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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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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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The opioid addiction and overdose crisis is old news, but is this country on the cusp of a new prescription drug epidemic? Some experts fear that a class of drugs, benzodiazepines, is the next drug epidemic. Benzodiazepines, commonly referred to as “Benzos”, are effective at treating acute anxiety and panic disorders when therapy and other drugs don’t help. But benzos are powerful drugs and they can be highly addictive. Despite their dangers, benzos are so effective at treating anxiety that prescription rates for these drugs have skyrocketed. The huge increase in the number of prescriptions written for benzos in the past few years suggest that, like opioids, these prescriptions are too freely dispensed.

Many healthcare professionals are concerned and believe more attention needs to be paid to this potential looming crisis. The benzodiazepine prescription trajectory mimics the large increase in opioid prescriptions that ended in a crisis this country still suffers from today. And like opioids, a person can suffer a fatal overdose on benzos.

As with opioids, the legal prescription market has made its way into the recreational drug market. The use of benzodiazepines as a recreational drug among teens and young adults is increasing. Among this age group benzo addiction has taken over the rates of addiction to opioids. While young people may think it is okay to take the drug because it is a prescription drug – even if the prescription is not for them – the truth is, it is dangerous, addictive, and illegal.  Many abusers are also using benzodiazepines in combination with opioids, a dangerous concoction.

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SIXTEEN YEARS AGO HE STOOD BEFORE THE JUDGE AS A CONVICTED DRUG DEALER, NOW HE STANDS BEFORE THE SAME JUDGE TO BE SWORN IN AS AN ATTORNEY.

Being a criminal defense attorney in Orange County can be tough and demanding work. I know that every one of my clients is a unique individual and I can only be their advocate when I understand how they landed on the other side of my desk. A proper defense requires that I learn about my client’s personal story, which often includes getting to know my clients’ families too.  While I celebrate the victories with my clients, sometimes the outcome is less than what we hoped for. Even though this is part of the business, I am still disappointed and feel the pain along with the client whom I have gotten to know as an individual, someone who is more than an accused criminal in front of the judge’s bench. That is why the following story is so instructive and affirming of my attitude as a criminal defense attorney.

Sixteen years ago 27-year-old Ed Martell stood before Judge Bruce Morrow in his Michigan courtroom and pleaded guilty to selling and manufacturing crack cocaine. The defendant faced a maximum 20-year prison sentence. Having grown up in challenging circumstances — the son of a single mother living in low-income housing and relying on government assistance – Mr. Martell entered the world of drug dealing at a young age. By 13 years old, he received his first felony conviction, followed by another two years later. He dropped out of high school to continue his drug trafficking career. Mr. Martell estimated that he had stood before at least 20 judges before his encounter with Judge Morrow.

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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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