one of the victim's cars. He was arrested in Alameda shortly after fleeing but not before he confessed to a supermarket security guard that he had just shot several people. Due to the circumstances surrounding the shooting, Goh would be eligible for the death penalty if convicted.

The hearing on Monday was supposed to be a routine preliminary hearing, but the assistant public defender representing Goh told the Alameda County Superior Court judge that Goh refused to speak to him and that he wanted a mental evaluation to determine if Goh is competent to stand trial.

What Does it Mean to be Incompetent to Stand Trial?

The California Penal Code addresses this question in CAL. PEN. CODE § 1367 and CAL. PEN. CODE § 1368. The statute defines someone who is mentally incompetent to stand trial as someone who as a "result of mental disorder or developmental disability" is "unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner." The defendant must understand that he or she committed a crime and that the court proceedings are in response to his or her actions. If a defendant is charged with a crime, but he cannot explain what he did a trial then he might be deemed incompetent. The second part of that definition is also important because everyone has the right to counsel. A paranoid defendant on trial for a criminal offense might not be competent to stand trial if due to his or her paranoia he or she does not trust the attorney and therefore refuses to assist with the defense. Based on the reports, that is the situation the court is faced with concerning One Goh.

The developmental disability might be easier to prove since that would be something previously detected and noted. Examples of this would include autism, mental retardation or epilepsy.

How is Incompetency Determined?

Penal Code 1368 describes the process through which mental competency is determined. The judge asks the defense attorney if he or she thinks the defendant is incompetent. If the attorney says yes, then the judge is required to suspend the proceedings and order a competency hearing. Even if the attorney says no, the judge may still suspend the proceedings and order a hearing if the judge thinks the defendant is incompetent despite the attorneys answer to the contrary.

The defense attorney must present "substantial evidence" that the defendant is incompetent. Basically this means that the evidence is strong enough to raise a reasonable doubt in the judge's mind of the defendant's competence. If this evidence is presented and accepted, the judge will order a competency hearing which will be before either a judge or jury.

What Happens Next?

If the defendant is found competent, then the trial begins again. If the defendant is found incompetent, then the defendant is ordered to undergo psychiatric treatment.

A defendant may regain competence after undergoing treatment. If this occurs, the criminal trial picks up where it left off.

Continue reading "Mental Competency At Issue In California College Shooting Case" »

This month the Los Angeles City Council voted to repeal a recent ordinance banning the operation of medical marijuana dispensaries within the city. According to an LA Times story, activists collected tens of thousands of signatures to qualify a referendum repealing the ban, forcing the Council to rescind the ordinance or place the issue on the March ballot.

California became the first state to legalize medical marijuana through the 1996 passage of Proposition 215, also known as the "Compassionate Use Act." Prop 215 removed state criminal penalties for the use, possession and cultivation of marijuana by individuals possessing a "written or oral recommendation" from a licensed physician that the person "would benefit from medical marijuana." Individuals suffering from illnesses such as cancer and arthritis where the medical use of marijuana has been "deemed appropriate and has been recommended by a physician" qualify for protection under Prop 215.

In 2004, the California Legislature passed Senate Bill 420, which imposed state guidelines stating how much medicinal marijuana a person could legally grow and possess. Under SB 420, an individual could legally possess up to eight ounces of dry marijuana and six mature marijuana plants. An exception was allowing individuals to possess greater quantities marijuana with the recommendation of a physician.

SB 420 also permitted individual counties and municipalities to pass local ordinances allowing individuals to possess larger amounts of medicinal marijuana than allowed under state law. Finally, and most importantly to this issue, SB 420 granted legal protection medicinal marijuana dispensaries, by providing:

Qualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients and persons with identification cards, who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions under Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570.

Despite the fact that operating a marijuana dispensary is once again legal in Los Angeles, as well as other parts of California, under federal law, specifically the "Controlled Substances Act", marijuana is still classified as a Schedule I drug. This means that, even if a person is legally growing or possessing marijuana under California state law, he is still in violation of federal law.

Given that California and federal law are at odds, and that each county and/or municipality in the state is free to adopt its own ordinances, medical marijuana users can be subjected to prosecution even if qualified to possess the drug legally.

Continue reading "Los Angeles City Council Repeals Ban On Medical Marijuana Dispensaries" »