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Many of my clients are surprised at the amount of information law enforcement has gathered about them. I wrote awhile back about how ubiquitous law enforcement surveillance is in our everyday lives.   Many of my clients learn the hard way. Not only is it impossible to hide from the police these days unless you go live in the woods (well, not even that), but past crimes that many think they have escaped often come back to haunt the present because technology has conquered our “secret” world.

One of the “gifts” to law enforcement is the cell phone. Cell phones make it so much easier now for law enforcement to track down a suspect, discover a suspect’s plans or activity (although this usually will require a search warrant or consent in California), and learn much more about a suspect just by reviewing cellphone or cell tower data. We want to believe law enforcement conducts their cell phone surveillance lawfully but in this age of whistle blowers, we know that is not always the case.

One of the supposed advantages of iPhones is that the data on the phone is encrypted. Even law enforcement cannot access information from an iPhone…or so they say. The reader may recall the outrage over the reported inability of the FBI to access the iPhone data of the San Bernardino terrorist. The FBI couldn’t crack the iPhone code and asked (well, ordered) Apple to create software that would allow the FBI access. Apple refused. Before the FBI went to court to compel Apple to crack the code, the FBI paid a third-party “hacker” to break into the phone’s data.

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Recently New York Public Radio station WNYC profiled an in-depth investigation on police misconduct in the New York Police Department. The investigation revealed hundreds of incidents of misconduct by NYPD officers, including stealing and assaulting New York City residents. The investigation revealed that some of the officers were found to use excessive force by internal affairs, others of firing their gun unnecessarily, and that is just a sampling of the offenses the internal affairs department of the NYPD found officers committed. Most of these officers did not lose their job and many are still on the beat.

Sometimes officer misconduct can ruin an innocent person’s life. For example, recently a New York Police Department officer was convicted of fabricating drug evidence. His false evidence sent an innocent man to prison. Another NYPD homicide detective, once renowned for his investigation skills, is accused of tampering with evidence, prompting the district attorney to review over 40 cases the detective was involved in, which has already resulted in the court overturning 7 of the cases. This is similar to the Baltimore scandal where numerous cops were found to be planting evidence. The worst part is: innocent people end up losing their freedom because of bad cop behavior and often the public is completely oblivious.

In New York, as well as in California (and the only other state being Delaware), law enforcement misconduct records are shielded by law from disclosure to the public. May we reasonably infer that California law enforcement records contain similar incidents of misconduct?

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APPELLATE COURT FORCES CHANGE IN BAIL HEARINGS

I have previously written about the judicially appointed Pretrial Detention Reform Workgroup’s efforts to analyze and recommend reforms to the California bail system and the California Money Bail Reform Act. Both efforts are directed at reforming the inherently unfair bail system in California that sends poor people to jail before they are convicted of the crime because they cannot afford the bail ordered by the court.

Earlier this year, the Court of Appeal stepped in front of this issue. The court’s published decision in In re Humphrey, Court of Appeal, 1st Appellate Dist., 2nd Dv. (January 25, 2018) will force changes in the bail system, even if our representatives never get around to bail reform legislation. In this case, San Francisco resident Kenneth Humphrey was arrested and charged with robbery. Mr. Humphrey’s bail was set at an amount he could not afford. He was remanded to jail where he remained prior to any hearings or trial on his guilt or innocence.

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With so many tragic mass shootings in recent years, law enforcement is under pressure. There are allegations that the FBI failed to investigate information they received about the recent Parkland, Florida shooter and that some of the responding officers did not act to stop the shooter. Law enforcement has a tough job. Should they act on every suspicion? Should we turn our schools into highly patrolled police zones?

A week after the Parkland school shooting, the prestigious Harvard Westlake school in Los Angeles was closed after a former student, Jonathan Martin, who had also been a football player for the NFL, posted a photo on Instagram showing a rifle with #HarvardWestlake and #MiamiDolphins text on the gun.   Mr. Martin was arrested for the post.

There have been numerous threats on schools, prompting law enforcement to respond to each one of these threats. Even when it was reported that two students were overheard that they wanted to “shoot up” a Los Angeles area high school, law enforcement rushed in and arrested the two. Virtually every day there is news that the police have arrested someone who made a threatening post on social media, called in threats, or were heard making threats. Often when the police act on these reports, guns are found on the arrestee’s person or in their home. In the case of Mr. Martin, he reportedly had at least one gun in his possession. In another recent arrest of an L.A. area 17-year-old who made threats against a high school in Whittier, law enforcement found two assault weapons, two handguns, and 90 high-capacity magazines at the home the boy shared with his father.

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The evidence is the heart of any criminal case. We usually think of evidence as evidence that supports (or proves) the allegation that the crime was committed. This is technically called “inculpatory evidence” as it tends to incriminate (or inculpate) the defendant. But what about evidence that tends to exonerate (or exculpate) the defendant? This evidence is called “exculpatory evidence” but it seems we hardly hear about this type of evidence.

In the seminal case, Brady v. Maryland, 373 U.S. 83 (1963), the United States Supreme Court held that in any criminal case, the prosecution has a constitutional duty to reveal to the defense any evidence it has that might show the defendant is innocent of the crime charged or did not commit the crime in the manner charged. This is the defendant’s due process right. This is commonly referred to as Brady evidence or a Brady disclosure and it applies to all California criminal cases.

Brady evidence can be physical evidence, witness statements, video footage, recordings, or any evidence that has a “reasonable probability” of establishing that the defendant did not commit the crime or did not commit the crime to the level charged (for sentencing mitigation purposes). A good example might be evidence that a credible witness to the alleged crime comes forth and states that he saw the police plant evidence. If this were a true statement (and it certainly happens, as the recent incidents in Baltimore have exposed), it is exculpatory and the prosecution must reveal it. But the police would certainly try to cover this statement up, sometimes even with the help of the prosecutor. Hopefully this doesn’t happen often, but it is unfortunate that the prosecution and the police sometimes do suppress exculpatory evidence in furtherance of their own prosecutorial agenda. Orange County had its own Brady evidence scandal a few years ago.

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A turkey? A person who has had a bit too much to drink? A spinning top?

Well, it might be all those things, but in California law, a “wobbler” refers to an offense that may be charged and punished as a felony or a misdemeanor. There are literally hundreds of wobbler offenses on the California law books. Although the Penal (criminal) Code lists the most wobblers, these offenses are also found in other codes, such as the Business and Professions Code, the Health and Safety Code, the Professions Code, the Vehicle Code, the Commercial Code, and the Family Law Code. A wobbler provides for punishment by incarceration in state prison (a felony) or in county jail (a misdemeanor).

For example, a charge of assault with a deadly weapon other than a firearm under Penal Code section 245 is punishable by either two, three, or four years imprisonment in state prison or incarceration in county jail for six months to one year. It’s important to keep in mind that even though the punishment calls for incarceration, that does not mean that if the defendant is convicted he or she will go to jail or prison. Even if convicted, and depending on the circumstances of the crime, the court will often “stay” or “suspend imposition” of a sentence and grant the defendant probation or some other alternative sentence.

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While every defendant has a constitutional right to a jury of his or her peers, criminal charges rarely go to trial. In fact, around 97% of criminal cases are resolved by a plea bargain. A plea bargain is when the defendant pleads guilty or nolo contendere (no contest) to criminal charges. Often the process involves the prosecutor agreeing to dismiss some of the charges in exchange for a plea to the remaining charges. Sometimes, the plea will include an offer of a low-end sentence or probation in exchange for the plea. These are called conditional pleas. An open or unconditional plea is one where the defendant pleads guilty with no promises made to him or her for the plea.

The judge has very little to do with the conditional plea process and, in fact, in California, the judge is not allowed to engage in any plea bargaining. However, at the time the plea is entered by the defendant in court, the judge can reject the plea agreement but the judge cannot change the terms of the agreement. Open pleas can be made to the court and the judge can, in that instance, indicate the sentence he or she will levy against the defendant. If that sentence is not imposed, the defendant can withdraw the plea.

Following the acceptance by the judge of the defendant’s plea of guilty or no contest, whether after a plea bargain with the prosecutor or an open plea, the court will enter judgment, that is, the judge will enter the conviction pursuant to the plea.

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A defendant was charged with three separate armed robberies. The three victims all identified the defendant in a “six-pack” photographic lineup. In closing arguments at the jury trial, the defense attorney questioned the correctness of the identifications. The prosecution rebutted, stating that there were three victims who identified the defendant separately at different times. Referencing what the prosecutor called a “fancy expression” known as Occam’s Razor, the prosecutor argued that the reasonable doubt standard requires that the obvious answer is the best answer.

Occam’s Razor is a term that that refers to a problem-solving principle. Simply put, the principle states that when faced with competing hypotheses, the simpler one is the best one. The more assumptions that must be made to explain a hypothesis, the less likely that hypothesis is the correct one.

In the case of the armed robber, the defense argued that the victims misidentified the defendant in the photographic lineups. But implicit in the prosecutor’s statement was that it would require more assumptions to accept that conclusion than it would to conclude that each of the victims, by separately identifying the same person (the defendant) in the photographic lineup, correctly identified the defendant.

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2018 saw major change on California’s statute books, many within the criminal law arena. Below are some of the changes in law that impact those who may be facing criminal charges and those who have already been convicted.

JOB APPLICANTS WITH CRIMINAL CONVICTIONS

You may have heard the term “Ban the Box.” This term refers to new legislation in California that now prohibits an employer with five or more employees from requiring a job applicant to disclose past criminal convictions during the application process.  Practically speaking, the new law prohibits most employers from including “the box” on an employment application that asks if the applicant has ever been convicted of a crime. The law now also prohibits the employer from asking the applicant about his or her criminal history during the interviewing process. It is only after an employer makes a conditional offer of employment that the employer can ask the potential employee about previous criminal convictions. If the employer then rescinds the conditional offer, the employer must inform the prospective employee in writing with an explanation of why the offer is being rescinded. The law allows the applicant to dispute the evidence provided by the employer in the notice and the employer must consider the applicants submission.

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This is a true crime story with a twist:

Ascension Alverez-Tejeda and his girlfriend were transporting drugs in their vehicle. They stopped at a traffic light and when the light turned green, the car in front of them began to move through the light then stalled. Mr. Alverez-Tejeda stopped in enough time to avoid rear-ending the stalled car but the truck behind him did not. The truck tapped the bumper of Mr. Alverez-Tejeda’s vehicle. Two police officers responded, and the truck driver ended up getting arrested for driving drunk. Since there was no damage to Mr. Alverez-Tejeda’s vehicle, he asked the responding officers if he could leave. He was told that the officers needed a statement from him and he was directed to move to a nearby parking lot.

Mr. Alverez-Tejeda and his girlfriend were then told by the officers to give their statements inside the police cruiser. While they sat in the police car, Mr. Alverez-Tejeda’s vehicle was stolen. The police took off after the thief but returned to tell Mr. Alverez-Tejeda that the thief got away. What a stroke of bad luck for these would-be drug transporters. But it got worse: When the police recovered the stolen car, they obtained a search warrant and the drugs were found in the vehicle. Mr. Alverez-Tejeda was arrested and charged with transporting cocaine and methamphetamine.

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