Federal Courts Weigh In On Overuse of Gang Enhancements

California prosecutes more of its citizens for gang crimes than any other state.  Recently, the Federal courts recognized this overuse of gang enhancements and have reversed a number of California convictions as a result.  One case is Garcia vs. Carey. In Garcia, a California jury found the defendant guilty of robbery, a gun-use enhancement, and a street gang enhancement. (Id. at pp. 1100-1101.) The facts showed the defendant was a member of the El Monte Flores gang. The defendant’s offense occurred after the victim entered a liquor store and nodded to the defendant, who was with two or three other people. The defendant asked the victim if he knew him, and when the victim said no, the defendant said not to speak to him. When the victim tried to leave the store, the defendant identified himself by name, said he was a member of the El Monte Flores gang, and asked the victim if he wanted to get jacked (robbed). The defendant then stole $14.95 from the victim. (Id. at p. 1101.) The liquor store was in the territory of the El Monte Flores gang. (Garcia v. Carey, supra, 395 F.3d 1099, 1102.) The defendant challenged the sufficiency of the evidence to prove the gang enhancement specific intent requirement. (Id. at p. 1100.) The federal district court ruled that the prosecution failed to present any direct or circumstantial evidence that the defendant committed the robbery with the specific intent to promote, further, or assist in other criminal conduct bythe El Monte Flores street gang. (Id. at p. 1002.) The Ninth Circuit agreed. It noted there was no evidence, aside from generic gang expert testimony, “that would support an inference that Garcia robbed [the victim] with the specific intent to facilitate other criminal conduct by the [gang].” (Garcia v. Carey, supra, 395 F.3d at 1103.) There was “nothing inherent in the robbery that would indicate it furthers some other crime” and there was “… a total failure of proof of the requisite specific intent.” (Ibid.) The Ninth Circuit reached the same result in Briceno v. Scribner, supra, and on similar facts. (Briceno v. Scribner, supra, at pp. 1071-72.) The gang expert in Briceno testified almost identically to the expert in Garcia and to the expert in this case: gang members commit these crimes
to gain status or respect and the commission of violence by the gang increases the fear they engender in the community. (Id. at 1074.) The Ninth Circuit again found the evidence insufficient to meet reasonable doubt standards required by the Fourteenth Amendment. (Id. at 1080.) In Briceno, the Ninth Circuit also distinguished post-Garcia California appellate cases which concluded there was sufficient evidence to support the jury’s true findings on the gang enhancements. (Briceno v. Scribner, supra, at pp. 1080-1081.) There was no evidence appellant or his co-defendant brandished gang signs during the attack. (See Id. distinguishing People v. Villalobos (2007) 145 Cal.App.4th 310, People v. Hill (2006) 142 Cal.App.4th 770, and People v. Romero (2006) 140 Cal.App.4th 15.) Instead, Briceno looked to the decision in In re Frank S., supra, 141 Cal.App.4th at 1197, as an articulation of state law which supports the Ninth Circuit analysis of what section 186.22, subdivision (b) requires. (Briceno v. Scribner, supra, at 1081.) “A trier of fact may rely on expert testimony about gang culture and habits to reach a finding on a gang allegation,” but such testimony is insufficient to establish “that a specific individual possessed a specific intent.” (Id. at 842.) . According to several testifying witnesses, appellant’s gang membership was wellknown, but gang membership is not a crime. ( See People v. Castenada (2000) 23 Cal.4th 743, 752.) What was missing in Garcia was purposeful gang involvement. Only the gang expert’s testimony supported the finding that these crimes had been committed for the benefit of the gang and only the gang expert’s testimony that these crimes were committed to gain respect or instill fear in the community. The expert failed to explain what criminal activity was furthered or intended to be furthered by the specific crime committed.

Veterans Benefit in Criminal Court From New Law

A new California law seeks to offer veterans help in criminal cases.  AB 674 allows for treatment rather than jail, says a Veteran’s Organization. The primary focus involves veteran’s in the criminal  justice system. Duncan authored the original draft of AB 674 and he is very  passionate about its implementation. A major problem is that funding issue for programs, while always a challenge, are less so in Santa Clara County. He indicated that Judge Manley runs  a Veteran’s court, at least, once a month. Judge Manley’s coordinator is  Krisha Barrio, coordinator. He says they have a small brochure describing  the program. Thus, the lack of federal funding does not appear to be an  issue. He indicated that what was removed from the statute was a  required court hearing to determine if the veteran qualifies. Now, that  determination can be made by judge using any basis for his determination. All he  has to find is that the defendant’s mental health problems contributed to the commission of the crime and was derived from a service related incident, etc.  For example, this could even include a car accident while on duty, etc., according to one Long Beach Criminal Law Attorney

Changes in the Law:


1) Provided that in  the case of any person convicted of a criminal offense who would otherwise be sentenced to county jail or state prison and who alleges that he or she committed the offense as a result of sexual trauma, traumatic brain injury,
PTSD, substance abuse, or mental health problems stemming from service in the United States military, the court shall, prior to sentencing, make a determination as to whether the defendant was, or currently is, a member of the United States military and may request through the use of existing resources an assessment of whether the defendant may be suffering from
sexual trauma, traumatic brain injury, PTSD, substance abuse, or mental health problems as a result of that service.

2) Stated that if the defendant convicted of a criminal offense is a person who committed the offense as a result of sexual trauma, traumatic brain injury, PTSD, substance abuse, or mental health problems stemming from service in the United States military, and if the defendant is otherwise eligible for probation and the court places the defendant on probation, the court may order the defendant into a local, state, federal, or private nonprofit treatment program for a period not to exceed that which the defendant would have served in state prison or county jail, provided the defendant agrees to participate in the program and the court determines that an appropriate treatment program exists.

Here is an excerpt from a recent article in the paper

A wave of young war veterans is ending up in jail. The common thread among them appears to be Post Traumatic Stress  Disorder that leads to substance abuse and other crimes. The Veterans’  Administration says almost one-third of returning veterans have PTSD, and now some advocates believe they deserve special treatment.  Santa  Clara County Superior Court Judge Stephen Manley presides over one of about 15 “veterans’ courts” in the U.S. They began popping up last year to handle non-violent offenders.  “I have found that they are very often unaware of what benefits they have, and what their entitlements are and there is no communication between the Veterans Administration and the courts,” Manley said.  Most of the veterans are drug offenders who need constant monitoring. Manley has been forging a relationship between the courts and the VA, creating a seamless program that can follow a veteran’s progress. We have immediate action; this is just like an emergency room, we don’t wait,” Manley said

Changes in

Appeals Court Overturns Long Beach Marijuana Ordinance

A California court of appeal overturned the city of Long Beach’s medical marijuana ordinance this week – opening up the door for big changes to how the city tries to regulate the issue.  The California Second District Court of Appeal, Division Three, granted a petition for writ of mandate to the plaintiffs in the case Pack v. The Superior Court of Los Angeles County – ruling that federal law preempts the Long Beach medical marijuana ordinance 5.87.

“The court has found that the permitting process is just not acceptable,” said Matthew Pappas, defense attorney for plaintiff Ryan Pack. Pappas declared the ruling a victory and said that moving forward, “the issue is how much of it (5.87) will survive.”

“The city’s permitting scheme has been struck down,” City Attorney Robert Shannon said. “We will not be enforcing the ordinance for the time being.”He said the tentative plan moving forward would be to present the case’s ruling to the City Council in closed session next Tuesday and move forward from there.At that point (or later), the council may take action to amend or eliminate parts of the law so that it can work within the framing of the court’s ruling. It also could ask Shannon to appeal the ruling to the California Supreme Court – or even ask the Second District Court of Appeal for a rehearing.

Justice H. Walter Croskey, on behalf of Justice Joan Dempsey Klein and Justice Richard Dennis Aldrich, wrote the court’s ruling. “The question presented in this case is whether the city’s ordinance, which permits and regulates medical marijuana collectives rather than merely decriminalizing specific acts, is preempted by federal law,” he said in the ruling. “In this case of first impression, we conclude that, to the extent it permits, it is.”

Later in the 36-page ruling, he cites specific areas of the ordinance where the court has a problem.  “As such, the permit provisions, including the substantial application fees and renewal fees, and the lottery system, are federally preempted,” Croskey said. The appellant is a medical marijuana patient who was running the 562 Collective (3970 Atlantic Blvd.) before it was shut down by the city cease operations deadline of Aug. 29, 2010. He filed the instant action seeking declaratory relief that federal law preempts the ordinance on Aug. 20, 2010. On Sept. 14, 2010, he filed a request for a preliminary injunction, which was denied on Nov. 2, 2010. That led to the request for writ of mandate. Anthony Gayle, another patient and collective owner, also was attached as a plaintiff – he ran the 1 a.m. Collective (Fourth Street).

The attorney asserted the court’s ruling clearly states that the fees Long Beach sought from collectives ($10,000-plus each) and the lottery that eliminated collectives from contention, were both against the law. It is uncertain what other parts of the medical marijuana ordinance also would be struck down – still in question are the parts that regulate how close collectives can be to parks, residential areas and other collectives.  The appeals court did mention the possibility that The Superior Court of Los Angeles County may be briefed on the idea of severability – in essence, declaring that parts of the law are legal (the court cites early examples it saw like regulating the hours a collective could be open or preventing 18-year-olds from entering without a proper guardian and a medical card). Pappas said he hopes the City Council will take this time to make a less constricting ordinance.

“I’ve never said there should be no regulations for medical marijuana collectives,” he said. “I just think it should be reasonable.”

According to Shannon, this ruling does not mean people can begin to open up new collectives tomorrow.”Quite the contrary – the court indicates this action is unlawful and subject to criminal action,” he said. “A way to read this is the city could be free to ban all collectives.”

The federal Controlled Substance Act bans using, growing or selling marijuana. The Compassionate Use Act of California (and subsequently the Medical Marijuana Program Act) decriminalizes those measure for medical purposes – it is that word, decriminalize, that leaves a delineation and does not allow the California law to be preempted. By using the wording decriminalization, the state is not authorizing the use of marijuana – Long Beach’s ordinance, because it has a permitting process, has essentially allowed for authorization, Croskey said.

Long Beach City Prosecutor Doug Haubert has been helping enforce the 5.87 ordinance. He said he has about 70 cases pending involving the citation of that law. This ruling complicates those cases, he said, and it will be at least a few days before he decides how to proceed. “We’re going to be looking at the impact of this case on our criminal cases,” he said. “We were not a party to the Pack ruling, but obviously the city’s permitting provisions have been held invalid and it has yet to be seen what parts of the ordinance are remaining enforceable.

Federal Law May Permit “Secret Searches” of Homes

In recent years, the PATRIOT ACT has broadened the powers law enforcement have to intrude into our personal lives.  One way this has been implemented is through the use of “secret” or covert search warrants.  A covert search warrant authorizes officers to enter a premise when nobody is present, to search for specific evidence and possibly photograph or videotape it, and to leave without taking anything or giving notice that a search occurred. There is no California law upholding the use of covert search warrants; Judges should exercise extreme caution when considering use of such warrants, particularly because Police Officers who execute a search warrant must leave a receipt for any property taken. Penal Code §1535.  According to one Long Beach Criminal Attorney, some federal courts have ruled that officers who execute covert search warrants can effectively seize intangible property (such as visual images and information that evidence exists). U.S. v Freitas (9th Cir 1986) 800 F2d 1451, 1455. Legal opinions recommend delaying notice that the search occurred for up to seven days. More recent federal law permits up to 30 days’ delayed notice. 18 USC §3103a(b)(3) (as amended by USA PATRIOT Act; Fed Crim Rule 41(f)(3).

Federal law suggests the following procedure:

• The probable cause affidavit contained within the search warrant must show that a covert search is  necessary; and

• Special instructions must authorize the police officers to conduct covert search and excuse compliance with notice requirements until a specified date.