Guns and Gangs Equal Long Prison Sentences in California

In California the criminal laws impose harsh penalties on gun charges involving gang members.  These punishments are called sentence enhancements. A sentence enhancement under Pen C §12022.53(b), (c), or (d), for using or discharging a firearm in the commission of certain felonies may be imposed against a defendant if the jury finds that (1) the defendant committed a specified felony for the benefit of a criminal street gang in violation of Pen C §186.22(b), and (2) any principal used or discharged a firearm in the commission of the felony. Pen C §12022.53(e)(1). This provision imposes vicarious liability under Pen C §12022.53 on a defendant in a gang case who does not personally use the weapon. For example, according to one Long Beach Criminal Gang Attorney, the Courts have ruled that the law does not violate equal protection by treating aiders and abettors in killings for the benefit of a street gang more severely than aiders and abettors in killings for the benefit of other equally dangerous criminal associations, such as drug cartels and terrorist organizations). Although the defendant must first be convicted of the underlying offense before the enhancement may apply, the prosecution need not plead and prove the conviction of the principal who discharged the firearm.

A court may impose both a Pen C §186.22(b)(1) and a Pen C §12022.53 enhancement if the trier of fact finds that the defendant personally used or personally discharged a firearm in the commission of the offense. If a person other than the defendant used or discharged a firearm in the commission of the offense, the court may only impose the Pen C §12022.53 enhancement. This type of charge is commonly seen in the Long Beach Court.

In some instances, use of a gun can mean life in prison.  For instance, the criminal court must impose the enhancement term of 25 years to life under Pen C §12022.53(d) on a defendant who personally discharges a firearm causing death in the commission of a murder, notwithstanding the fact that the defendant is convicted of first degree murder with gang-murder special circumstances within the meaning of Pen C §190.2(a)(22) and sentenced to life imprisonment without the possibility of parole.  This is part of the “use a gun go away for life” legislation created in the 90’s.

A defendant who carries a loaded or unloaded firearm on his or her person (or in his or her vehicle) during the commission, or attempted commission, of a street gang crime under Pen C §186.22(a) or (b) is subject to an additional enhancement of one, two, or three years. Pen C §12021.5(a). A two-, three-, or four-year enhancement must be imposed on a defendant who carries a loaded or unloaded firearm with a detachable shotgun magazine, detachable pistol magazine, detachable magazine, or belt-feeding magazine. (Reference, CA BenchGuide)

How Does California Define DUID?

Driving under the influence of drugs is on the rise in the entire World.  Similarly, in the U.S. today it is estimated that well over half the citizenry takes drugs , prescription or otherwise, on a daily basis. With that use it is almost certain that a huge segment of that group will be stopped by the police and suspected to be under the influence of the drug as it realtes to driving. When a defendant is charged with driving under the influence of a drug in california, a showing of a specific measurable amount of the drug in the defendant’s blood is not required say many well read legal scholars. The showing that must be made is that the defendant was under the influence.  Statewide, the term “drug” is defined in Vehicle Code §312 as any substance or combination of substances, other than alcohol, that could affect the nervous system, brain, or muscles of a person as to impair, to an appreciable degree, his or her ability to drive a vehicle in a prudent and reasonable manner. It does not have to be an illegal substance.  Conversely,  It is no defense to a charge of driving under the influence of any drug or the combined influence of alcohol and any drug in violation of Veh C §23152 or §23153 that the defendant is or has been entitled to use the drug under state law. For example in one case the defendant was convicted for driving under combined influence of alcohol and insulin. The critical issue is whether the defendant was under the influence.

Interestingly, the law provides that actual notice of each drug that constitutes a basis for prosecution under Veh C §23152(a) is not required if a person is reasonably made aware of the proscribed conduct, i.e., impaired driving ability resulting from the ingestion of some substance. As an example, the Courts found it was error to dismiss charge against defendant based on his consumption of Kava.  Very often, the law recognizes that a narcotic can often form the basis of a criminal case even though the officer does not initially suspect its use but it is later detrmined to show up in the person’s blood.  Furthermore, judicial rulings have established that no showing that thus the code says, was unconstitutional as applied to this defendant.  In closing, it is not necessary that the criminal complaint specify the particular drug that the District Attorney is alleging impaired the driver in any given DUI prosecution.

If I Was Speeding When Stopped For DUI, Can This Hurt Me?

In California, as is the case in many states the law imposes severe consequences if the driver in a DUI case engages in dangerous speeds at a time he or she was drunk.  California laws for example say a person who is convicted of  actual DUI while driving a vehicle 30 or more miles per hour above the speed limit on a freeway, or 20 or more miles per hour over the speed limit on any other street or highway in violation of Veh C §23103 (reckless driving), must be punished by an additional consecutive term of 60 days in the county jail. According to a local Manhattan Beach DUI Lawyer, if the court grants probation or suspends the execution of sentence, the court must require, as a condition of probation or suspension, that the defendant serve 60 days in the county jail, in addition and consecutive to any other punishment prescribed by the state traffic laws.  The court must order a first time DWI offender to participate in an education and counseling program related to alcohol, drugs, or both.  Furthermore, the judge in any given DUI case may not impose the additional term unless the facts of the reckless driving (and requisite driving over the speed limit) are charged in the accusatory pleading and are either admitted or found to be true by the judge or jury.  The law is clear on this point. However, many well known legal commentators have observed that the finding must be based on facts in addition to the fact that the defendant was driving while under the influence of alcohol and/or drugs, or with a specified percentage of alcohol in the blood. In accordance with applicable statutory code sections. The court may not strike this enhancement except in unusual cases in which the interests of justice would be served. If the court decides not to impose the additional and consecutive term, the court must specify its reasons on the record.

Can the District Attorney Use My DUI Prior Against Me At Trial?

The fact is that many good folks have had the unfortunate luck of having been charged with a DUI more than once in their lives.  This prior conviction can come back to haunt the accused in his new trial.  The District Attorney has alleged it in the new complaint to increase the punishment in the case.   The lawyer will not want the jury to know about the previous DUI conviction as the jury may be prejudiced against the defendant based soley on the fact he has done it before. What can be done?  A motion to bifurcate. One  Hermosa Beach DUI Attorney has opined that if a separate conviction is not stricken before the trial and the issue of its truth goes to trial, the defend the bifurcation of prior convictions is discretionary but should be granted when the defendant will be unduly prejudiced if bifurcation is not granted. The main legal situation in which denial of bifurcation would not result in prejudice is when the jury will learn of the prior conviction anyway. The unfair risk of Prejudice must always be balanced against any  reasonal probative value of the prior.  Factors that affect the potential for prejudice include the degree to which the prior DWI offense is similar to the charged offense, how recently the prior conviction occurred, and the relative seriousness or inflammatory nature of the prior drunk driving conviction as compared with the charged offense say many lawyers that practice in the field of law.  If it appears likely that admission of evidence of the DWI prior conviction would unduly prejudice the defendant, the law says the court should consider whether this potential for prejudice will be lessened for some reason, such as because evidence that the defendant has committed one or more uncharged criminal offenses will be admitted for purposes other than sentence enhancement. Cases where the defendant testifies and opens the door to the prior may be the case.  Indeed,  the risk of undue prejudice posed by the admission of evidence of a prior DUI conviction, considered against the minimal inconvenience generally caused by bifurcating the trial, frequently will militate in favor of granting the defendant’s timely request for bifurcation. Discretion always rests with the judge.  The court may conditionally grant the defendant’s bifurcation motion and reconsider this ruling at the close of the prosecution’s case in chief and again at the close of the defense case, in light of subsequent developments in the proceedings

Long Beach DUI Attorney Talks About Presumptions in Drunk Driving Cases

In a prosecution for driving under the influence in California, the amount of alcohol in the defendant’s blood gives rise to the following rebuttable legal presumptions concerning whether the defendant was intoxicated at the time of the alleged DUI offense:

• If the blood-alcohol level was less than 0.05 percent, it is presumed that the defendant was not under the influence of alcohol. For reference, see Vehicle Code §23610(a)(1).  Some recent Court cases reaffirm this such as where the presumption was sufficiently rebutted by evidence  of defendant’s conduct, even though test showed blood-alcohol level of 0.03 percent.

• If the blood-alcohol level was 0.05 or more, but less than 0.08 percent, there is no presumption either way, but this fact may be considered with other competent evidence in determining whether the defendant was under the influence. Veh C §23610(a)(2). • A blood-alcohol level of 0.08 percent or more gives rise to a rebuttable presumption of intoxication in a drunk driving case. Veh C §23610(a)(3).

The percent, by weight, of alcohol in the defendant’s blood must be based on grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath. Veh C §23610(b). According to one local Long Beach DUI Attorney these rebuttable presumptions do not limit the introduction of any other competent evidence bearing on the question of whether the defendant consumed any alcoholic beverage or was under the influence at the time of the alleged DUI charge.

Long Beach Fire Captain Embroiled in Hit and Run

Just last week  allegations surfaced that a Long Beach fire captain who allegedly was drunk when his vehicle hit a bicycle rider in a bike lane was facing felony charges of hit-and-run and DUI.  The accusations surround an incident that took place in the OC beach town of Seal Beach.  According to news releases, John Hines, 38, of Huntington Beach, was arrested when witnesses followed him to his home on April 1, after the roughly 1:30 p.m. accident occurred on Westminster Avenue April 1. The bicycle rider, whose name was withheld, suffered what Seal Beach police called “major head trauma.’ Hines allegedly was going about 60 mph when he swerved into the bike lane and struck the man east of Bolsa Chica Road.

Long Beach Criminal Attorney Explains the Law of Immunity

In California a witness can be given protection from criminal prosecution of there testimony, this is called immunity. According to a local Long Beach Criminal Attorney, there are two types of immunity: (1) transactional immunity, which prevents the witness from being prosecuted or subjected to penalty for any fact or act on which he or she has been required to give testimony or produce evidence; and (2) use immunity, which only protects the witness from the use of his or her actual testimony or any evidence derived from that testimony.  Use immunity does not protect the witness from criminal prosecution, but merely prevents a prosecutor from using the witness’s immunized testimony against the witness. Use immunity affords sufficient protection to overcome a witness’s Fifth Amendment claim of privilege; transactional immunity is not constitutionally required.  Transactional immunity may only be granted on the District Attorney’s  request.  It is not within the Judge’s power to grant transactional immunity to any witness.

An immunized witness cannot refuse to testify.  An immunized witness may also be prosecuted for perjury or contempt in answering or failing to answer questions in accordance with the order of immunity.