San Francisco Criminal Law

California Laws 2016 -Prosecutorial misconduct (withholding evidence)

The California state legislature enacted 807 new laws during the 2015 legislative session.

 

CA Penal Code Section 1424.5 was added to law.

“(a) (1) Upon receiving information that a prosecuting attorney may have deliberately and intentionally withheld relevant or material exculpatory evidence or information in violation of law, a court may make a finding, supported by clear and convincing evidence, that a violation occurred. If the court finds such a violation, the court shall inform the State Bar of California of that violation if the prosecuting attorney acted in bad faith and the impact of the withholding contributed to a guilty verdict, guilty or nolo contendere plea, or, if identified before conclusion of trial, seriously limited the ability of a defendant to present a defense.

“(2) A court may hold a hearing to consider whether a violation occurred pursuant to paragraph (1).

“(b) (1) If a court finds, pursuant to subdivision (a), that a violation occurred in bad faith, the court may disqualify an individual prosecuting attorney from a case.

“(2) Upon a determination by a court to disqualify an individual prosecuting attorney pursuant to paragraph (1), the defendant or his or her counsel may file and serve a notice of a motion pursuant to Section 1424 to disqualify the prosecuting attorney’s office if there is sufficient evidence that other employees of the prosecuting attorney’s office knowingly and in bad faith participated in or sanctioned the intentional withholding of the relevant or material exculpatory evidence or information and that withholding is part of a pattern and practice of violations.

“(c) This section does not limit the authority or discretion of, or any requirement placed upon, the court or other individuals to make reports to the State Bar of California regarding the same conduct, or otherwise limit other available legal authority, requirements, remedies, or actions.”

In a related provision,  Business & Professions Code section 6068.7(a)(5), providing:

“(5) A violation described in paragraph (1) of subdivision (a) of Section 1424.5 of the Penal Code by a prosecuting attorney, if the court finds that the prosecuting attorney acted in bad faith and the impact of the violation contributed to a guilty verdict, guilty or nolo contendere plea, or, if identified before conclusion of trial, seriously limited the ability of a defendant to present a defense.”

These provisions add serious consequences to the withholding by prosecutors of relevant or material exculpatory evidence or information in any criminal case.

Child Prostitution Ring Uncovered in Bay Area (CA Penal Code §647(b))

“Operation Cross Country,” an FBI task force, successfully carried out a nation-wide sweep for prostitution rings last week, rescuing at least 12 children who had been forced into sexual slavery.  FBI officials cited San Francisco as the #1 city in the country for child prostitution issues and it was there that at least 4 pimps were arrested in the area.  These sweeps have, in total, resulted in approximately 1,350 convictions and $3.1 million in asset forfeiture.

California law dictates (CA Penal Code §647(b)) that anyone soliciting prostitution (offering to engage in sex for money) or actually participating in acts of prostitution be dealt with harshly. In other words, law enforcement officials argue that these individuals ought to be punished to the fullest extent of the law. However, there is more often than not very little press concerning what happens to the “middlemen” in prostitution scenarios – the pimps.  A pimp may also be charged with “supervising or aiding” a prostitute under CA Penal Code §653.23.

Certainly, it could be argued that any given civilized society has the responsibility to protect children from becoming the tools of adults who would sell their bodies. A first-time misdemeanor charge of prostitution or supervising or aiding a prostitute carries with it a possible 6 months in jail and/or a maximum fine of $1,000.  “Pimping” and “supervising or aiding a prostitute” is delineated as separate crimes under state law.  Yet, in most cases, task forces like Operation Cross Country are the result of public and political pressures.  There is a marked disparity between the laws concerning prostitution in California and the attention it is given in the media and other pubic outlets.

Oregon University Graduate Murdered in Emeryville (CA Penal Code §187)

In mid-June, Sacred Heart Prep School and University of Oregon sociology graduate 22-year-old Aya Nakano was on his way home from a friendly game of pick-up basketball when he was involved in a fender bender on Market Street near the corner of Stanford Avenue.  His silver Jeep Cherokee was rear-ended by another silver car, a four-door sedan. The drivers of both vehicles did exactly as they should have, as all good citizens do – they exited their vehicles to speak to one another, ostensibly to exchange insurance information and to discuss the minor accident.  However, an argument of some kind ensued and Nakano was shot to death at point-blank range.  The two men in the silver sedan fled down Market Street and have yet to be brought in for questioning.

Many people in the Bay area are asking the same question that Nakano’s mother has expressed: how are we to understand a society that allows something like this to happen to someone who has so much promise – and was simply trying to do the right thing. But, local law enforcement officials suspect that this case just isn’t that simple.  They are currently investigating whether or not the supposed accident was actually a set up, a plan for the murder of Nakano.  There is video surveillance footage of the incident, but Nakano’s family is offering a $35,000 reward for further information.  If the two assailants are discovered, they will, of course, face murder charges pursuant to CA Penal Code §187 – whether the charges will be first degree murder, second degree murder, capital murder, or first degree felony murder will depend upon the evidence uncovered in this ongoing investigation.

Paramedics Contaminated Crime Scene in Monte Sereno Millionaire Slaying

Until recently, there was really only one suspect in the November murder of Ravi Kumra, former owner in a Saratoga vineyard and entrepreneur – Lukis Anderson (26) of San Jose, whose DNA was found in the slain millionaire’s home. For months, local law enforcement officials, prosecutors, and defense attorneys alike have tried to figure out how Anderson could have been in two places at once – both black out drunk in a hospital and in the midst of murdering Kumra, whose home was far away.  New evidence suggests, however, that there is no mystery at all.  In point of fact, the paramedics that responded to the grisly scene at Kumra’s Withey Road mansion were the same that brought Anderson to the hospital 2 hours before for high-level intoxication (5 times the legal limit) from a local liquor store.  The two employees of a local ambulance company (Santa Clara County Ambulance) now stand accused of not having followed proper procedure when it comes to cleaning themselves between calls.

Though Anderson has now been released, he spent a lengthy 5 months in jail for the murder of Kumra, even though Anderson had never met the victim or anyone else who was present at the mansion at the time of the murder.  There was nothing to tie him to the crime except the DNA evidence found on Kumra’s body.  It was impossible for Anderson to have committed the crime, seeing as he was in the hospital for more than 12 hours after the attack.

Dying Declaration Exception Used in Suisun City Stabbing Case (CA Evidence Code §1240 – §1242)

The victim in a stabbing on Worley Road in Suisun City managed to give local law enforcement officials the name of her attacker before expiring.  After an argument on the 1300 block of Worley Road, the unnamed target was stabbed repeatedly.  Police have yet to release the name of the suspect, but are on his or her trail.

This brings up an interesting legal question, namely whether or not utterances that would normally be considered inadmissible in court because they are considered hearsay could be admitted because they are “dying declarations.”

According to California Evidence Code, hearsay (statements uttered by persons who may not be reliable witnesses or that cannot be appropriately substantiated) is not admissible as evidence in a court of law.  However, there are several exceptions to this rule (Chapter 2, CA Evidence Code). Outright confessions are one example of this, but so are dying declarations (CA Evidence Code §1240-§1242). A dying declaration is exactly what one may think – a statement made by a victim as they are taking often their last breaths.  This is not considered hearsay because the victim has direct knowledge of the crime.  A dying victim has every right to alert law enforcement officials to the identity of their assailant and to the circumstances of their demise.  Other exceptions to the hearsay rule concerning evidence are: official records, former testimony, scientific publications, and statements made against abusers by children under 12 years of age.

Hoang Brothers of Fremont Accused of Web Priacy (CA Penal Code §653)

Many of us have laughed at FBI warnings for years.  We settle in to watch a favorite Blu-ray or legally downloaded movie and it appears: the message about movie piracy: “You wouldn’t steal a handbag…You wouldn’t steal a car…Illegally downloading movies is stealing.” Some newer discs even include fast-paced public service announcements with what is meant to be ‘trendy’ music and an outdated ‘90s vibe. These have been spoofed on the Internet and television so many times that they have become a joke.  However, for three brothers in Fremont (Hop, Tony, and Huynh Hoang), it would have been wiser to take these warnings seriously.

The “Fremont Three,” as we will call them, have been charged with grand theft, conspiracy, and receiving stolen property for their operation of mediamap4.com, which allowed streaming of over 1,000 bootleg videos.  Tony Hoang was also involved in movieiphone.net and iphonetvshows.net – two other dedicated downloading and streaming sites.  A cease-and-desist letter from the Motion Picture Association of America was sent to the brothers in late 2012 and was ignored.

In California, where, as one can easily imagine, pirating movies and television shows is taken a bit more seriously than in other states where moving-making is not a central industry, anti-piracy laws are strict.  Not only is it possible that the federal government will get involved, but California law enforcement agents as well.  State fines reach upwards of $500,000 and jail terms range from 1 to five years (CA Penal Code §653).  On second thought, the Fremont Three may not be the only persons who ought to take anti-piracy warnings seriously – no matter how funny the spoofs are.

VIOLATIONS OF CALIFORNIA LAW PREVENTS NEW EXECUTION RULES

Officials in the California system who have authored a bid for new rules on execution, including using a different method than most states in the U.S., have evidently not bothered to “do their homework” when it comes to state laws on the subject.  The need for a change in the system and methods of execution is simply unnecessary and, for many citizens, unreasonable.  There is, to be sure, a long and hotly debated history of capital punishment in the state of California.

Before the 1972 case, People v. Anderson, there were 709 executions carried out in California, beginning in 1778 when San Diego County officials shot several Native Americans charged with conspiracy to commit murder.  People v. Anderson caused the death penalty to be revoked in the state, until it was reinstated in 1978.  Yet, since 2006, there has been a moratorium on executions in California due to a decision made by U.S. District Judge Jeremy Fogel, who found so many problems with the state’s methods when executing prisoners that he stopped the process entirely.

Now, California prison officials are attempting to return to the era of capital punishment – with one serious problem that the First District Court of Appeal in San Francisco cannot allow.  What is that issue?  They have completely altered and re-written the state’s execution rules to include, not one injection of lethal substances, but three: an anesthetic, a paralytic, and potassium chloride (which causes an electrolyte imbalance and thus causes the heart to stop). Most states use a large dose of one medication – a strong barbiturate that prevents pain and prevents the possibility of a prisoner becoming conscious during the process.

Whatever your thoughts may be on capital punishment in general, it is certain that most Californians would agree with the new ruling that prevents “cruel and unusual punishment” as suggested by the recent changes submitted to the court by the state Department of Corrections and Rehabilitation.  It makes sense for the First District Court of Appeal to reject these changes because they are, in fact, unreasonable and simply unlawful.  The authors should have done a little more research before submitting this re-written document – and it is frightening that the very Department of Corrections and Rehabilitation representatives are so unaware of the laws in the state to which they are duty-bound.

24-YEAR OLD MADERA COUNTY MURDER CASE REMAINS UNRESOLVED (CA Penal Code §187)

In 1989, then 20-year-old Michael Pizarro became famous – for all the wrong reasons.  He was accused, and then convicted, of sexually assaulting and then murdering (CA Penal Code §187) his 13-year-old half-sister, Amber Barfield.  24 years later, no one can be sure whether or not Pizarro did it. On the one hand, there is a good bit of circumstantial evidence to link him to the crime and, on the other hand, there’s no real proof to be spoken of in the case.  The latest issue, in Pizarro’s third trial on the matter, is the fact that a juror used the Internet to research the previous trials and applied that forbidden information to his decision.

There are some things that are known about the case – Pizarro had been drinking the entire afternoon of the incident, for one.  When his then wife, Sandy, took their infant child and his half-sister, Amber, to look for him after an argument at a local party, Pizarro acted strangely, running away from them and, at one point, even lying down in the street in front of their vehicle. Amber exited the truck and went into a nearby field to look for him, Sandy heard a scream and saw the light from Amber’s flashlight, and the girl was found the next morning close to the same area. She had been sexually assaulted and smothered to death.  DNA evidence shows that someone of the same blood type as the accused had committed the crime, but Pizarro insists it was not he.  Instead, he says he threw the flashlight at Amber and left her in the field, then passed out in some nearby bushes.

So, why has this case gone on so long?  One answer could be that he’s the luckiest man in California.  The other answer is that he is simply not guilty.  The real question is whether or not Pizarro, who, by all accounts loved his sister and had never been known to exhibit animosity toward her, should now be allowed to live out his life in peace.  If three different juries found it difficult to make a decision in the case, then there is certainly room for reasonable doubt. The Attorney General’s Office is considering an appeal of this latest decision and intends to continue to attempt to prosecute Pizarro to the fullest extent of the law. Did the justice system fail Amber Barfield or has it failed Michael Pizarro for the past 24 years?

7 YEAR WIRE FRAUD CONVICTION OF LOS GATOS ATTORNEY UPHELD (CA Penal Code §186.9)

Bay area lawyer David Prince still maintains his innocence in a stock fraud scandal that cost his clients over $1.1 million.  The original 2011 conviction was five counts of wire fraud, though, on appeal in the U.S. Circuit Court of Appeals, Prince argued that he never had any intention of purposefully defrauding the 30 investors he assisted.  Instead, he admits that he simply made some very bad decisions.  Prince’s situation was made worse by the fact that the court considers him a member of a profession that people believe they can trust.

Wire fraud is considered a federal crime (CA Penal Code §186.9) and, to this effect, courts will take many things into consideration when coming to a fair and balanced decision about sentencing.  Some of these factors may include the defendant’s criminal record (if any), their economic situation or any other thing that may influence their sentence at all.  For example, if a particular defendant has been convicted of a drug offense in many state courts, the judge has the right and the responsibility to hand down a sentence that fits the severity of the crime itself.  The object is for the court to be fair and to take individual circumstances into consideration.  If the aforementioned individual has a long record of drug offenses, then the court may hand down a more sever sentence.  If, however, the individual who has been convicted has been a victim of extenuating circumstances, then the court may be more lenient.

In Prince’s case, his position as a seemingly well-respected Bay area attorney counted against him when it came to sentencing procedures.  If he had not been a lawyer, the court argued, then people would have been less likely to trust him to invest their monies wisely.

Defense Attorneys Now Better Positioned to Assist Clients

The state of California has learned a bit of a lesson from history.  Recently, a Second District Court of Appeals decision has strengthened the defense attorney-client relationship by making it almost as airtight as a therapist’s relationship with their patient.  It could be argued that this debate has been ongoing – at least since the 1974 and 1976 Tarasoff v. Regents of the University of California I & II

In what came to be known as the “Tarasoff Case,” a fellow student from India – Prosenjit Poddar, murdered a young woman by the name of Tatiana Tarasoff.  Although Tarasoff had shared but a few exchanges with Poddar, he became unreasonably attached to her, so much so that he sought psychiatric help at his roommate’s urging.  The psychologist, Dr. Lawrence Moore, who saw Poddar on several occasions, attempted several times to have him committed after Poddar made threats against Tarasoff. However, the university police force at the time decided for themselves that Poddar was harmless and let him go. Poddar killed Tarasoff in her home less than a year later.

The Tarasoff decision brought to light the very difficult position that mental health professionals are in when clients make threats against a third party.  Yet, this may be an arguable point in the psychiatric world – it is not the same for defense attorneys.  Part of a successful defense attorney’s job is to ensure that their client receives a fair trial.  Now that the Second District Court of Appeals has determined that this right overrides the duty to report other crimes – like child abuse, for one – a balance of confidentiality and fairness seems to have been reestablished.

Though no one would argue that what happened to Tatiana Tarasoff was pleasant, Dr. Lawrence Moore neither needed nor desired to breach confidentiality with Poddar in order to prevent this horrible crime.  Many agree that it was the failure of the campus police to act on Dr. Moore’s instructions that allowed Tarasoff’s death to occur.  Now, in light of this new decision, a therapist may go directly to an individual’s defense attorney with any such suspicions and the decision as to whether to act to prevent these will be left in the capable hands of legal professionals.