Gang Crime Requires That Both Perpetrators a Belong To Same Gang

There are many criminal cases involving gangs in Long Beach Court.  In this case the appeals Court threw out the conviction of one gang member because the law did not support the jury’ decision.

Appellant (a “Puente 13” gang member) was convicted of robbery, participating in the felonious conduct of a criminal street gang, and other offenses, based on evidence he aided an 18th Street gang member, de la Paz, in obtaining money from Bransford. One issue on appeal was the sufficiency of the gang participation evidence.

On appeal the court threw out the case holding that Penal Code Section 186.22, subdivision (a) requires evidence that the defendant is an active gang participant who knows his gang engages in criminal conduct and who willfully promotes or assists “in any felonious criminal conduct by members of that gang.” The plain meaning of the statute reflects that the Legislature’s use of the word “that” preceding the singular “gang” refers to the same gang of which the defendant is an active participant. Appellant and de la Paz were members of different gangs and no evidence showed they were members of subsets of the same gang who typically work together. The evidence was insufficient to sustain the conviction for gang participation.  (CCAP). This case was heard in a criminal Court near Long Beach, the law will apply to all cases throughout the state.



Multiple Threats During A Single Incident Is Only One Crime

The defendant in this case was accused of making multiple criminal threats against the victim during one tirade.  At trial the jury convicted the defendant of more than one crime.  The appeals court reversed, here are the facts: During a 15 minute exchange with Rosales, Wilson twice threatened to kill Rosales and his family. Among other offenses, the prosecution charged Wilson with two counts of making criminal threats (Pen. Code 422): one for making Rosales fear for his family’s safety and the second for making Rosales fear for his own safety. The jury convicted Wilson of both counts.

He appealed his criminal convictions and the court agreed holding To convict a defendant of making criminal threats, the prosecution must prove that the defendant’s threats caused the victim “reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety . . . .” (Pen. Code, § 422, subd. (a).) After examining the statutory language, the appellate court concluded that “section 422 prohibits multiple convictions based on multiple threats toward a single victim during a single encounter.” The requirement that the victim be in “sustained fear” occurs over a period of time that is more than momentary or fleeting. As a result, multiple threatening communications to a single victim during a brief, uninterrupted encountered will not support multiple section 422 convictions. Additionally, there is no indication that the Legislature intended to create two separate crimes when, during a single encounter, a victim fears for both his own safety and his immediate family’s safety. Instead, the Legislature simply identified “different circumstances in which the single crime defined by the statute can be committed.” Court reversed. .(CCAP)


Criminal Case Dismissed For Loss Of Video

The law does require the government to save evidence if it can be used in a criminal defendants case.  Here the authorities dropped the ball

Defendant was caught with drugs at the San Ysidro border crossing with Mexico. Upon being taken into custody, defendant repeatedly told officers she tried to make herself conspicuous to get caught because she had been forced to participate in the drug smuggling. After she was charged with drug offenses, her attorney sent a letter to the U.S. Attorney asking that the border crossing video be preserved. After defendant’s indictment, her attorney secured a court order that the video be maintained. Later, counsel learned the video had been destroyed. After defendant’s motion to dismiss the indictment was denied, she entered a conditional plea and appealed. Held: Reversed and remanded to dismiss indictment. In California v. Trombetta (1984) 467 U.S. 479, the Court held the government violates a defendant’s due process rights if the unavailable evidence possessed exculpatory value that was apparent before the evidence was destroyed and defendant is unable to obtain comparable evidence by reasonable means.

In Arizona v. Youngblood (1988) 488 U.S. 51, the Court added the requirement that the government acted in bad faith in failing to preserve the evidence. Here, defendant offered a duress defense and the destroyed video was potentially useful to support that claim because it purportedly showed defendant’s attention seeking behavior. A review of defendant’s interview with border patrol agents established they knew the potential exculpatory value of the evidence before it was destroyed, because defendant repeatedly asserted she acted under duress and wanted to be caught. The government acted in bad faith by destroying the video. Thanks ccap.

DUI In Long Beach? It May Cost You!

A driving under the influence arrest anywhere in California can be very expensive but a DUI in Long a Beach can be more costly than anywhere else in Los Angeles county.  Why?  The reasons nay be that the city attorney often asks for much higher fines than other jurisdictions .

For example, the usual fine for a first offense is $390 plus penalty assessments.  But, a fine for many dui charges in Long Beach can be $450 or more which can result in a total fine of $2500 versus $1900 in many other areas.

the Court will usually accept the fine because it is not contested, however, many local Long Beach DUI lawyers have commenced a fight on the higher fines.

A local judge will have to rule on the legality of the high fines.



DUI Upheld Despite Lack Of Search Warrant

This case represents one if he many new opinions interpreting the US Supreme Court case requiring a warrant when a DUI suspect refuses a blood test.

Harris was charged with driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)) and being under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a)). His motion to suppress evidence was denied (People v. Harris (2014) 225 Cal.App.4th Supp. 1) and he appealed. Held: Affirmed. Harris claimed on appeal that submission to a chemical test under California’s implied consent law (Veh. Code, §§ 23612, subd. (a)(1)(A), 13353, 23612, subd. (a)(1)(D)) does not constitute valid consent to a search for purposes of the Fourth Amendment. In Missouri v. McNeeley (2013) 133 S.Ct. 1552, the Court held that the dissipation rate of alcohol in the blood does not constitute an exigent circumstance justifying a warrantless blood draw and that this had been the law since Schmerber v. California (1966) 384 U.S. 757. In McNeeley and Schmerber, where the defendants refused to take chemical tests, the Court did not decide whether a defendant’s submission pursuant to a state’s implied consent law constituted a reasonable search. Here, after being advised of the adverse consequences of refusing to consent to a chemical test, Harris said “okay” and allowed his blood to be drawn at the jail. “The fact that a motorist is told he will face serious consequences if he refuses to submit to a blood test does not, in itself, mean that his submission was coerced.” Harris’ “free and voluntary submission to a blood test, after receiving an advisement under the implied consent law, constitutes actual consent to a blood draw under the Fourth Amendment.”

The court found that even if the blood draw violated the Fourth Amendment, the good faith exception to the exclusionary rule applies. Citing Davis v. United States (2011) 131 S.Ct. 2419, the Court of Appeal held that even if the warrantless blood draw in this case violated the Fourth Amendment, the good faith exception applied because officers acted in objectively reasonable reliance on binding appellate precedent. Prior to McNeeley, California cases interpreted Schmerber to recognize the dissipation rate of alcohol in the blood as an exigent circumstance.

The blood draw was conducted in a reasonable manner. Harris also claimed his blood was drawn in an unreasonable manner in the jail. The key inquiry is whether the manner in which Harris’ blood was drawn deviated so far from medical practices to render it unconstitutional. There was no evidence that Harris’ blood draw in the jail by a trained phlebotomist increased the danger he would suffer unreasonable pain or risk of infection. Under the totality of the circumstances, the method used to extract his blood was reasonable under the Fourth Amendment. (Thanks CCAP)

NCIS Blunder Results In Release Of Pedophile

Many police mistakes lead to the dismissal of criminal charges.  This case exemplifies this rule .  Many people would be offended by the result, though not a Long Beach case per se, the agency certainly as well known in the community.

Naval Criminal Investigative Service (NCIS) Agent Logan conducted an investigation for online criminal activity in the State of Washington. He found evidence of a computer accessing child pornography and turned the matter over to state law enforcement. Based on evidence initially developed by state authorities acting on Logan’s information, Dreyer was ultimately convicted of federal child pornography charges and sentenced to 18 years in prison. He appealed the denial of his motion to suppress evidence.

The appeals court reversed the conviction.  Direct military enforcement of civilian laws is generally prohibited by the Posse Comitatus Act. Although the PCA expressly refers only to the Army and Air Force, the Navy and Marines are likewise included because PCA-like restrictions apply as a matter of Department of Defense policy. NCIS agents are similarly restricted even though many are civilians, because they further the Navy’s interests and the NCIS Director reports to the Secretary of the Navy. There is an exception to PCA where the military indirectly assists civilian law enforcement, or where an independent military purpose exists. But Agent Logan’s surveillance of all computers in Washington, which he instigated, was not focused on military or government computers, and was a prohibited direct military enforcement of civilian laws. Further, it was a repeated practice for NCIS to conduct such searches. “The extraordinary nature of the surveillance here demonstrates a need to deter future violations.”   Thanks to CCAP.

Important Issues Regarding Criminal Law Before The Supreme Court

The US Supreme Court decides the law of the land, particularly those cases related to criminal defense and procedure.  This session the Court is considering a case where the issue is whether a police officer can stop a motorist under a mistaken belief that a violation of the law exists.  the case at hand is Heien vs. North Carolina.  In that case the policeman pulled over the defendant for not having two working brke lights, turns out that is not illegal in the state,  afterwards evidence was uncovered which led to a criminal prosecution against the driver.

The Court will be asked to consider whether a stop of a citizen is legal when the officer had a mistaken belief that his or her conduct violated the law.  This issue is surprisingly common in California where many stops are made on the motoring pubic for alleged violations which turn out later to not be a violation of the vehicle code at all.

Bruce Blythe, a DUI Attorney in Bakersfield recounts one case in particular where he represented a driver from out of state who had only one license plate on his car, in the back.  California law requires two plates if the car is registered in this state but the law only compels the owner display the number of plates issued, if the car is registered elsewhere.  Turns out the laws in many states is that only one plate is issued, as was the case in his example.  Well, the CHP stopped the car an the driver turned out to be under the influence.  Buck filed a motion challenging the stop on the grounds the contact violated the Fourth Amendent, the case was dismissed under current CA law that makes the mistake on the officer’s part unreasonable.  This could change if the IS Supreme Court finds these types of actions ere OK.

California follows federal law when it comes to fourth amendment violations so any adverse decision will definitely impact the citizen of this state.  The Heien case will also influence how aggressive cops will get in areas such as drug interdiction.  Other cases are also slated to be decided in this term, however the Heien vs. North Carolina cases will have the most deep felt impact on defense attorneys and the rights of all of us for years to come.

Many believe that the police will stop people with no cause and make up a reason that they thought the actions were a violation of the law was illegal even though it was not.  This is a scary proposition to many experts who are concerned the police will have unbridled discretion to detain innocent members of the public .