July 25, 2010

CALIFORNIA DISCOVERY-DISCOVERY OF CONFIDENTIAL INFORMANT NOT REQUIRED

disclosure of A confidential informant is not mandatory even when THE informant was percipient witness. This is outrageous. But according to this Court of Appeal, the court had duty to hold in camera hearing to determine if the confidential information can given exculpatory evidence. "[T]he balance between the public interest in protecting the flow of information to law enforcement officers and Davis's right to prepare his defense is struck by having an in camera hearing prior to any disclosure."

Really? So, rather than the 6th Amendment to confront the acusers, we have an "in camera" review where the judge says what? "Dear CI, now you would never 1) lie; 2) color the facts, or; 3) cover up for your friemds, would you?" CI: "Why, no, your honor. Never!".

It is well known that only through thorough cross examination does the truth come out. This case guts the truth-extracting process.

Davis v. Superior Court (B216345, Second Dist., 7/22/10) Cal.App.4th


July 23, 2010

CALIFORNIA CRIMINAL DEFENSE: DEFENDANTS HAVE THE RIGHT TO PRE-PRELIMINARY HEARING PITCHESS DISCOVERY

WE DO GET PITCHESS DISCOVERY PRIOR TO THE PRELIMINARY HEARING

This is the case on whether sefense attorney can get Pitchess discovery (11 CAL.3d 531) prior to the preliminary hearing; and whether defense attorneys can get ANY discovery prior to the prelim.

The California Supreme Courtsay that Pitchess discovery wouldn't have made any difference here, so they uphold the denial in this case. But they expressly say that Pitchess discovery is available prior to the prelim. Their point is that there's no express legislative ban on Pitchess discovery prior to the prelim. The only express ban regarding discovery at prelim is found in PC 866, which only bans USING the prelim itself for discovery.

The reasoning here supports us getting ALL discovery pre-prelim, since nothing expressly bars it.

The court notes that nothing changes the previous practice of pre-prelim Pitchess Besides the fact that Galindo himself lost here, the only bad thing is that we don't have a right to continuances to pursue Pitchess discovery. But if we make a sufficient showing for the need for Pitchess at the prelim stage, the magistrate MUST grant the Pitchess motion, and CAN grant a continuance. Even if the magistrate is going to deny the continuance, we are still entitled to the discovery, so we can at least speed up investigating a case by making a pre-prelim Pitchess motion.

Galindo v. Superior Court; 2010 DJ DAR 11347; DJ, 7/23/10; Cal. Supremes


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July 12, 2010

CALIFORNIA CIVIL RIGHTS ATTORNEY - JUDGE SAYS: ORANGE COUNTY SHERIFF DEPUTIES MAY HAVE USED EXCESSIVE FORCE

by Teri Sforza, Register staff writer

Perhaps the question is not if the county will settle this lawsuit, but when, and for how much…?

It’s not going well when a federal judge writes, “a reasonable jury could conclude that the defendant officers used excessive force against Ms. White …. Ms. White was not under suspicion of having committed any crime. Nor were the officers present to investigate Ms. White. Indeed, the officers were standing on Ms. White’s property without having obtained a warrant ….”

OUCH

We told you recently about the case involving an Old English sheep dog, a woman named Toy (who suffered a nasty black eye), and an Orange County Sheriff’s deputy who was arrested for DUI after two crashes within a half-hour.

Mission Viejo paid $24,000 to make this suit go away – but it is still grinding against former Deputy Allan James Waters’ bosses, the County of Orange and the Sheriff’s Department, racking up legal bills.

(Waters, by the way, is no longer a deputy. And shortly after he turned in his uniform, he was arrested for DUI and on suspicion of being a drug dealer who traded fake drugs and cash in exchange for real prescription drugs. The District Attorney’s Office said he tried to pull a fast one by using a white powder instead of cocaine. Oops.)

The county has settled one other case involving Deputy Waters for $32,000.

DOG GONE

On July 7, 2007, Toy Whitewas home in Mission Viejo with her husband Steve and their three Old English sheep dogs. A woman entered the property without permission, the suit says - and one of the dogs bit her.

That evening, there was a knock at the Whites’ door. They opened it, and there stood four OC sheriff’s deputies and a Mission Viejo animal control officer. They entered the house without the Whites’ consent – and without a warrant - demanding that the dog be surrendered for a 10-day quarantine.

Mission Viejo law allows for in-home quarantine when a bite happens during trespassing on private property. The Whites said they wanted to do that instead.

And here, according to the suit filed in federal court, is where things got dicey. The deputies became threatening and said, “Just give up the dog,” the suit says.

Toy White asked the officers to leave her house; they would continue the discussion outside. As she placed her hand on the door handle, “she was violently grabbed and thrown face first onto the tile floor, without warning or provocation, by (deputies) Macias and Waters,” the suit says. She was then cuffed tightly, arrested, and hauled off to jail.

The dog, meanwhile, was taken into custody as well. The dog was returned the following day, when the city realized its error; but White was arrested for battery on an officer and resisting arrest. The District Attorney’s office did not proceed, however, determining that the officers had no authority to enter the house, and no legal right to remove the dog, the suit says.

Deputies named, along with Waters, are J. Macias, S. Crivelli and T. Jansen, along with animal control officer H. Holmes. They maintain that White was threatening, advanced toward the deputies and resisted arrest.

SAYS THE JUDGE

The suit is in federal court, before Judge David O. Carter. He made the comments we’re quoting in an order granting in part, and denying in part, the county’s motion for summary judgment (a determination made by the court without a full trial).

Writes Carter: “…it remains a disputed issue of material fact as to whether Ms. White made any contact with the police officers. Even if Ms. White made such contact, the officers would only be entitled to use the force necessary in the circumstances, which was minimal since the officers concede that Ms. White was in the office of closing the front door to Plaintiffs’ residence and thereby imposing a physical barrier between herself and the officers.

“To the extent the officers now claim it was necessary to physically restrain Ms. White in order to effectively combat the harm alleged to have been caused by the Plaintiffs’ dog, the Court is unconvinced. It is for a jury to determine whether Ms. White’s restraint was a reasonable response to the threat that a dog inside Plaintiffs’ home posed a public safety risk. But the mere fact that Ms. White resisted the officers’ attempts to enter her residence without a warrant is far from a legitimate basis for the officers’ actions on July 7, 2007.”

The Whites’ attorney, Mary Frances Prevost, is understandably encouraged. She doesn’t completely understand why the county doesn’t cut its losses here, but postulates that it’s the way the system is set up. Lawyers make more money when cases go to trial, she says. Lawyers make less money when cases settle.

[california civil rights attorney, san diego civil rights attorney, orange county civil rights attorney, riverside civil rights attorney, imperial county civil rights attorney, san francisco civil rights attorney, ventura vicil rights attorney, santa barbara civil rights attorney]

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July 12, 2010

WHEN WILL ORANGE COUNTY SETTLE ITS POLICE BRUTALITY CASE AND STOP PAYING ITS LAWYER TO DEFEND THE DIRTY COPS?

I have been posting on this issue for a long time. And it's been too long since the County of Orange decided not to settle this horrible case.

Instead, the County of Orange is protecting a dirty cop who crashed in a DUI accident, beat another person and settled the case, sold "bunk" (fake drugs) to get money, and beat a 5'2" cosmetics representative to the ground in her own home.

Well, when the firm of Sullivan & Ballog, who are defending the rogue cops in this case, tried to get the case kicked out of court, the judge said "No!"

Here's the article:

http://taxdollars.ocregister.com/2010/07/12/officers-used-excessive-force-ruling-suggests/60459/

July 9, 2010

CALIFORNIA CRIMINAL DEFENSE: WHEN IS IT A MASSIAH VIOLATION?

MASSIAH VIOLATIONS

The police put a guy into the defendant's cell, figuring that they might get an admission from the defendant. The guy (who was implicated in the crime) did in fact get the defendant to make several incriminating statements. Does this violate Massiah (377 US 201), which bars the DA from sending undercover informants into jail to elicit confessions? No.

The informant did deliberately elicit incriminating statements, one requirement of Massiah. But the second requirement was not met: the informant has to
be acting as a government agent. This means he had to have acted under the direction of the government. The Supremes assure us that there was no evidence that there was any preexisting arrangement between the informant and the police. This is the kind of case where 10 years from now we're shocked to hear that the police did send this guy in so he
could get a break on his own case.

People v. Hartsch; 2010 DJ DAR 9870; DJ, 6/29/10; Cal. Supremes

July 9, 2010

CALIFORNIA DUI DEFENSE: NEW DUI IGNITION INTERLOCK CHANGES FOR 2010

IGNITION INTERLOCK DEVICE CHANGES 2010; by JOSHUA DALE

The new ignition interlock scheme that changed DUI laws on July 1, 2010 shouldn't phase any of us. One of the laws helps our multiple DUI offenders, the other hurts any DUI offenders in only four counties - Alameda, Los Angeles, Sacramento, and Tulare.

INTERLOCK.jpg



AB 91 - Pilot Project IID Requirements

The new "Pilot Program" comes from AB 91. The act amended Sections 13386 and 23576 of, and added and repealed Chapter 5 (commencing with Section 23700) of Division 11.5 of, the Vehicle Code, relating to vehicles. It is an experiement lasting until January 1, 2016 when DMV must report on the effectiveness of this scheme.

All DUI convictions after July 1, 2010 cause notice to be sent to offenders from the DMV notifiying them they must install the interlock device for a period of time. All first time and repeat violators of California Vehicle Code 23152 or 23153 are included. Note that this doesn't include dry or wet reckless.

First offenders will receive a 5 month IID requirement. Second offenders a 12 month requirement. Third offenders a 24 months requirement and fourth offenders 36 months. 23153 convictions require more time.

Persons are exempt of the requirement if within 30 days of notice by the DMV, the person certifies no ownership of a vehicle, no access to a vehicle at his or her residense, acknowledgement of licensing, IID requirements, and requirements if situation changes. Motorcycles are not included at this time.

In order to grasp all the ramifications of the new ignition interlock experiment law read it at http://www.leginfo.ca.gov/calaw.html - public defenders should pay particular attention to the sliding scale fees that low income persons will pay. It is based on the Federal Poverty Levels.

Note also, that the judge does nothing in sentencing - this is all handled at the Department of Motor Vehicles depending on from what court the abstract comes from.

SB 598 and SB 895 - Multiple Offender IID Benefits

SB 598 amended Sections 13352, 13352.5, 23109, 23550, 23550.5, 23552, 23566, and 23568 of the Vehicle Code, relating to vehicles. SB 895 amended Sections 13352.5, 13353.3, and 23247 of the Vehicle Code, relating to vehicles, and declaring the urgency thereof, to take effect immediately on July 1, 2010.


These two pieces of legislation confer to multiple offenders the possibility of a restricted license after a shorter amount of time regardless of the DMV administrative per se suspension. Again, this happens at the DMV and has nothing to do with the judge unless the judge has prohibilted a restricted license to the defendant. Here's how it works.

A convicted second offender can apply for a restricted license after 90 days suspension - A convicted third offender can apply for a restricted license after 6 months suspension - A convicted fourth offender can apply for a restricted license after 12 months suspension. Several of the new provisions of 13352 apply to persons convicted of 23153 too.

The secret to getting the administrative per se DMV suspension credited and/or terminated is written into subdivision (c) of Section 13353.3. In each offender's case, he or she must have insurance (SR-22), be in the proper class for the correct amount of time (and stay in the class), have proof of the IID installed in the right vehicle, and pay the fees demanded by the DMV.

The length of how long they must keep the IID is found in California Vehicle Code Section 23575(f). The restriction shall remain in effect for at least the remaining period of the original suspension or revocation and until all reinstatement requirements in Section 13352 are met.

Finally, pursuant to Section 23620, a violation of Habor and Navigations Code 655 is included in 13352's legislative changes making this count as a separate offense in calculating length of IID required.


This work is licensed under a Creative Commons License.

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July 5, 2010

CALIFORNIA CRIMINAL DEFENSE: REPEATEDLY INVOKING MIRANDA ISN'T INVOKING MIRANDA

REPEATEDLY INVOKING MIRANDA FAILS TO INVOKE MIRANDA

This case is an utter outrage. What does it take to invoke Miranda? The defendant here was
asked, "Do you want an attorney here while you talk to us?" He said, "Yeah." You do? "Uh huh." You sure? "Yes." This gets "clarified" and the Supremes hold that this didn't invoke Miranda.

The defendant later said, "I want to see my attorney cause you're all bullshitting now." The Supremes: not unambiguous. The defendant was just expressing frustation. Next, the defendant said, "I don't want to talk about it." You guessed it, this is just an expression of frustration. Well, I'm pretty frustrated myself. They're going to EXECUTE this guy?! Give me a break.

I WANT MY FUCKING LAWYER. WHAT IS IT YOU DON'T GET?

People v. Williams; 2010 DJ DAR 10023; DJ, 6/30/10; Cal. Supremes

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July 2, 2010

SAN DIEGO DUI DEFENSE: HOW TO AVOID A CALIFORNIA DUI THIS FOURTH OF JULY

I write and re-write this article every season and every year. But time and time again I see friends and people I know who have read it coming to me because they got arrested in San Diego, Orange County, Imperial County, Riverside, San Bernardino or Los Angeles for a DUI.

Okay, think about it... How smart is it to drive a two-ton killing machine through the streets with, say, a .16 blood alcohol level? Not very. In fact, it is abundantly stupid and inherently dangerous for you and everyone in your vicinity. How about.... How smart is it to take a cab instead of driving? How about, since it's the 4th of July and we all know we are going to imbibe, just plan to take a cab from the start? Yes, now we are getting smarter.

Yes, think about it. A GOOD DUI attorney will charge you about $5,000 pre-trial to work up your case. Yes, people, there are defenses to high blood alcohol DUI's. I just got an offer of a wet reckless on a .17 blood alcohol case. I got another "wet" offer on a .17 blood alcohol level case where the client had an accident. I recently sued San Diego's top DUI cop in federal court and won $10,000 in settlement from the City because the cop falsified the basis for his stop.

That's not to say that your case can be won. Many can, many can't. It depends on how competent your lawyer is, how the cop did the investigation, if the machines used were properly calibrated, and what you said at the time of the investigation, amongst other things.

Remember, anyone with a law license from the State of California can take your money and represent you on a DUI. That doesn't mean that they know what they are doing. Would you request advice from a podiatrist if you had cancer? Of course not.

I am the first attorney in San Diego to be voted into the National College for DUI Defense at Harvard by a unanimous vote of the Board of Regents. I see attorneys take cases, take money, and plead the cases right out without doing any work. One such attorney ranks high on the search engines and never, never, never goes to court. Instead, he sends some appearance attorney to go to court and plead out 20 cases per day. He keeps all the money, does little to no work, but has a great marketing director. Don't be fooled.

Now, if you haven't read it before, read it now. And if you have read it before, read it again. This article is chock full of info on what to do if you get stopped for a DUI and arrested.

It's starting now. Police agencies all over San Diego are setting up roadblocks, and putting officers on overtime, to make as many DUI arrests as possible. Hopefully, the tips below will come in handy for you over this 4th of July holiday.

florida-traffic-school-3v.jpg

1. If you drive in San Diego during the 4th of July holiday, and you plan on having a cocktail or two, make sure you know where your license, registration and proof of insurance are. San Diego DUI officers historically write in their San Diego DUI reports (putting only facts that harm you in them) that the suspect "fumbled for his wallet" and couldn't find his registration. They use this to try to show you were impaired. Be prepared.

2. When you get signaled by the San Diego DUI officer to pull over for a DUI assessment, do so immediately and safely. Roll down your window and put your hands on the steering wheel.

3. If a San Diego DUI officer asks you if you know why you are being pulled over, remember you don't have to answer. What a dumb question! He knows why he is pulling you over. He is pulling you over to assess you for drunk driving, and he's using the fact that you might have committed some minor vehicle code violations as an excuse. Don't make any admissions to him. So, you can just ask him, "why?"

4. The next question the San Diego DUI officer is likely to ask is, "Have you had anything to drink tonight." Remember your rights? You are not required to speak to officers. I know, I know, you think, "But if I don't talk to the officer, he will be mad." Let him be. You are not at a social gathering; he is not invited to your next birthday party. So don't worry about how he feels. He is collecting evidence against you. Don't give him any. It is best to say, "Officer, I appreciate what you do for a living, but I don't wish to answer any of your questions." You do NOT have to answer. The less from you he gets, the better for you in the long run. He is gathering evidence. But, you say, maybe he will let me go if he knows I'm being honest with him. NO. Most people who are pulled over and have alcohol on their breath get arrested. It's just a fact of life. Don't give him anything to put in that report that he can use against you later.

5. He may then say, "I'd like you to complete a series of tests for me." Again, let him know that you do not wish to participate in any tests. You are not required to comply. San Diego DUI officers try to give a series of field tests to determine if you are impaired. I have NEVER known any officer to do these as per the standardized protocol. I hold a certification authorized by the United Stated Department of Transportation to administer these tests, and was required to pass a practical and written test to get that certification given by a nationally re-known sergeant with the Idaho State Police. Cops learn how to do these, and then promptly forget them, making up their own "tests." Do not do them. Do NOT let the officer collect more false "evidence" against you. Just reiterate that you do not wish to perform and tests. It's your right.

6. The San Diego DUI investigation officer may then tell you he wants you to take an in field breath, hand held, breath test. Do not take this "test." It is unreliable, and regularly exhibits blood alcohol numbers higher than what you really are. The cop really, really wants you to do this now, because you have made no statements, and you have refused his field "tests." He wants this badly. He NEEDS some evidence. Do not do it. You are NOT required to blow into the little hand held machine.

7. The officer will most likely arrest you, cuff and take you downtown. You will be required to take a breath or blood test. You must choose to take one of these tests, or he will take what is called a "forced blood test" and your driver's license will be suspended for a full year.

A few pointers: If you are still absorbing alcohol, the breath test will read high. It is also an INDIRECT measurement of blood alcohol level. If you take blood, you won't get a result for at least a week. Also, SDPD and Sheriff's don't use the proper amount of sodium fluoride and potassium oxalate in the blood tubes, so you can attack those results later. Personally, I wouldn't let anyone hired by the city or county to draw my blood, after learning all I know about the incompetence of the people drawing the blood, and the lack of sanitation protocol in place. Why risk infection? (See, article on frightening practices in the San Diego crime lab).

If you are arrested, you will be released within 12 hours on your promise to appear. You will received a pink piece of paper called a "DS-367." This document tells you that you, or your lawyer, must call the Department of Motor Vehicle within ten days of the arrest to secure a hearing to determine whether or not the DMV will take your license. Do not miss this deadline or you will be suspended automatically.

So, be careful. Don't drink and drive if you can help it. Drive safely. Don't talk to cops. Be polite, but do not let them gather inculpatory evidence against you. And when you get home call this San Diego DUI Defense lawyer.

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July 1, 2010

CALIFORNIA CRIMINAL DEFENSE: ATTORNEYS-YOU MUST HAVE INVESTIGATORS

NEED ABSOLUTE NEED FOR INVESTIGATORS

Terrific case, even though the lawyer here was found ineffective. Lake County has 12 contract Public Defenders. hey have only one investigator for the entire office. So the investigator was way too busy to work on this trivial transportation of meth case, on which the defendant got over 10 years.

The defense made a California Penal Code sec. 1538.5 motion, claiming that the layout of the intersection at issue made it impossible for the officer to see what he claimed to have seen, that the defendant didn't stop at the stop sign. It turns out that it's an unusual intersection, and if the ofrficer was where he said he was, he couldn't have seen the area of the stop sign.

The California Court of Appeal finds ineffective assistance of counsel (IAC) here, for the failure to use an investigator. There's an excellent discussion about the need for trained, professional investigators. The defense had some photographs taken by the defendant, and even some civilian witnesses, but these were no substitute for a real investigator. I think that we can use this to fully staff investigator units in PD offices, and to get more investigators in offices or contract groups without enough investigators. I even think we can use this to get all sorts of
experts.
Jones v. Superior Court; 2010 DJ DAR 10216; DJ, 7/1/10; C/A 1st, Div. 2

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