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This is a true story. Martha M., a 72-year-old widow, was charged with murder. She became a widow when her husband, who was suffering and in great pain with terminal cancer, died.  Her husband’s death is how she came to be charged with the crime. You see, she gave him the drugs – through his feeding tube – that ended his life.

But she did this after he begged and cajoled her to do so. She was reluctant but was finally convinced by her husband that it was the compassionate thing to do. They were naïve. They both honestly believed it was legal if she injected the drug into his feeding tube at his sincere request. In fact, she had no idea that what she did was entirely unlawful in California and when the police came for the investigation, as they always do when there is a death at home, she tearfully explained the circumstances. She was genuinely shocked when she found herself immediately under arrest.

Later, the prosecutor reduced the charge against, Martha to manslaughter because the prosecutor determined that while she did kill her husband, it would be difficult to prove that she did so with “wanton disregard” for his life i.e., malice aforethought, which is a necessary element of the crime of murder. That Martha believed she was committing a legal act was not a defense.

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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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  It took five years, but Prop 63 is now the law. In 2016, the California voters passed Prop 63, which outlawed most “large capacity magazines,” as defined by the proposition as a magazine that holds more than ten rounds of ammunition. The nascent law was challenged in federal district court, resulting in a preliminary injunction on implementation of the law after the federal judge found the law to be an unconstitutional violation of the Second Amendment.  The questions were complex, but at its core, the questions before the district court were: “”Does a law-abiding responsible citizen have a right to defend his home from criminals using whatever common magazine size he or she judges best suits the situation? Does that same citizen have a right to keep and bear a common magazine that is useful for service in a militia?” (Duncan v. Becerra, 265 F.Supp.3d 1106, 1112 (S.D. Cal. 2017) .) This was the beginning of many years of court wrangling.

In 2020, the Ninth Circuit upheld the district court’s ruling. In a nutshell, the Ninth Circuit found that the new law infringed on the right of a citizen to self-defense. Although the Ninth Circuit was not speaking broadly about all gun control measures – and, in fact, found the goal of reducing gun control laudable – the court, noted that half of all magazines owned in America are “large capacity magazines” as defined by Prop 63, and would thus make “unlawful magazines that are commonly used in handguns by law-abiding citizens for self-defense . . . burden[ing] the core right of self-defense guaranteed to the people under the Second Amendment.” (Duncan v. Becerra, 970 F.3d 1133, 1169 (9th Cir. 2020)

But wait there’s more. Last month (November 2021), the Ninth Circuit Court of Appeal reversed itself. Once again, the reasoning of the decision is complex and may seem a bit convoluted, as quite frankly, many case decisions are. But this time around, the court did not ask whether the new law implicated Second Amendment rights, except to say that the law placed a minimal burden on core Second Amendment rights. Instead, the court focused on the rights of the state’s (California) interest in reducing gun violence. Noting that the Prop 63 restriction on large capacity magazines does not outlaw all firearms or restrict a law-abiding citizen’s right to self-defense but does reasonably support California’s effort to reduce the incidence of mass shooting and murders.

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Riverside and San Bernardino County prosecutors have started charging individuals accused of selling fentanyl that resulted in death to the user with murder. In Riverside County, the DA is currently prosecuting seven such cases against alleged fentanyl dealers and in San Bernardino County, the DA has filed a at least one murder charge against a fentanyl dealer. In Orange County, the district attorney has announced that his department will begin charging those drug dealers who have previously pled guilty to fentanyl sales and who later are accused with the fentanyl sales that causes a death with murder. (Similar to the Watson advisement, discussed below.)

In all counties, the charge is second degree murder based on the theory of implied malice. Under this theory, the murder need not be intentional. Rather, implied malice means that the conduct of the accused displayed a “conscious disregard for life.” In other words, the accused acted in a way that he or she knew could likely cause death but acted anyway.

There is an analogous law in the DUI statutes. A person who causes the death of another by his or her DUI driving can be charged with second degree murder under the implied malice theory. Under the DUI law, when a person is arrested for DUI, an advisement be given to the offender that puts the offender on notice that driving under the influence can result in the death of another person and if the offender is involved in a DUI fatality in the future, he or she can be charged with second degree murder. This advisement is called a Watson Advisement and is mandated by law.

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The so-called felony murder rule that treated an accomplice to a murder as if he or she was the actual murderer was amended in 2017 so that an accomplice could only be convicted as the murderer when malice aforethought is shown. In practical terms, this means that an accomplice to a murder who was not the actual murderer and who did not plan or anticipate the murder, cannot be held liable for the murder. Previous to this amendment, that was not the case.

Example: Sherry and her boyfriend plan an armed robbery. Sherry’s role is to drive the car to the location, wait for her boyfriend to commit the robbery, and after that is accomplished to drive her boyfriend away from the location. In other words, she was the “getaway driver.” There was no evidence that the plan might include murdering the robbery victim. But as it turned out, the robbery victim had a gun and as he reached for it, Sherry’s boyfriend panicked and fatally shot the victim. Under the old felony murder rule, Sherry would be just as culpable for the murder as it was a “natural and probable consequence” of an armed robbery. Under the amended law, Sherry could not be convicted of the murder unless the evidence showed that she had prior knowledge and/or intent (a plan) that the murder could or would occur.

Effective January 1, 2018, a new law (Penal Code section 1170.95) gave those who had been convicted of felony murder or murder under a natural and probable consequences theory the opportunity to file a petition with the superior court for resentencing under certain circumstances. Many defendants convicted of murder under the old felony murder rule filed a petition for resentencing. But the appellate courts interpretated the relief available under Section 1170.95 as applicable only to those convicted of murder. This left out, for example, defendants who were initially charged with murder under the old rule, but who entered a plea bargain for a reduced charge on manslaughter or who were convicted on attempted murder.

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