Articles Posted in Criminal

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There has been quite a bit in the news about crime in California. Many of the reports are alarming. But what do the data actually say? The California Attorney General’s office (AG) recently released its criminal justice statistical report for 2021. Yes, crime did increase in California last year. But there is a caveat, the rate of crime committed in 2021 for almost all crimes were significantly below the rates of crime in California 30 or so years ago.

For example, the number of homicides increased by 7.2% over the number of homicides in 2020. However, the number of homicides in California in 1993, the year of the historical high, was almost double that of 2021 (2,361 in 2021 vs. 4,095 in 1993). Similarly, the rate of all violent crimes increased 6.7% in 2021 but was substantially below the historical high in in 1992. The AG provided tables going back to 1966 (although 1980 was the first year of complete reporting). The tables, if the raw data is to be compared, shows that 2021 was nowhere near the high crime era of the 1980s and 1990s. The robbery rate, for another example, was 130,867 per 100,000 in population in 1992; it was 43,628 in 2021. In other words, the robbery rate was less than half last year as compared to the high crime year of 1992!

Those of you who lived in California in the late 80s and early 90s may recall the clamor for a “three strikes” law. Looking back at the crime rates then, it is no wonder. And indeed, California’s Three Strikes sentencing law was passed in 1994. Whether it was that law alone or in combination with other factors, or other factors altogether (demographic, for example), we can see on the AG’s tables that crime started to decrease significantly from 1995 onward, many crime rates cut in half from then to now.

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Most people are vaguely aware that the court may order a direct restitution payment to the victim of a defendant’s criminal conduct. In fact, criminal restitution is almost always mandated by law when the victim suffers an economic loss due to the defendant’s criminal act(s). Direct restitution is not ordered unless and until the defendant is convicted of the crime.

The law also mandates that the court order a restitution fine, which is paid to the state.  This is a separate and additional restitution order, but not the subject of this post. Here, we will discuss direct restitution, which is codified at Penal Code section 1202.4.

Direct restitution may be ordered on a misdemeanor or a felony conviction. Following conviction of a crime in which a victim claimed to have suffered economic losses due to the defendant’s criminal conduct, the court will make a restitution order at sentencing or at a later restitution hearing.

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There is a very important concept in the application of criminal law: Intent. Most criminal acts require an element of intent, otherwise the act is generally one of negligence. (Some crimes, while not requiring intent, are criminal because the conduct was criminally negligent, but that is not the subject of this post.)

Whether a crime is one of specific or general intent may be a crucial factor in defense of the crime.  Generally, when a crime is defined as an act without intent to achieve a further result, the crime is said to be a general intent crime. For example, the crime of assault is a general intent crime because it is committed for its own end. A specific intent crime is a criminal act that is carried out with the intent to achieve an additional result. Burglary is a classic example of a specific intent crime. Burglary is the act of entering a structure with the intent of committing a theft or any felony.

Not all laws make the distinction as clearly as the burglary law does and it is not always apparent whether a crime is a general or specific intent law. For many crimes, the courts have offered decisions on whether a crime is a general or specific intent crime, but as the California Supreme Court has recognized the terms “specific and general intent” crimes have been difficult to apply. (People v. Hood (1969) 1 Cal.3d 444, 456,) The Court has also cautioned that the “rote application” of general or specific intent should be avoided. (People v. Hering (1999) 20 Cal.4th 440, 445.)

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As a very general rule, but with a lot of exceptions, a peace officer may not effect a warrantless

arrest on a person who is believed to have committed a misdemeanor if the crime was not

committed in the officer’s presence. This is often referred to as the “In the Presence [of a

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A conviction of first-degree burglary requires evidence that the defendant entered certain structures with the intent to commit a theft or a felony. The structure must be one for which the purpose is habitation, even if not currently occupied, for example, a house, an RV, or a houseboat. Sometimes the element of intent to commit the underlying crime is easily proved because after the defendant entered the structure, he or she did commit the requisite theft or other felony. However, the underlying theft or other felony need not actually to occur to prove the burglary charge. If the prosecution can prove that the defendant intended to commit the underlying crime, that can be enough.

Recently, the California Court of Appeals considered a case where the defendant was charged with burglary when he entered the home occupied by his mother and brother. (People v. Mani, 3DCA, #C088716, 2022 Cal. App. Lexis 66, January 2022.) The prosecution alleged—as the underlying crime to the charge of burglary— that the defendant intended to steal from the home. Although the defendant did forcibly enter the structure and he was holding a kitchen knife, no theft occurred.

The defendant had previously threatened and harassed both mother and brother and both had active domestic violencerestraining orders against the defendant. These prior acts were put into evidence for proof of the defendant’s intent to steal from the home.  The defendant challenged the prosecutions “prior acts” evidence as inadmissible evidence that the defendant had the intent to steal. In other words, previous domestic violence did not prove that the defendant intended to commit a theft.

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This is a tale about how a small change in criminal law can affect a criminal defendant in a big way.

The California Legislature is always busy writing bills seeking to enact new or amended criminal laws. When these bills pass committee and are signed by the governor, they will become law. Sometimes the new or amended laws take effect while a defendant who would be affected by the new law is awaiting judgment, awaiting sentence, or already convicted and serving a sentence. Are the new or amended laws retroactive to these affected defendants?

Here is the tale of the unfortunate Mr. Robinson. His particular encounter with an amended law has been repeated in many variations and many times over the years when a new or amended law takes effect.

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A bench warrant is a warrant for a person’s arrest issued by a judge (the “bench”). Most often these warrants are issued because a person failed to appear in court for an arraignment or other matter or because he or she violated a court order.

It is not uncommon for individuals to be unaware that a bench warrant has been issued. For example, a person who is arrested and released on promise to appear on arraignment, but who does not appear on the scheduled date will, in all probability, have a bench warrant issued for his or her arrest. That individual may not have appeared because he or she was not properly advised of the arraignment date, the arraignment date was changed but the arrestee was not informed, or the arrestee is unaware that charges were even filed subsequent to the arrest.

Example: Joan was arrested in Costa Mesa for misdemeanor trespassing. She was cited and released but was not advised of an arraignment date. Nine months after her arrest, the prosecutor filed a misdemeanor complaint against her. The prosecutor sent a letter to the address Joan provided upon her arrest advising her of the charges and arraignment date. But Joan had moved in the interim and the letter was never forwarded. She had no idea there were charges against her and she just presumed the case was dropped. When she didn’t show up in court, the judge issued a bench warrant for her arrest. Many months later, she was stopped on a speeding violation. The officer ran a records check and learned that she had a warrant for her arrest. She was shocked when she was arrested.

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A person convicted by a judge or jury of a misdemeanor or a felony has a right to appeal that conviction. However, it is not enough to be unhappy with the verdict or think the trial was unfair, there are specific grounds upon which the appeal may be made.

Appeals must be grounded on a legal error made during trial. Common examples include:

  • The prosecution withheld exculpatory evidence.
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I think we can all agree that 2020 was a bad year all around. Drug abuse and overdose was no exception.  In 2020, the number of drug overdose deaths increased 30% to an estimated 93,000 people, the largest number of annual overdose deaths ever recorded in this county. For comparison, when I first started writing on this blog about the opioid crisis five years ago (2016), there were an estimated 63,000 drug overdose deaths. Last year there were an estimated 72,000 deaths. This is a tragedy that affects all ages but more so the young – over 60% of these overdose deaths occurred in the under 45 year old age groups.

Opioids, particularly Fentanyl, represent close to 75% of the fatal drug overdoses, but psychostimulants such as methamphetamines and prescription pain drugs have also contributed to the increased fatalities. Most of the deaths are believed to be caused by contaminated drugs.

Some observers point to the Covid-19 pandemic to explain this alarming increase. Job loses, social isolation, and occasionally the trauma of friends or family contracting COVID-19 may have led to more drug abuse and increased overdose fatalities. Indeed, the statistics indicate that overdose deaths really started taking off in March 2020, strongly suggesting that the pandemic helped drive the increase. The crisis was further compounded by the pandemic because people who were in recovery, getting treatment, or wanted treatment were often unable to get those services due to the lockdowns and other COVID-19 restrictions. Losing the face-to-face interaction that is often crucial to recovery worsened the struggle for many.

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A criminal trial is all about the evidence. It is the backbone of the prosecution’s case. Evidence of a crime is most often circumstantial. It is unusual for the police and prosecutors to have direct evidence of the crime, especially in those cases that go to trial.

Direct evidence is evidence that is based on facts known to be true to the victim or police. For example, if the police or another witness personally observe the crime in progress or the victim personally knew the person who committed the crime against him or her, that would be direct evidence. If the witness testimony is credible, prosecutors can often secure a conviction based solely on direct evidence although more often there is some circumstantial evidence that supports the direct evidence. Sometimes though, even direct evidence doesn’t stand up. For example, say a defendant is accused of assault by another person. A good criminal defense attorney will do a due diligence investigation to make sure the accuser is telling the truth. Perhaps in that investigation, the attorney learns that the accuser held a grudge against the defendant and there is reasonable suspicion that the allegation of assault was fabricated in order to harm the defendant. Even direct evidence must be reliable and offer facts that prove beyond a reasonable doubt that the crime was committed.

Circumstantial evidence is indirect evidence but evidence that can be used to infer the commission of a crime. While not as reliable as direct evidence, circumstantial evidence is conferred the same weight as direct evidence in a court of law. However, because circumstantial evidence is usually weaker than direct evidence, a skilled criminal defense attorney may be able to poke holes in the evidence. For example, if Joe Schmo testifies that he saw someone run from the scene of a robbery who matched the defendant’s description, a good defense attorney will question the reliability of Mr. Schmo’s testimony. Perhaps it turns out that Mr. Schmo’s observation occurred in the dark of night in an area without streetlights. Or maybe Mr. Schmo has poor vision and was not wearing his glasses. Circumstantial evidence must be carefully scrutinized for reliability and reasonability.

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