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Showing posts from 2014

California Court of Appeal Strikes Down Law Requiring DNA Collection from Anyone Arrested for a Felony

The California First District Court of Appeal last week struck down a state law that required the collection of DNA from anyone arrested on suspicion of committing a felony. The Court concluded that the state Constitution’s ban on unreasonable search and seizure prohibited the DNA collection (by use of a cheek swab). The law was initially approved by voters in 2004 and allows for the collection of DNA upon an arrest - even before criminal charges are filed. The ruling could still be appealed and therefore, it is unclear whether law enforcement will immediately stop the collection of DNA from anyone arrested for a felony, particularly since the Court did not issue an immediate order stopping police.  The court's ruling also recognizes that DNA is fundamentally different and more invasive than the collection of fingerprints.

New Holder Memo on Drug Sentencing and Policies

September 24, 2014 Holder Memo on § 851 Enhancements in Plea Negotiations. Notable lines: "An § 851 enhancement should not be used in plea negotiations for the sole or predominant purpose of inducing a defendant to plead guilty." Holder is making sure his message on drug policies is heard loud & clear before he departs!

The New DOJ Policy for Recording Federal Custodial Interrogations

On July 11, 2014 a new federal policy governing custodial interrogations by federal law enforcement agencies went into effect. That policy, documented in a May 12, 2014 Memo from Deputy Attorney General James M. Cole and supplemented by a videotaped statement by U.S. Attorney Eric Holder (apparently setting the example) established a presumption that the following agencies will electronically record statements made by individuals in their custody in specified circumstances: the Federal Bureau of Investigations (FBI), the Drug Enforcement Administration (DEA), the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), and the United States Marshals Service (USMS).
The new policy “strongly encourages” the use of video recording in circumstances where an individual is in a place of detention following arrest, but prior to an initial appearance before a judicial officer. Interviews in non-custodial settings are excluded from the presumption. The policy describes “places of detention…

An Anonymous Phone Call Can Give Police Reasonable Suspicion to Detain a Person

In United States v. Edwards, 2014 WL 3747130 (9th Cir. July 31, 2014) the United States Court of Appeals for the Ninth Circuit addressed two issues: the first one was whether the stop of Edwards was only an investigatory stop or a de facto arrest and the second was whether there was enough reasonable suspicion for the police to stop and detain Edwards. The facts of the case are as follows: an anonymous call to the Inglewood Police Dept said that there was a young black male shooting at passing cars and entering the “Penny” liquor store. The anonymous 911 caller described the suspect as being 5’7’’ to 5’9’’ and wearing a black jacket and khaki pants. Police arrived at the described location and 75 feet away from the liquor store they saw Edwards who was 5’11’’ wearing a black long-sleeved shirt and grey pants. The police held Edwards at gunpoint and handcuffed him. They conducted a pat search of his person and discovered a .22 caliber handgun. The caller did not want to participate fu…

Guest Blog: Why You Need to Do Your Research Prior to Hiring an Appellate Attorney

Written By: Paul J. Wallin, Senior Partner of Wallin & Klarich, A Law Corporation.
If you have been convicted of a felony crime, you have options available to you. A guilty verdict does not necessarily have to be the final judgment. Many criminal convictions may be reversed or modified on appeal. I cannot stress enough the importance of conducting meticulous research before selecting an attorney to represent you.  Regarding trial lawyers, attorney Julia Jayne handles all of her cases fairly and ethically, she is also a tenacious fighter who will work vigorously to make certain that her clients obtain the justice they desire and deserve. If you were found guilty of felony charges because you were unable to retain a trial attorney of Ms. Jayne’s caliber, you may still have a second chance through an appeal. However, this time you must ensure that you conduct the adequate research necessary to select the right lawyer to handle your appeal. An attorney who is experienced in criminal appe…

Individuals Cannot Get Two Strikes for the Same Criminal Act Even if They are Convicted of Two Strike Felonies

The California Supreme Court recently resolved the issue of whether a single act resulting in two strike-able felony convictions can be used as two strikes. In People v. Vargas, 14 Cal. Daily Op. Serv. 7786, 2014 Daily Journal D.A.R. 9070, Darlene Vargas was sentenced to a third strike under the three strikes law for her burglary conviction in 2008. Vargas had two prior convictions from 1999 for carjacking and robbery which were for the same act; Vargas pled guilty to carjacking and robbery in return for a plea deal of 3 years. For the 2008 burglary conviction the lower court counted the two convictions as two separate strikes for sentencing purposes. Under the three strikes law Vargas would have to serve 25 to life for the third strike. On Appeal, the California Supreme Court concluded that the 1999 conviction should only count for one strike. This meant that Vargas’ sentence should be calculated as a second strike rather than a third which would be consistent with the legislative i…

“Straw purchasers” of firearms must identify themselves as such

The Supreme Court of the United States in Abramski v. U.S., 134 S.Ct. 2259 (2014) held that misrepresenting oneself as an actual firearms purchaser versus a “straw purchaser” was a material misrepresentation. Abramski was convicted of making a false statement that was material to the lawfulness of a firearm sale and making a false statement with respect to information required to be kept in the records of a licensed firearms dealer. The law in part reads that it shall be unlawful to “make any false or fictitious oral or written statement ..., intended or likely to deceive such [dealer] with respect to any fact material to the lawfulness of the sale or other disposition of such firearm.” 18 U.S.C. § 922(a)(6) Abramski purchased a handgun for his uncle who could legally own a firearm. The reason Abramski did this was so he could use his old police I.D. and obtain a law enforcement discount on the handgun. The form Abramski filled out was ATF Form 4473 which is required to be filled ou…

Mandatory sex offender registration requirement cannot be expunged even if the underlying misdemeanor offense is

California Penal Code §1203.4a provides that an individualconvicted of a misdemeanor, who is not granted probation and who is not serving a current sentence for any offense may withdraw his plea of guilty or nolo contendere for the misdemeanor after one year has passed from the imposition of the judgment. During the one year the individual must have served and complied with the sentence of the court. After the imposition of the judgment the individual must also have “lived an honest and upright life and . . . conformed to and obeyed the laws of the land.” Under §1203.4a the individual will be eligible to be released “from all penalties and disabilities resulting from the offense of which he or she has been convicted.”
The California Court of Appeals in People v. Hamdon, 225 Cal.App.4th 1065 (2014) interpreted that “all penalties and disabilities resulting from the offense” did not include California penal code § 290, which requires mandatory sex offender registration. The court stated…

A delusional mental state is not enough for an unreasonable self-defense claim to 1st degree murder

Last week the Supreme Court of California ruled on whether a defendant can bring an “unreasonable self-defense” claim based on his delusional mental state at the time of the murder. In People v. Elmore the Court refused to give the jury an instruction of voluntary manslaughter based on an imperfect self-defense. The California Supreme Court Majority stated that, “California cases reflect the understanding that unreasonable self-defense involves a misperception of objective circumstances, not a reaction produced by mental disturbance alone.” The majority went on to give a definition between misperception and a delusion: “A delusional defendant holds a belief that is divorced from the circumstances. The line between mere misperception and delusion is drawn at the absence of an objective correlate.” In the instant case, the court concluded that the defendant Elmore was acting on a delusion devoid of any correlating facts when he attacked the victim.
The facts of the case were as follows:…

Sentencing Reform, Slowly but Surely: Federal Drug Sentencing Meets New Amendments & Reductions

On April 10th the United States Sentencing Commission voted unanimously to amend and reduce the federal drug sentencing guidelines. The Commission estimates that approximately 70% of federal drug trafficking defendants would qualify for the change, which would result in sentences being reduced by an average of 11 months. The articulated goal of these new guidelines is to reduce the large prison population in the United States while at the same time releasing individuals who pose no safety risk to society. The amendment drew more than 20,000 letters during a public comment period, including letters from members of Congress, judges, advocacy organizations, and individuals. “This modest reduction in drug penalties is an important step toward reducing the problem of prison overcrowding at the federal level in a proportionate and fair manner,” said Judge Patti B. Saris, chair of the Commission. “Reducing the federal prison population has become urgent, with that population almost three tim…