Monday, December 8, 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.

Thursday, October 2, 2014

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!

Friday, September 26, 2014

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” fairly broadly, but excludes the necessity to record while a person is waiting for transportation, or is en route, to a place of detention.

Each agency is directed to establish its own policies governing the placement, maintenance and upkeep of such equipment, as well as policies for preservation and transfer of recorded content. Notably, this new standard replaces many of these agencies’ current practices, in which agents interview suspects without recording them, take handwritten notes, and then produce a formal report “summarizing” the conversation. Clearly, the Department of Justice has recognized the flaws in criminal prosecutions and allegations of police misconduct which lack recorded interrogations.

"Creating an electronic record will ensure that we have an objective account of key investigations and interactions with people who are held in federal custody," Holder said in a video message announcing the change. "It will allow us to document that detained individuals are afforded their constitutionally-protected rights." He added that it would provide federal law enforcement officials with a "backstop" so that "they have clear and indisputable records of important statements and confessions made by individuals who have been detained."

The Cole memo also notes that the recording may be overt or covert and to the extent the suspect does not wish to be recorded, then a recording need not take place (though the refusal must be documented). 

Other exceptions include a “Public Safety and National Security Exception” wherein there is no recording presumption when the questioning is done for the purpose of gathering public safety information or when it is undertaken to gather national security-related intelligence.  

Finally, the directive leaves open an exception for non-recording in circumstances where it is not reasonably practical or outside of the United States.

While this policy applies exclusively to the federal agencies noted herein, 21 states and the District of Columbia require recording statewide of custodial questioning in a variety of criminal investigations, as depicted in the table below:

Court ruling
All crimes
Court rule
All crimes
Juveniles - homicide
Specified felonies
Crimes of violence
Dept. policies
Serious crimes
Specified felonies
Court rule
Serious Crimes
Specified felonies
Specified felonies
Court ruling
All crimes
Specified felonies
All crimes
Specified felonies
New Jersey
Court rule
All crimes
New Mexico
N. Carolina
Specified felonies
Juveniles – all crimes
Specified felonies
Rhode Island
Police Chiefs Assn
Capital offense crimes
Homicides, sexual assaults
Juveniles- all crimes

Hopefully, this reform of federal agency custodial interrogations will inspire other states and state agencies to adopt similar policies and laws. Justice is better served by all with greater transparency.

Friday, August 15, 2014

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 further in the investigation and wished to stay anonymous. Edwards pled guilty (a conditional plea, which allowed him to appeal) to a felon inpossession of a firearm. Edwards appealed his guilty plea on the grounds that the police action amounted to a de facto arrest for which they had no probable cause and that the anonymous call did not give the police enough reasonable suspicion to detain him. Edwards disputed that the anonymous 911 call provided the officers with sufficient information to give them reasonable suspicion to support the investigatory stop in the first place.

Arrest or Detention at Time of Pat Search
A de facto arrest is where a detention turns into an arrest based on law enforcement’s actions that are more intrusive than necessary for an investigative stop. The court used the “totality of the circumstances” test to determine that Edwards’ detention at the time of the pat search did not amount to a de facto arrest. The Court previously “permitted the use of intrusive means to effect a stop where the police have information that the suspect is currently armed or the stop closely follows a violent crime. Under such circumstances, holding a suspect at gunpoint, requiring him to go to his knees or lie down on the ground, and/or handcuffing him will not amount to an arrest." FN1

Reasonable Suspicion for a Detention
The United States Supreme Court previously held that an anonymous tip must “exhibit sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop." FN2. The Supreme Court stated that an anonymous tip has sufficient indicia of reliability when: (FN3)
(1) The caller claimed eyewitness knowledge of the alleged dangerous activity, lending “significant support to the tip's reliability”
(2) The caller made a statement about an event “soon after perceiving that event,” which is “especially trustworthy,”
(3) The caller used 911, which “has some features that allow for identifying and tracing callers, and thus provide some safeguards against making false reports with immunity,
(4) The caller created reasonable suspicion of an ongoing and dangerous crime rather than “an isolated episode of past recklessness.”

Based on this analysis, Ninth Circuit determined the anonymous call in Edwards’ case passed the four-part test. Therefore, the Court concluded that the police did have enough reasonable suspicion to stop and detain Mr. Edwards and affirmed his conviction, holding that “the officers properly conducted an investigatory stop and had reasonable suspicion to do so.” It will be interesting to see how non-emergency situation cases play out in light of this ruling.

For assistance with motions to suppress, contact Jayne Law Group.

1. United States v. Miles, 247 F.3d 1009, 1012 (9th Cir.2001)
 2. Alabama v. White, 496 U.S. 325, 326–27, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990).
 3. Navarette v. California, ––– U.S. ––––, 134 S.Ct. 1683, 188 L.Ed.2d 680 (2014)

Thursday, July 31, 2014

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 appeals will put forth a strong argument that mistakes or misconduct occurred at your trial. If he or she is successful in doing so, you may be able to have your guilty conviction overturned and receive a new trial.  
In some cases, you may not even face retrial if the District Attorney’s office does not wish to prosecute the matter again.
1.      Consequences of a Felony Conviction
A felony conviction will remain on your permanent record unless it is successfully challenged or expunged. You could face difficulty in the future when applying for a job, state licensure, public benefits or a residential lease. You also lose your right to own a firearm. The following are things you must consider if you want to successfully appeal your criminal conviction:
2.      You have a limited amount of time to file your notice of appeal.
A defendant interested in appealing a felony conviction has only 60 days from the time he or she was sentenced to timely file a notice of appeal.  Exceptions to this timetable are rarely permitted. Because your window of opportunity is narrow, you should not take any chances by trying to accomplish this on your own.
Additionally, almost every court jurisdiction has its own set of rules, called the “local rules.” These rules govern the procedures that must be followed. However, the rules may vary depending on the district within the Court of Appeal. There are six districts in California, some of which are divided into even smaller divisions.
An attorney who has extensive experience with handling appeals will make certain to follow the local rules and can illuminate any errors that may have occurred during your trial.
3.       Your Attorney Must Possess Strong Oral and Written Persuasive Skills
Remember that an appeal is a review of your trial, not a new trial. Your attorney cannot introduce new evidence on appeal. He or she must be able to convince a three-judge panel that either the evidence used against you at trial was insufficient to sustain a guilty verdict, or that legal errors were committed that led to an improper ruling, conviction or sentence.
Your chances of winning your appeal increase if you hire an attorney who can persuasively argue how you would have benefitted from a different outcome at your trial if these mistakes had not been made.
If you are dissatisfied with the result in your case, you need a lawyer who is familiar with appellate level review, who understands where errors can occur at trial, and one who knows how to best challenge those errors at the appellate level.
Trial lawyers are required to persuade juries made up of ordinary citizens, which often involves making emotionally-driven arguments. An appellate lawyer isn’t permitted to try your case again in front of a jury.
If you have been Convicted of a Felony Crime, Don’t Wait Until it is Too Late
A felony conviction, albeit devastating, is not the end of the road. If you or a loved one is convicted of a felony crime, you must act quickly in determining the best option for that individual.  If you conduct thorough research, the chances of you hiring an effective attorney and successfully appealing your criminal conviction increase greatly.

Daniel E. Hall, J.D., Ed.D.: Criminal Law and Procedure, Sixth Edition
Deborah E. Bouchoux, Georgetown University: Legal Research and Writing, Sixth Edition
Wallin & Klarich, A Law Corporation: “Common Grounds for Appeals in California”;

Wednesday, July 23, 2014

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 intent for the three strikes law.

Notably, during sentencing, the trial court has the discretion to dismiss a prior strike-able felony conviction in the furtherance of justice; however there must be “extraordinary circumstances” to exercise that discretion. The California Supreme Court defined Vargas as an example of an extraordinary circumstance in which the trial court should have dismissed the prior strike. The court used the baseball analogy behind the three strikes law to explain their reasoning: you cannot get two strikes for swinging the bat once. Although it is possible to get two strikes during the commission of a crime with multiple criminal acts, such as a robbery where the suspect commits a further crime (for example pistol-whipping a victim which could be charged as an assault with a deadly weapon), the Court found that this case was not one of those circumstances. 

Wednesday, July 2, 2014

“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 out by the purchaser of a firearm at the time of the sale. Question 11.a asked whether Abramski was the “actual transferee/buyer” of the firearm. Abramski answered in the affirmative even though the form warned that straw purchasers did not qualify and must identify themselves as such. A straw purchaser is someone who buys a firearm on behalf of another person.
The court held that Ambramski’s misrepresentation was material because the ATF Form was required to be kept by the firearms dealer for future use by law enforcement agencies. The court stated that a straw purchase of a firearm for a person legally allowed to own one has no bearing on the violation. This is because the purpose of the ATF form is not to just prevent prohibited persons from purchasing firearms but to also determine who the current owner of a firearm is. According to the Court, the current owner of the firearm is important information for law enforcement because it helps determine whether someone is a suspect in a crime or whether someone has a firearm in their possession and allowing for straw purchasers would contradict this purpose and defeat the goal of ATF form 4473.

Tuesday, June 24, 2014

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

California Penal Code §1203.4a provides that an individual convicted 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 that expungement of the misdemeanor offense under §1203.4a does not make the individual’s previous convictions a legal nullity. Therefore certain regulatory schemes which are not punishments are excepted from being expunged, such as licensing requirements for attorneys and doctors. The court saw the goal of mandatory sex offender registration as regulation designed for protecting the public and any retributive effects that resulted from it as being insufficient to justify the regulation being treated as a punishment.

The court pointed to California Penal Code §290.5 as the correct means for obtaining relief from mandatory sexual offender registration status. Section 290.5 provides that in order to get relief from mandatory sex offender registration an individual needs a certificate of rehabilitation, which can be obtained after having the underlying criminal offense expunged. Therefore even though Hamdon’s misdemeanor sexual battery conviction was expunged, his mandatory sex offender registration will not be dismissed until he is able to satisfy the requirements set forth in §290.5 for certificate of rehabilitation.

Wednesday, June 11, 2014

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: Defendant Elmore was mentally ill and diagnosed with schizophrenia; on several previous occasions the defendant had been diagnosed as psychotic and hospitalized. The defendant was living in a rehabilitation center and on the day of the murder. The defendant was visiting family when he began to act “fidgety and anxious.” The defendant ran away from his family members and was seen attacking the victim, Ella Suggs, whom he stabbed with a sharpened paint brush handle resulting in her death. The defendant grabbed the victim’s necklace before running away. At trial the defendant gave confusing testimony about the event and about what he remembered.  He claimed part of the events of that day he had blacked out and did not remember who --  but knew someone --  threatened him. At trial the defendant wanted an instruction to be given to the jury of unreasonable self defense based on his delusions. The trial court denied the defendant’s motion. At sentencing, he withdrew his plea of not guilty by reason of insanity and was sentenced to 25 years to life for first degree murder. The Supreme Court ruled that the defendant was not entitled to the instruction and the conviction of 1st degree murder must stand. The court reasoned that the defense did not present any evidence that Elmore acted on some misperception of fact in defending himself from a threat, but rather, was delusional about the threat.  

Wednesday, May 28, 2014

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 times where it was in 1991.” The new sentencing guidelines if not blocked by Congress will go into effect on November 1, 2014.

Many have criticized the mandatory minimum sentencing guidelines as being excessive and not serving their purpose of deterrence. In 2013 Attorney General Eric Holder endorsed the sentencing commission’s decision to reduce the sentences for less serious drug offenses. He stated in March 2014 before the Sentencing Commission that “certain types of cases result in too many Americans going to prison for too long, and at times for no truly good public safety reason,” referring to non-violent drug offenses. He also pointed to the statistic that “although the United States comprises just five percent of the world’s population, we incarcerate almost a quarter of the world’s prisoners.” Mr. Holder also testified that the “focused reliance on incarceration is not just financially unsustainable – it comes with human and moral costs that are impossible to calculate.” ( ).

This new development comes on the heels of the Holder Memo referenced in our October 2013 email blast, in which the Attorney General released a memo to federal prosecutors not to press judges for the most severe mandatory minimum sentences for low level drug traffickers.

In the Northern District of California, prosecutors and probation officers seem to be taking the position that the anticipated-amended guidelines apply to present cases. Accordingly, defendants being presently sentenced are being afforded the two-level reduction in the sentencing guideline table.

Clemency Project

In addition to amendments to the Sentencing Guidelines, the Obama administration has been advocating for a change in the mandatory minimum sentencing standards. One of the avenues open to the executive branch is the Clemency process: the executive branch’s right to grant forgiveness to individuals who have federal convictions. In April 2014, Deputy Attorney General James Cole announced a new set of criteria the Justice Department and the White House will use when considering clemency petitions from federal prisoner who, if sentenced today under the current sentencing laws and policies, would have likely received a substantially lower sentence. This initiative is expected to trigger tens of thousands of petitions, and the government could be processing applications for the next three years, according to lawyers and civil rights activists.

The Clemency Project 2014, which is a working group composed of Federal Defenders, the ACLU, Families Against Mandatory Minimums, the ABA, National Association of Criminal Defense Lawyers, and individual attorneys, are now assisting prisoners with clemency petitions. NACDL President Jerry Cox said, "Clemency Project 2014 marks the beginning of the end of the age of mass incarceration. We must seize this historic opportunity to start the process of remedying decades of cruel and unnecessarily harsh sentencing policies.  I call upon the nation’s lawyers, especially the criminal defense bar, to rise to this challenge in an unprecedented effort to restore hope and the prospect of an early return to freedom for the countless deserving individuals who are languishing in federal custody." To be eligible for the Clemency Project, individuals must meet the guidelines set out by the Deputy Attorney General. The individual asking for clemency must be:

1.    serving a federal sentence;
2.    serving a sentence that, if imposed today, would be substantially shorter;
3.    have a non-violent history with no significant ties to organized crime, gangs or cartels;
4.    have served at least 10 years;
5.    have no significant prior convictions;
6.    and have demonstrated good conduct.  

A comprehensive training program for volunteers, to be conducted in June 2014, is open to those wishing to volunteer to process the petitions, free of charge. Again, thousands of requests are anticipated.

Smarter Sentencing Act of 2014

On January 30, 2014, the Smarter Sentencing Act of 2014 passed the U.S. Senate Judiciary Committee. The Act would reduce the mandatory minimum sentences for drug offenders by half; it would extend the “safety valve” to more federal drug offenders as well as make the Fair Sentencing Act of 2010 retroactive (which. reduced the disparity between the sentencing guidelines for crack and powder cocaine offenses). If made law, the Act would expand the ability of judges to use their own discretion when sentencing defendants, thus allowing further evaluations into the unique facts and circumstances of each defendant.

With respect to further progress on the bill, there is opposition by various lobbying groups, federal prosecutors, and politicians. Individuals are being urged to write to their senators and members of congress, for passage of this Act through Congress.

Friday, January 3, 2014