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California AG Takes Active Role in Reducing Recidivism

A panel consisting of 435 law enforcement and reform experts released their recommendations on March 16, 2011, after reviewing 11 problem areas of crime ranging from gangs, guns, enforcement of environment laws, school truancy, mortgage fraud, consumer protection, civil rights and victims’ rights at the request of California State Attorney General Kamala Harris. The panel has made recommendations to Attorney General Harris that she take a more active role in the rehabilitation of parolees to keep them from returning to prison. The panel believes that reducing recidivism, which was part of Attorney General Harris’ campaign promises last year, should be one of the primary functions of the California State Attorney General. The Attorney General has not indicated whether or not she will be acting upon the recommendations.

According to statistics, seven out of 10 parolees commit repeat offenses and return to prison within three years. While California spends almost double the national average on inmate incarceration costs and close to a third more than the national average on the supervision of parolees, equating to a dime out of every dollar in the state’s general fund, the expenditures are not substantially reducing recidivism. The panel concluded that it would be more cost effective for the State of California to concentrate its efforts on providing education and training for ex-convicts and by helping them find housing and jobs, which would produce much better long term results. Right now, California does not have unified rehabilitation programs among its agencies for parolees. To address this issue, the panel recommended that Attorney General Harris follow the model that several other states have by convening a state level “re-entry council”, whose function would be to coordinate services among various state agencies.

The Department of Corrections and Rehabilitation’s Cost Cutting Models

While the panel’s recommendations are a good start, budget cuts in California are making it more difficult to fund current programs. The California Department of Corrections and Rehabilitation (CDCR) cost containing rehabilitation model is now using strategies such as shortening the length of in prison substance abuse treatment, using more volunteers, using long term offenders as counselors and literacy tutors and finding alternative ways to deliver educational programs. They are also using a risk assessment tool, COMPAS, to review a convict’s criminal history and other characteristics, including age, to determine their re-offend probability in order to assign them to the best program to mitigate repeat offenses.  The CDCR’s policies of  using the latest science and other proven techniques has helped reduce recidivism by reducing prison overcrowding and increasing the chances that offenders will be succeed after their return to society and is also saving California taxpayers money.

Other CDCR Successful Programs

The CDCR was instrumental in spearheading legislation which provided the following programs:
·    Increase in inmate educational and vocational participation.
·    COMPAS offender risk assessment tool.
·    Prison to prison employment program which helps offenders find employment by matching prison jobs to community jobs, providing documentation necessary to secure employment prior to their release from prison such as a social security card or birth certificate, providing resumes, assisting with license applications and trade union memberships, and arranging for partnerships with the 49 Local Workforce Investment Boards (LWIB) in the State to work with CDCR parolees to help them find employment.
·    Addition of 2,000 in prison substance abuse slots.
·    Addition of over 300 parolee mental health slots.
·    At least 2,000 re-entry beds.

In order to further improve results, the California legislature will also need to get involved by enacting new laws supporting more rehabilitation programs such as those recommended by the panel so that Governor Brown can sign them into law.

If you are facing a parole hearing, you should consult with a California criminal defense attorney who understands how the Board of Parole Hearings work and can present a written and verbal presentation on your behalf to convince the Board that you are rehabilitated and ready to return to society as a productive member of the community. The attorney can also refer you to community programs that will help you find housing and employment.

The Battle Over Legalization of Marijuana Continues

The legalization of marijuana continues to be a controversial issue as it makes its way back into legislation in two states, Washington and Massachusetts. Legislators in both the Washington State House and Massachusetts State House reintroduced bills recently to legalize marijuana use for persons 21 years of age and over with regulation and taxation of the marijuana commerce. In Washington State, Democrat Mary Lou Dickerson, State Representative and Chairman of the Human Services Committee, introduced Bill 1550 on January 25, 2011, which proposes to regulate the sale of marijuana in Washington State through state liquor stores with the licensing of cannabis growers regulated by the Liquor Board. Farmers would have to obtain a license from the Liquor Board at the cost of $5,000 per year. It would be considered a gross misdemeanor to sell cannabis without a license or to sell or distribute it to a juvenile under 21 years of age. The intention of Washington State legislatures is to increase state revenues while breaking up crime-syndicate drug cartels so that revenues can be used towards health services throughout the state due to budget cuts and shortages. The Washington bill has 13 co-sponsors and has now been referred to the Committee on Public Safety and Emergency Preparedness, which is the same Committee where the bill failed to pass last year. The State approved the legalization of medical marijuana in 1998, and in 2009, the Seattle City Council voted unanimously to support decriminalization.

Massachusetts House Representative Ellen Story (Democrat from Amherst) filed House Docket Number 1091 (H1091), An Act to Regulate and Tax the Cannabis Industry on January 24, 2011. The bill is currently awaiting a bill number. The proposed bill would eliminate all criminal and civil penalties in the State of Massachusetts for persons over 21 years of age who possess marijuana for personal use or share it with other adults. The bill would also provide for the regulation, licensing and taxing of commercial cultivation, possession and distribution of marijuana. The Massachusetts bill also failed to pass last year.

Meanwhile, the Montana Majority Republican House voted recently to overturn their Medical Marijuana Ballot Initiative which was passed in 2004 legalizing the use of medical marijuana. The bill, HB 161, is currently awaiting a vote in the Montana State Senate. The Montana House Speaker Mike Milburn (Republican from Cascade), who sponsored the bill, argues that the Marijuana Ballot Initiative has attracted criminal elements. Democrats argued that the initiative has failed because of the lack of regulation of medical marijuana by the legislature. Others Representatives such as Diane Sans (a Democrat from Missoula) argued that the State has already tried making medical marijuana illegal and that failed to work and that there is a value to using marijuana for medicinal purposes. It may not be so easy to get the repeal approved in the Montana Senate where the consensus is there needs to be reform, but that re-criminalizing it would be turning back the clock. There are several bills regarding taxing or regulating medical marijuana that have been introduced as well.

Right now there are 15 states and the District of Columbia where medical marijuana use and possession is legal including:

Alaska
Arizona
California
Colorado
DC
Hawaii
Maine
Michigan
Montana
Nevada
New Jersey
New Mexico
Oregon
Rhode Island
Vermont
Washington

California SB 420 was approved in 2004 which sets forth guidelines on the use, possession and growing of medical marijuana. A ballot proposition was approved by voters in 1996 approving medical marijuana use for AIDS, anorexia, arthritis, cancer, chronic pain, glaucoma, migraines, multiple sclerosis, seizures, nausea and other chronic medical conditions. State penalties for possession, use and growing for persons with medical marijuana prescriptions were also decriminalized. California Proposition 19 was recently defeated which would have legalized marijuana use and allowed the State to regulate and tax the commercial growing of marijuana.

Assault & Battery Charges are Taken Serious in California

Assault and battery charges are taken serious in California. California Penal Code 240 defines assault as “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another. A battery is defined under California Penal Code 242 as “any willful and unlawful use of force or violence upon the person of another”. Incidences of assault and battery typically occur during a physical fight or a verbal argument that turns into a physical altercation. Assault can also be construed even if you physically throw an object at someone regardless if they are injured or not, and you could still be arrested in California. A simple assault misdemeanor carries penalties ranging from six months to a year in the county jail and a fine of $1,000 to $2,000. A simple battery can be charged as a misdemeanor or a felony and carries penalties ranging from six months in the county jail to three years in state prison and fines of $2,000 up to $10,000.

Assault with a Deadly Weapon Other Than a Firearm (Penal Code 245)

An assault with a deadly weapon also known as aggravated assault upon another person other than with a firearm with the intent to produce great bodily harm is a felony in California with penalties of up to four years in state prison and fines up to $10,000. A deadly weapon can be any object that is not part of your body such as a knife, a pen, rocks or even your car.

Assault with a Firearm (Penal Code 244)

Only possession of a firearm during the assault is enough cause to increase the penalties for this crime to a $10,000 fine and a 4-year prison sentence.

Case Example:

British actor and comedian Russell Brand met with Los Angeles prosecutors on Wednesday November 17, 2010 regarding his arrest pertaining to an altercation with a photographer at LAX Airport in September 2010. Brand and his wife, singer Katy Perry, were entering Delta Airlines terminal when they were swarmed by paparazzi.  Airport video cameras caught Brand swatting at the photographer and hitting his camera. He was facing the possibility of misdemeanor simple battery charges. The City said a prosecutor will also meet with the photographer this week. However, a spokesperson for the City said it was unlikely that they would be filing charges against Brand. Brand was unknown in the United States until 2008 when he hosted the MTV Video Music Awards. He has become famous here since his recent marriage to Katy Perry. He has also starred in the film Get Him to the Greek”. Perry is known for her two hit songs “I Kissed a Girl” and “California Girls”.
This is not the first time that celebrities have gotten into skirmishes at LAX with the paparazzi.  City prosecutors charged Kanye West with misdemeanor battery, vandalism and grand theft for breaking a photographer’s flash during an incident at the airport in September 2008. The case was later dismissed after the rapper settled a civil suit and agreed to attend anger management classes.Mike Tyson was also charged in November 2009 for allegedly hitting a photographer at LAX. Prosecutors declined to charge the former boxer because they said they found insufficient evidence.

If you are arrested for assault and battery charges in California, you should hire a California criminal defense attorney to defend you. The attorney may be able to get the charges reduced or dismissed to menacing, mistaken identity, self-defense, defense of property or defense of others, no credible threat, false accusations, the victim consented to the assault, or there may be insufficient evidence to charge you.

Always Appoint a Qualified California Criminal Attorney for Your Legal Needs

An arrest for domestic abuse in California is a serious matter. It could affect your chances of obtaining employment, prevent you from purchasing a fire arm and you could face jail time, fines, attendance of a batter’s counseling program and/or a drug or alcohol program, paying restitution payments and probation depending on whether you are charged with a misdemeanor or a felony. Under California Penal Code Statutes 13700, an act of domestic abuse is considered abusing someone you have a “domestic” relationship, which includes the following persons:

·    Spouse or former spouse or cohabitant
·    Roommate or former roommate
·    Person you may be dating or previously dated
·    Parent of your child
·    Family members including parents, siblings, aunts and uncles, nieces and nephews and first cousins

The definition of abuse is considered the intentional or reckless causing or attempting to cause bodily injury, sexual assault, or placing a person in reasonable fear of imminent serious bodily injury. Many times, victims take out a restraining order against their abuser. The restraining order may be enforced by California police, who are authorized to arrest violators of domestic restraining orders under California Penal Code Section 836. The district attorney’s office determines whether the charges to be filed will be a misdemeanor domestic abuse or a felony domestic abuse based upon the circumstances of the case. If the victim suffered minor injuries or threats, then the charges will most likely be a misdemeanor charge. However, if the victim suffered serious injuries, felony charges will be filed. It is not unusual to charge both parties if there are no witnesses and both claim abuse occurred or the police find cuts and bruises on both parties.

Penalties

You could face the following penalties if you are arrested for domestic abuse in California:
·    For a misdemeanor domestic abuse charge, you face fines and up to six months jail time as well as attendance of a domestic violence counseling program and 40 hours of community service and probation.
·    For a felony domestic abuse charge, you face fines and jail time ranging from three months to three years, as well as attendance of a domestic violence counseling class and 40 hours community service and probation.
In addition, if drugs or alcohol are involved, you may be required to attend an AA or NA program under California Penal Code Section 1203.097 and pay restitution to the victim and payments to a women’s shelter in the maximum sum of $5,000.

Help for Victims

The Governor signed a budget package on October 8, 2010, which included $20.4 million dollars to be allocated for statewide domestic violence shelter services that will be administered through the California Emergency Management Agency (CalEMA). This action now returns critical funding that was eliminated under a line item veto in July 2009.

Case Example

Former Chargers star linebacker Junior Seau was arrested on suspicion of assaulting his 25 year old live in girlfriend during an argument, which occurred at their Oceanside beachfront home on Sunday evening October 17, 2010. Oceanside police said the woman suffered minor injuries and did not require medical attention. Seau was released on bail from Vista jail on Monday. He was involved in an accident shortly thereafter as his Cadillac Escalade went over 30 ft. of boulders on an oceanfront cliff in Carlsbad. He was treated for minor injuries caused by the near fatal crash. He told police he fell asleep as he was heading south on Carlsbad Blvd. around 8:42 a.m. Monday. He awoke as the SUV started going over the side. Despite rumors that the accident was an attempted suicide involving the use of drugs or alcohol, Carlsbad police said they did not believe Seau was attempting suicide, and there were no signs of any type of intoxication. The results of a blood test that Seau agreed to take at the hospital will be available in six weeks. The domestic violence case is expected to be sent to the Oceanside District Attorney’s office on Friday according to Oceanside police. A tentative arraignment has been scheduled for Monday, October 25, 2010 should prosecutors decide to charge Seau.

If you are arrested in California for domestic abuse, you should hire a California criminal defense attorney. The attorney may be able to get the charges reduced or dismissed on the basis of self-defense or a simple misunderstanding or by getting the parties to enter into a civil restraint agreement agreeing to leave each other alone.

Immigration Law Update – Padilla v. Kentucky

On March 31, 2010, the United States Supreme Court issued an opinion in Padilla v. Kentucky (2010) 129 S.Ct. 1317.  The issue presented to the Court was whether a criminal defense attorney rendered ineffective assistance of counsel to a client when she failed to advise the client of and affirmatively gave wrong advice regarding the potential immigration consequences of his guilty plea.

Petitioner Padilla was a lawful permanent resident of the United States for over 40 years and honorably served in the U.S. Armed Forces in Vietnam.  Padilla pled guilty to a felony charge of transporting a large amount of marijuana in Kentucky.  His immigration attorney told him that he would not be deported because he had been in the country for so long.  However, the non-citizen removal statutes clearly state that any conviction for a drug trafficking offense will (not may, WILL) result in deportation.  Padilla claimed that he would have proceeded to trial had his immigration lawyer properly advised him that he would face deportation if convicted.

The lower courts, including the Kentucky State Supreme Court, held that a failure to advise on immigration issues and even wrong advice on immigration issues were merely a “collateral consequence” to his conviction thus his attorney’s erroneous advice was not a violation of his Sixth Amendment right to effective assistance of counsel.  Generally the court was saying that since the immigration issues were not a result of punishment by the criminal courts in direct response to his guilty plea, the Sixth Amendment did not apply.  An example of a collateral consequence would be a person losing their job because they pled guilty to a felony.  Although that is foreseeable and unfortunate, it is not a punishment doled out by the court and thus is a “collateral consequence”.

The United States Supreme Court disagreed with the Kentucky State Supreme Court.  Instead, the U.S. Supreme Court decided that immigration consequences are an integral part of the penalties associated with criminal proceedings for non-citizens because those consequences are often as severe, if not more so, than the actual criminal punishment.

The Court recognized that immigration law is a complex area of practice, but due to the severity of the consequence of a criminal conviction, criminal defense attorneys still have some duties to the clients with regard to immigration.

The Court held that if the immigration consequences were clear, as they were with Padilla, then an attorney has a duty to advise the client of those consequences prior to letting them enter a guilty plea.  In Padilla’s case, if the attorney had read merely the removal statute, she would have seen that his plea would automatically result in deportation because all drug trafficking offenses result in deportation.  If the consequences are not clear, the attorney then has a duty to advise the client that there will be immigration consequences including potential deportation but the attorney does not have to be more specific.

Illinois Reckless Homicide and Aggravated DUI Statutes

Under Illinois Law, 720 ILCS 5/9-3(a), you can be charged with the felony crime of Reckless Homicide (also known as vehicular manslaughter in some states) if you are driving a motor vehicle, snowmobile, all terrain vehicle or watercraft recklessly which causes the unintentional death of another person. The Illinois sentencing laws classify Reckless Homicide as a class 3 felony with a prison term of two to five years. If you are convicted for a reckless homicide, your license will be revoked for a minimum two years in Illinois. The court evaluates aggravating circumstances such as speed, gross negligence and drunk driving in determining sentencing of jail times, fines, penalties and revocation of driving privileges.

Class 2 Felony
The Reckless Homicide felony class 3 could be raised to a class 2 felony if there are aggravating circumstances as set forth under 720 ILCS 5/9(e)2 through (e)(9) and (f). Examples of Class 2 felonies are offenses that occur on a public thoroughfare involving children going to and from school where there is a crossing guard, where the defendant was driving in a construction or maintenance zone, the defendant caused the death of two or more persons in a single accident or a victim was a family or household member. Class 2 felonies have mandatory sentencing ranging from three years to 14 years. However, a third DUI or aggravated DUI in Illinois is also classified as a Class 2 felony under the DUI Statute 625 ILCS 5/11-501. If convicted of a third DUI offense, then the sentence ranges from one year to 12 years and 6 years to 28 years if two people died in the accident. You could be charged with multiple offenses such as Reckless Homicide and Aggravated DUI.

Case Example
Unfortunately, there are many examples of aggravated DUI and reckless homicide cases that occur frequently in Illinois. For instance, in March of 2010, a 50 year old male employee of St. Charles’ Illinois Youth Center was charged with reckless homicide regarding the death of a St. Charles resident that occurred in 2008. The defendant tried to pass multiple cars in a no passing zone of a two lane highway when he crashed head on into the victim’s vehicle at 5:30 a.m. The victim was pronounced dead at the scene. The defendant was charged with three aggravated DUI charges for driving a vehicle under the influence of Codeine, which is a controlled substance, driving under the influence of alcohol and also for the combination of driving under the influence of the controlled substance Codeine and alcohol. He faces a possible sentence of 3 to 14 years for each aggravated DUI charge. The case was delayed because of blood alcohol level records. Bail was set at $500,000.

If you have been arrested for Reckless Homicide and/or aggravated DUI charges, you should contact an Illinois criminal defense firm immediately upon your arrest to defend you because these are serious charges. The attorney may be able to argue that there were mistakes in the evidence including your BAC test or improper calibrations in the breathalyzer machines. The police could have taken advantage of you and used illegal means to obtain your consent to testing for alcohol or other controlled substances. It is also possible that samples of blood or urine could have been contaminated. You may be able to get the DUI charges thrown out or reduced to speeding or lane changing, or the Reckless Homicide charges reduced to simple negligence. The attorney will evaluate your case and advise you of all your legal remedies and defenses.

White Collar Crime Still Making Headlines

White collar crime continues to make headlines. Jamil Murni, 60 lives in Houston Texas and has been a Commodity Manager for the Royal Caribbean Cruises since 2000. His everyday job was to negotiate fair fuel prices and monitor delivery for Royal Caribbean.

This month an indictment was entered against Murni, charging him with one count of money laundering and nine counts of wire fraud in Miami, Florida. According to records from 2003 until later 2006 he orchestrated a scheme and defrauded his employer of more than $625,000.

Florida’s indictment stated he opened via the internet a registered fictitious name called “Sea Fuels Trading”. Florida Department of State’s Division of Corporations confirms such a filing. Then he used his position at Royal Caribbean to gain a contract with them and his new company, Sea Fuels Trading. He never released his ownership or connection with his employer before or during the term of the contract. Therefore, he continued to be employed at Royal Caribbean and sought monumental benefits from the fuel sales at the same time. It was also concluded that the amounts paid to Murni’s company where at a much higher rate than if they used any other legitimate fuel company.

Today more and more white collar and internet crimes are becoming public. In 2002, Senate adopted a 97-0 vote, doubling the original five-year maximum prison sentence for wire fraud to ten years. In hope of deterring such actions as Murni is being accused of. However, the issue remains of the difficult and expensive nature such crimes are to prosecute. The evidence needed in such cases is complex and lengthy to obtain. Complicated rules of law can be interpreted in various different ways.

Defendants in white collar crime cases usually are able to afford top tier Attorneys and aren’t fast to make a plea bargain. For one thing, the limits set by Congress for sentencing in federal cases are not what determine actual sentences in real-world cases. Those are controlled by sentencing guidelines, and the guidelines almost always specify penalties below the maximum. Judges no longer are free to set sentences on their own, and have lost their discretion to opt for maximum penalties if those would go beyond rule ranges.

Domestic Violence Has No Social Boundaries

California law classifies domestic violence as abuse committed by an adult against a spouse, former spouse’s child, cohabitant or former cohabitant or persons who have had a child together, or who have a relationship. Under California law, a former spouse, cohabitant and either parent of a child are also considered a spouse for purposes of prosecution for spousal abuse. California Penal Code Section 273.5 considers corporal injury to a spouse a felony domestic violence charge with fines, county jail time or incarceration in state prison depending on the number of offenses and seriousness of the injuries. California Penal Code Section 422 also considers stalking and making threats domestic violence abuse. A domestic battery under California Penal Code Section 243(3)(1) is considered willful force or violence committed against an intimate partner. An intimate partner is considered someone you are engaged to be married to, a current or former spouse, a parent of your child or someone you are dating.

In addition, California Penal Code Section 1203.097 requires a convicted domestic violence defendant to attend a batter’s class as part of their probation and attendance of an AA or NA program if alcohol or drugs were involved in the domestic violence incident. A convicted of domestic violence may also require the defendant to pay restitution to the battered victim for counseling costs and reasonable expenses determined by the court and to make payments to a women’s shelter up to the maximum sum of $5,000. Marital assets may not be used by the defendant to pay for injuries to their married spouse. The court may also issue a restraining order against the defendant for up to 10 years based upon the seriousness of the crime and the possibility of future harm to the victim or the victim’s family.

Orange County Prosecutor Arrested for Domestic Violence

No social or economic class is immune from domestic violence. In fact, even well respected Huntington Beach, Orange County Prosecutor, David Brent, and his wife, were arrested in December of 2009, for domestic violence after the couple allegedly fought. Mr. Brent has been employed for 24 years as an Orange County prosecutor. Mr. Brent’s wife called 911 to report the argument. She was treated by medics who arrived at the family Huntington Beach home after Mr. Brent left the scene on foot. A list of his injuries was not specified. Both were subsequently arrested for allegedly violating California Penal Code Section 273.5, corporal injury to a spouse, which is a felony domestic violence charge. Corporal injury is categorized under California law as using serious force that causes an external or internal minor or serious wound.

The couple was taken to the Huntington Beach jail. Mr. Brent could face penalties of a minimum county jail time of one year with time served to a maximum four year’s sentence in a California state prison for a first offense felony domestic violence charge and a possible $6,000 fine. The case was referred to the State Attorney General’s office for prosecution to avoid any conflicts of interest.

California AB 532

California continues to enact more laws to help victims and protect families and communities from the dangers associated with domestic violence crimes. Counseling is also available to victims and abusers through various private and public programs. Effective January 1, 2010,
California has enacted AB 532 which now allows police to obtain a warrant to seize weapons that may be kept at a residence after a domestic violence or mental health incident has occurred at the residence.
Signs that a spouse or partner may be exhibiting that may lead to a domestic violence incident include:

• Extreme jealousy
• Attempts to alienate partner or spouse from seeing their friends or family
• Public outbursts of yelling or humiliating spouse or partner
• Hitting, slapping, pulling, pushing or tugging at partner or spouse’s hair or physical injury against spouse or partner
• Imprisoning spouse or partner in their house

A conviction of domestic violence is a serious crime in California. Both victims and abusers should seek counseling to prevent further incidences of abuse and to help the healing process.