San Francisco & Bay Area Criminal Defense Lawyers

The Ninth Circuit Court of Appeals affirmed a judgment holding that defendants who knew that under federal law that cannabis remained illegal, and could not be prescribed by physicians, were not misled by county sheriff’s deputies who purportedly assured them that their marijuana grow operation was legal under federal law. Dale Shafer, an attorney, and Marion Fry, a physician were a married couple who operated a medical marijuana dispensary in California. The operation began after Fry was diagnosed with a condition for which marijuana was recommended to alleviate side effects of treatment. Shafer began cultivating marijuana for Fry’s use and informed the county sheriff of his operations. Sheriff’s deputies visited the operation many times and inspected the plants, even after the cultivation extended beyond personal use amounts and developed into a business. Shafer and Fry were eventually indicted federally for conspiracy to manufacture and distribute marijuana plants. They moved to ...

The Ninth Circuit affirmed a district court judgment which included traffic violation citations as “arrests” when calculating the defendant’s criminal history under U.S.S.G. § 4A1.2(a)(2). The Court agreed with the Seventh Circuit in its application of United States v. Morgan , which treated Leal-Felix’s traffic violations as arrests with regard to the Sentencing Guidelines. United States v. Morgan, 354, F .3d 621 (7th Cir. 2003). In February 2005 Israel Leal-Felix plead guilty to aggravated felony of possessing a firearm by a convicted felon and was deported from the United States to Mexico. In March of 2009, Leal-Felix reentered the United States without applying for readmission after his deportation. Under a plea agreement, Leal-Felix pled guilty to a single-count of violating 8 U.S.C. § 1326(a) (illegal re-entry), for which the potential prison term is 20 years. The plea agreement provided that Leal-Felix would be sentenced to at the low end of the Sentencing Guidelines range, d...

The Ninth Circuit Court affirmed a district court judgment of conviction on Monday, October 25th. The Court held that confessions obtained during and after a voluntary polygraph examination were not illegal as a result of unlawful detention or failure to promptly present the defendant to a magistrate. Rita Disanjh's body was found on the Lummi Indian Reservation in August of 1987. The pathologist was not able to rule out sexual assault but did determine that the victim had been killed by manual strangulation. In 2006, Athena Swope, daughter of Henry Redlightning's deceased partner, Patricia Dubbs, told police that Redlightning had been involved in the murder of a woman and that she had learned of this from her mother in 2003, to whom Redlightning had confessed. In October 2007 Redlightning was interviewed by FBI agents and agreed to answer questions in a polygraph examination. During the polygraph examination Redlightning was asked "Did you sexually assault and kill Rita?...

The California Court of Appeal determined on Tuesday, October 12th that a great bodily injury enhancement does not apply to a hit and run violation unless the injury was caused or aggravated by the failure to stop and give aid. The appellant, Mr. Valdez, hit a pedestrian with his car and drove away, injuring the victim. Months later, the appellant turned himself in to the police. Valdez was convicted of hit and run. The jury also found true a great bodily injury enhancement. The Court of Appeal considered whether a great bodily injury enhancement can be found true in conjunction with a hit and run when the injuries suffered by the victim were not aggravated by the defendant's failure to stop and give aid. The Court held that it could not. Section 12022.7 of the Penal Code requires great bodily injury "in the commission of a felony or attempted felony" and the Vehicle Code section 20001 makes fleeing after an accident criminal. The injuries sustained by the victim were not...

A District Court judgment was upheld by the Ninth Circuit Court on Monday, October 18th. The Court held that the admission of marijuana evidence, found in a mailed package delayed twenty-two hours as a result of the remoteness of the site from canine investigation, did not violate the defendant's Fourth Amendment rights. Robert Lozano of Barrow, Alaska, asked a post office manager whether mail was screened for drugs. Suspicious, the manager notified the postal inspector of this inquiry, who authorized a "mail watch" on Lozano's post office box. After the arrival of a large and heavily taped package addressed to "Bill Corner" at Lozano's box, the manager notified the inspector, who requested it be sent to him in Anchorage. The package was mailed on one of two daily flights from Barrow to Anchorage and was alerted by a drug dog. After obtaining a warrant officers found eleven pounds of marijuana inside the package. Lozano picked up the package under a cont...

The Ninth Circuit affirmed a district court judgment that housing pretrial detainees in a jail where temperatures exceeded 85 ° F amounted to cruel and unusual punishment under the Eighth Amendment as to detainees who were taking psychotropic medications that made high temperatures a significant health risk. In 1977, Fred Graves, Isaac Popoca, and others, (collectively, Graves), indigent prisoners in Maricopa County jails in Arizona, sued the county sheriff and the county supervisors (collectively, the sheriff) on behalf of all of the detainees in the county jails. Graves alleged that the conditions of his confinement violated his constitutional rights and that, among other things, the temperature was dangerously high and there was inadequate food. From 1977 through 1995, the district court adopted the terms of an agreement that addressed each of the detainee's claims and later amended it to reflect changes in the prison population, jail construction, advances in medical treatment...

The Fourth Appellate District Court affirmed in part and reversed in part a judgment and remanded. The court held that a firearm sentence enhancement was improperly imposed on a defendant who could not have been vicariously liable for the shooting death of a fellow gang member. This is because the gang member who was shot and killed could not have been a principal or an accomplice to his own death. Jose Camino and a fellow gang member, Rolando Palacios, were involved in a gun fight with a rival gang. Palacios, the lone shooter in Camino's group and the only one who was armed, was shot and killed by a bullet of unknown origin. Police interviewed Camino twice at the police station. Prior to the first interview Camino was not read his rights under Miranda v. Arizona (1996) 384 U.S. 436. In this interview, Camino revealed that he, Palacios, and a third individual had driven into the alley in pursuit of rival gang members. Camino stated that Palacios had stepped out of the car and shot...