Recent Blog Posts in 2010

Do you really have the RIGHT to remain silent or do you have to SAY it?

Most of us have grown up knowing about our Miranda rights from the Miranda Case, which addresses our coveted right to remain silent.  You've seen it a million times in television shows and movies. An arresting officer starts telling the arrested party that they have the right to remain silent and that anything they say can and will be held against them in a court of law. Seems pretty clear, right?

Not so fast.

In a recent United States Supreme Court decision (Berghis, Warden v. Thompkins), Mr. Thompkins was silent while in custody for three hours, and then only said "yes" to praying to God to forgive him for the shooting in question.  Mr. Thompkins challenged that statement as admissible in court to be used against him by the prosecution, the reason being that he had invoked his 5^th Amendment right, and that the statement he made was involuntary. 

An individual must invoke his 5^th Amendment right "unambiguously," according to this newest decision from the United States Supreme Court.  If the request to invoke an individual's 5^th Amendment rights is "ambiguous or equivocal" or give no statement at all, the police are not required to end the interrogation.  And in this case, they did not.

Therefore, what is there to be gleaned from this opinion?

You have a right to remain silent, and if you want to keep that right you must SAY SO!

I have represented clients charged with posession for sale, cultivation and transportation of marijuana throughout my career, and there are a lot of new laws governing the possession of marijuana in both Los Angeles and Ventura counties.

We advise many who are seeking the protection of the Compassionate Use Act under California's Proposition 215, which is a law that makes it legal for patients and their designated primary caregivers to possess and cultivate marijuana for the patients' personal medical use, given the recommendation or approval of a California-licensed physician.

Federal and State laws differ on the legal nature of marijuana, and so this leaves a lot of confusion with the general public. Here's the text of Proposition 215 for your reference:

Compassionate Use Act of 1996

Health and Safety Code Section 11362.5

  Sec. (1) a-b The people of the State of California hereby find and declare that the purposes of the Compassionate Use Act of 1996 are as follows:
      (A) To ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where the medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.
     (B) To ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction.
      (C) To encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana.
      (2) Nothing in this Act shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others, nor to condone the diversion of marijuana for nonmedical purposes.
      (c) Notwithstanding any other provision of law, no physician in this state shall be punished, or denied any rights or privilege, for having recommended marijuana to a patient for medical purposes.
      (d) Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to the patient's primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.
      (e) For the purposes of this section, "primary caregiver" means the individual designated by the person exempted under this act who has consistently assumed responsibility for the housing, health, or safety of that person.
      Sec. 2. If any provision of this measure or the application thereof to any person or circumstance is held invalid, that invalidity shall not affect other provisions or applications of the measure which can be given effect without the invalid provision or application, and to this end the provisions of this measure are severable.

Here are some recent articles that were published in the Ventura County Star regarding both Camarillo and Fillmore's ban of Marijuana Dispensaries in the area:

http://www.vcstar.com/news/2010/mar/25/camarillo-passes-new-ban-on-marijuana/

http://www.vcstar.com/news/2010/apr/14/fillmore-adopts-45-day-moratorium-on-pot/

So, you pay the bail bondsman, your attorney, and now an investigator?

It is crucial and in most, if not in all of this firm's cases, that we use the services of an investigator.  It is important that you know why we use the services of this valuable resource to assist you in getting the best result.

When the attorney initially gathers all of the arrest reports, tapes, and other evidence in the case, it is primarily written in the first person of law enforcement, the witness for the people who are prosecuting you.  It is understandable that they have an interest in your prosecution and their job is to enforce the laws, not to fight zealously for your defense.

Therefore, it is logical that you would want a person who has the experience of a law enforcement officer to validate, or test the veracity (or truthfulness) of the police reports, and of the witnesses that are giving statements to the police.  Frequently, if asked in a different way, witnesses will give a completely different answer to the same question.  Sometimes witnesses, upon reflection, will say that they overreacted or embellished. 

It is also important to have an investigator get a statement from a witness who says that law enforcement has told them not to speak with the defense, if that is the case.  Or, have the investigator inquire as to why a witness prefers not to speak with them.  Why a witness will not speak with the defense is almost as important as the witnesses that will speak freely.

In my opinion, it is the talented investigator who can decipher who is telling the truth, who is hiding more information, who has those bad things in their closets, and ultimately who will be one who will be valuable for your best defense.  Keep in mind that each investigator has his or her strengths and weaknesses. Some are organized and are perfect for a certain kind of case. Others are information "diggers" and can get information where no one else can get it. Some investigators are great writers and reporters (giving testimony). Ideally, your investigator has a little of each in him or her.

The real value of an investigator is if you have secured a statement from a witness, and later on the stand they testify differently.  What is an attorney to do?  Your investigator can testify to the original statements and therefore provide you with your best possible defense.

No matter what your situation, it is always important to ask your attorney if they will be using the assistance of an investigator, a valuable and crucial member of your defense team.

The News on the NEW LAWS FOR 2010—WHAT YOU SHOULD KNOW

Each year, there are new laws that increase penalties for certain crimes or create new crimes entirely that you should know.  This is not an exhaustive list, but certainly a brief list of those crimes commonly charged and defended by this office.

In brief, the most important laws are for persons already incarcerated in the county jail system and prison system. Sentence reduction credits (“time credits”) are increased for most Inmates of prisons and of county jails! Low risk, less serious offenders can no longer be sent back to prison for parole violations.

Good Time/Work Time credits increased:  The time credits for most, but certainly not all, county jail inmates are increased.

Formerly, for every four days served in county jail, most inmates were deemed to have served six.

Now, for every two days served, most inmates are deemed to have served four. This is an increase, for every 4 days served, from 6 days deemed, up to 8 days.

There are always exceptions;

(1) those convicted of violent felonies, who are still limited to the 15% reduction

(2) those required to register as sex offenders under Penal Code section 290

(3) those convicted of serious felonies, and

(4) those with prior serious felonies.

 All of the above except 1, require four days service to get six days of credit.

Up to 6 weeks of additional credit can now be earned by most prisoners for successful completion of certain prison programs.

Except…

These credits cannot be earned by persons in for (1) serious felonies, (2)

violent felonies, (3) offenses requiring registration as sex offenders under Pen. C.

§290, (4) parole violations, (5) repeated recidivist offenses as defined, or (6)

currently in segregation for misconduct.

Penal Code 1008—“New Reentry Program”- For First Time Non-Violent Drug Offenders, consult your local Court for creation this program.

Domestic Violence Crimes-New requirements- From now on, there is no citation only (in other words, mandatory booking) in most domestic violence misdemeanors, including Penal Code section 273.5, 273.6 , if the detained person made threats to kill or harm, has engaged in violence against, or has gone to the residence or workplace of, the protected party violating a restraining order .  Additionally, the District Attorney in domestic violence cases may ask for a conditional exam of the complaining witness or victim.  This may occur in situations where there is evidence of threats or violence not to testify (“dissuasion”).

Probation and Parole-- 

1.      Probation- If convicted of a crime in one jurisdiction, yet you reside in another, it is going to be much easier to transfer your probation to where you reside.

2.      Parole- In brief, those with parole violations that are non violent are unlikely to return to prison.

Brass Knuckles- Now expanded to “composite knuckles”.

Nitrous Oxide- It is a misdemeanor to sell or give away a [container] exclusively containing nitrous oxide, or exclusively containing a chemical compound mixed with nitrous oxide, to a person under 18 years of age.  It is a defense if you honestly reasonably believed that the person was at least 18 years of age.

Computer Hacking- Fines are being increased.

This is by no means an exhaustive list, but it is a short list of the most common crimes that may be of interest. If you have any questions about any of these new laws and how they affect can affect your case, contact our office.