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DOMESTIC VIOLENCE IN THE BAY AREA – ROLE OF COMPLAINING WITNESS

Arrested for Domestic Violence in the Bay Area?

One of the most common questions Domestic Violence arrests provoke is what is the role of the complaining witness in deciding to or influencing charging and prosecution.

DOES VICTIM HAVE TO TESTIFY?

It is well known that a victim of domestic violence does not choose whether charges are brought against his or her significant other. The questions of whether a domestic violence victim have to testify in a domestic violence trial depends on several factors.

You can be sure that the District Attorney will subpoena the victim to appear on the day of trial.

WHAT HAPPENS IF WITNESS DOES NOT SHOW UP?

Any individual that does not respond to a subpoena properly served, will be subject to a bench warrant and an Order to show cause as to why that witness did not appear in court. This applies to domestic violence victims. If no good cause is shown for non-appearance, the court will hold the witness in contempt of court.

CAN I SHOW UP AND NOT TESTIFY?

If the witness appears in court but refuses to testify, California Civil Code section 1219(b) limits the penalties the court can impose on the person. That is, a court can not imprison a victim of domestic violence for contempt of court and can refer the that person to a domestic violence counselor.

IF I REFUSE TO TESTIFY, WILL THE DISTRICT ATTORNEY DISMISS THE CHARGES?

Unfortunately, the answer to this question is…. IT DEPENDS. The District Attorney will have to consider the strength of the evidence given the refusal to testify. Factors such as injuries (and photographs of those injuries), witnesses, prior testimony/statement of Complaining witness and defendant’s statement will be evaluated. It may be that the prior statement of the victim of Domestic violence is admissible as an exception to the hearsay rule.

If you or your significant other have been arrested or charged with Domestic Violence, contact Summit Defense Domestic Violence Lawyer for a free consultation. (800) 929-0451

Illegally Detained Journalist Wins Civil Suit Against Oakland

During a protest concerning the case of Trayvon Martin in July of 2013, an independent journalist was cited for jaywalking.  What he soon realized was that the law enforcement officials in Oakland, where the protest took place, seem to have had another motive in mind besides following the law, they were attempting to detain him so that he could not document the events of the protest.  Although Oakland police maintain, even now, that they wrote a jaywalking ticket for the journalist simply because he was jaywalking, the city of Oakland has recently agreed to fork over $9,500, settling the journalist’s civil suit.  The ticket was long ago thrown out in traffic court and the journalist argued that the real motivation for the ticket was not only to detain him illegally, but to improperly gather information concerning the protests.  Furthermore, the journalist in question is well known for having frequently reported on police injustice in the Oakland Police Department.

Civil suits like the one described above are one way that the citizens of California can exercise their rights.  Of course, there are limits.  A person simply cannot sue the city or police force for anything they choose.  You must discover whether or not you have the right to sue and this varies from situation to situation.  In legal jargon, this is called having ‘standing’ to file a suit.  It means that you must have been directly affected by whatever it is that you are suing about.  In the case of the journalist, for example, the jaywalking ticket directly affected him because he was handcuffed, illegally detained by law enforcement, and asked questions that did not pertain to his having jaywalked.  In most cases, you will need to solicit the assistance of an attorney so as to assure that you are following not only the Code of Civil Procedure, but also the California Rules of Court and whatever rules your local court has set forth.  For individuals who feel that their civil rights have been trampled upon or who want to make a statement against a particular law enforcement agency, filing a civil suit is one way to find remedy.

 

Gilroy man Arrested for Illegal Cultivation and Distribution of Marijuana (CA Health and Safety Code 11358 and 11359)

Although it never seemed to be open for business, a furniture store in Gilroy seemed innocuous enough to passers by.  The truth of the matter, say local law enforcement representatives, is that it was a front for a large grow house, containing over 1,000 marijuana plants in the storage area where furniture should have been.  A 39-year-old man (name withheld to protect the privacy of the accused) has been arrested on charges of illegal cultivation of marijuana, distribution, and theft of utilities.  After completing a search of the grounds, police also found approximately 50 pounds of processed marijuana in addition to the plants.

The fact that medical marijuana has been available to consumers for quite some time now in California does not change the fact that other laws concerning this particular drug are still harsh.  It is still illegal to plant, harvest, dry, process, or otherwise cultivate marijuana in the state, unless you have permission from authorities to do so in connection with a medical marijuana license (or if you are the primary caregiver for someone who has permission to use medical marijuana).

The laws concerning this particular crime are so severe that you need not even be aware that marijuana is being cultivated on your property in order to be arrested.  According to the California Health and Safety Code 11358, the illegal cultivation of marijuana is considered a felony.  Even for a first offense, you could end up spending up to 3 years in county jail.  Furthermore, if it is suggested that you were cultivating marijuana for the purposes of selling it (CA Health and Safety Code 11359), you may be looking at an additional 3 years in jail.

 

Giants Reveler Arrested for Setting Off Fireworks in Hercules (CA Health and Safety Code 12500-12728)

Considering the circumstances, perhaps the police should have been easier on a Giants fan caught setting off small fireworks displays close to Canterbury Drive after the game.  After all, when the Giants won the World Series, many people felt like celebrating.  There was even a fireworks display at AT&T Park.  However, celebrating with fireworks inside the city limits, when you’re not a professional who deals with pyrotechnics as a matter of course is illegal.  The unknown fan was given a citation for possession of ‘dangerous fireworks.’

Strangely enough, there are 2 different categories of fireworks according to California’s Health and Safety Code 12500-12728:  ‘safe and sane’ fireworks and ‘dangerous fireworks.’  ‘Safe and sane’ fireworks are defined as fireworks that are marked with a seal from the state Fire Marshall, who’s office regularly registers legal fireworks.  Any other kind of firework is considered to be dangerous.  Examples of ‘dangerous fireworks’ include rocket and sparkler types that are more than 10 inches long or thicker than ¼ inch around.  The distinction of ‘dangerous’ could also apply because the fireworks contain some known poisonous or hazardous substance like arsenites, magnesium, or phosphorous.

Although the possession or use of illegal fireworks is usually treated as a misdemeanor, it could rise to the level of a felony if you are in possession of a large number of fireworks that are considered dangerous; in a felony case, fines can be as high as $50,000 and you could end up spending up to 3 years in state prison.  However, a misdemeanor conviction of the same means facing only a $1,000 fine and a possible 1 year sentence in county jail.

 

Swatting Becoming a Larger Issue Than Ever (CA Assembly Bill 47)

The world of video gaming is immense and complicated.  All too often, gamers become more heavily involved in the gaming world than they are in their real lives.  This subject has been the source of many debates concerning video games and their ‘addictive’ qualities.  One extreme example is this: on Thanksgiving Day of 2001, John Doe’s mother found him dead in front of the game Everquest, (name withheld in order to protect the privacy) his papers and notes strewn about him and the chair he was sitting in when he decided to end his own life.  While it was never determined whether he committed suicide as a direct consequence of being heavily involved in this never-ending quest game, he had been enrolled in several different treatment programs for video game addiction, considered by some psychologists to be as serious as an addiction to harmful drugs.  Debates about ‘SWATting’ are the next big thing to hit ethicists and legal minds since gaming ‘addiction.’

SWATting is one way that gamers in the video game world can exact real-world revenge on other players.  A phone call is made, either to the police or to 911 and a person pretending to be someone else forces the police or other law enforcement officials to go to the scene of the fake crime.  When they get there, they do not find what they expected to, but just gamers in front of their computers.  SF Gate reported recently that, “One caller said he shot his co-workers at a Colorado video game company and had hostages.  Another in Florida said her father was drunk, wielding a machine gun and threatening their family.  A third caller on New York’s Long Island claimed to have killed his mother and threatened to shoot first responders.”

As you can see, these are not harmless pranks and the police are set to take them more seriously in the future.  In 2013, the California legislature put forth an anti-SWATting bill (AB 47) that forces perpetrators falsifying a report of a crime to pay back the thousands of dollars spent to launch an investigation of these fake crimes.  It was signed into law that same year and took effect on January of 2014.  Estimated costs for police are around $10,000 per false phone call.

 

Death of Robin Williams Stirs Up Privacy Concerns (California Constitution Article I – Declaration of Rights)

The world is still in the process of mourning the death of a beloved American icon, Robin L. Williams. He was more than just a comedian, he was a force to be reckoned with.  We laughed along with him in films like “Mrs. Doubtfire,” in which a single dad tried anything he could to connect with his children; we all wanted to stand up on our desks and cry out “O Captain, my Captain!” at the end of “Dead Poet’s Society.”  Robin Williams has been a part of many people’s lives for a number of years and his loss will be felt for a long time in the future.  However, there has been an uproar lately concerning the release of the specific details of his death, some say that this was not necessary; others say it’s a matter of law.

Various media outlets (like the LA Times and BBC5) have been heavily criticized for having presented, not just the basic information concerning the star’s demise, but the gory details of what the police found when they entered Williams’s home in the unincorporated community of Tiburon.  The Marin County Sheriff’s Department claims that officials must release the graphic details of any person’s death as they are a matter of public record, even when family members request privacy and time to grieve (as Williams’s family has done).

While others have addressed this problem as one of media ethics and responsibility, it should also be looked at as a question of the responsibility and ethics of state institutions like the Sheriff’s Department.  What is in question is whether or not the intimate details should have been reported to the public during a news conference.  However, because the coroner’s office is, in fact, an office that deals in public records, any details such as the ones released in William’s death can be released.  However, should they?  Should information that is in the public record be repeated by media outlets all over the country and the world because of a graphic and gruesome press conference from a seemingly unfeeling set of officials?

California law seems to state that a coroner’s report, the kind of report in question here, is available to any member of the public through the right channels.  It is not a private document and cannot be concealed in any way by law enforcement or other officials.  The only thing that can be kept confidential is any communication from the deceased that has been obtained via a subpoena (California Governmental Code 27491.8).  However, it has also become increasingly popular for individual family members of the deceased to invoke the privacy clause in the California Constitution Article I – Declaration of Rights, as a reason for keeping certain information private.  Perhaps Williams’s family would have had the opportunity to do this, if the Sheriff’s Department had not already released the details of where the actor and comedian was found, what he was wearing, and exactly how he chose to end his own life.  Certainly, many members of the public would argue that this action was irresponsible and a bit, well, tacky.

 

Nortenos Gang Injunction in Question in Oakland’s Fruitvale District (CA Penal Code 186.22)

Less than one year ago, Oakland began trying out a new strategy against gang violence, Operation Ceasefire.  Law enforcement and politicians alike seem to believe that placing injunctions on gang members will solve the ever-present problem of gang-related crime.  The problem is that there is very little evidence to support the claim that these injunctions have actually served to prevent violence of this kind.  Recently, however, a state appeals court upheld the 2013 injunction against alleged members of a specific gang, the Norteños.  About 40 persons with long criminal records are named in the injunction that effectively prevents them from coming within 2 miles (a ‘safety zone’) of the Oakland’s Fruitvale neighborhood.  What remains to be seen is whether keeping these 40 people out of the neighborhood will stem the violence attributed to them.

The state of California already has a Gang Sentencing Enhancement Law (CA Penal Code 186.22), which is part and parcel of the California Street Terrorism Enforcement and Prevention Act ( “STEP” Act).  It not only makes being part of a gang a crime in the state, but also carries with it sentencing enhancements.  In other words, if prosecutors can prove that you committed a crime and were also a member of a gang, then your sentence could be significantly longer than if you had committed the same crime, but not been a member of a gang.

If you simply belong to a gang, then you could face anywhere from 1 year in county jail to 3 years in state prison, depending on your level of involvement.  Additionally, if it can be proven that a felony crime you were a party to was done for the sake of the gang you belong to, then you could face up to 25-years-to-life with current gang enhancement penalties, even if you did not directly commit the crime, but were simply involved.  Most Californians, especially those living in Oakland, understand the dangers of gang-related violence.  However, law enforcement officials, city officials, politicians, and judges are resting their hopes on a series of laws that may not actually be effective.  Sending 40 alleged gang members into a different part of the state doesn’t really seem like a solution to the problem.

 

Laws Concerning Cell Phones Far Too Vague (CA Vehicle Code 23123 and 23123.5)

In a recent article by SFGate staff writer Jaxon Van Derbeken, ‘the ins and outs of the laws governing cell phone use while behind the wheel of a car,’ is meant to be further clarified.  However, Van Derbeken doesn’t seem able to pinpoint the actual legalities involved, even after what seems like several interviews with Mike Harris of the California Highway Patrol.

What Van Derbeken’s article does serve to show is that it seems to be up to the subjective opinion of the particular law enforcement officer to determine whether or not you have broken the law.  Van Derbeken’s sources seem to believe that it is against the law to drive in a manner that is distracted and this is partially true.  A February 2014 California appeals court decision makes exceptions for consulting a map app while driving (as long as you aren’t holding the phone in your hand while taking a look at it) and Bay Area citizens are already well aware that they could receive a fine if they are caught talking and driving without using a hands-free device.

So, let’s clarify a bit.  California Vehicle Code 23123 (part of the state’s laws on distraction while operating a motorized vehicle) is the law that makes it illegal to drive while using a cell phone, with the exception of using a hands-free device.  Penalties for a violation of this code include a $20 first offense fine and a $50 fine for each subsequent violation.  It does not apply to emergency calls, nor does it apply to driving on private property.  CA Vehicle Code 23123.5 covers texting while driving (writing, reading, and sending are all illegal) and the same penalties and exceptions apply.

The above is the actual letter of the law, but Van Derbeken’s source reminds us that doing anything that a law enforcement officials might deem evidence of distraction while driving could get you into trouble.  However, perhaps these laws should be made more specific in order to accommodate newer technologies and the times.  Also, police officers should be more careful when determining what constitutes distracted driving, it is after all, often dependent upon their personal opinion.  But that doesn’t mean that they will win the day in traffic court.

 

Los Angeles Police Crack Down on Jaywalking (CA Vehicle Code 21955)

The Los Angeles Police Department has recently decided to focus quite a lot of their manpower and energy on one of the least-publicized types of crime in California cities, jaywalking.  Citizens of Los Angeles have complained that this strange movement is in response to the fact that the city has followed others across the nation in being friendlier toward pedestrian activity, especially with new housing and business developments in the downtown L.A. area. A bartender who was on his way to work when he took the liberty of walking across the street while the “Don’t Walk” sign was still blinking its final count.  He was fined $197 when he reached the street where he works.

In the Bay area, there are so many different ordinances that they are difficult to count and jaywalking laws are among these.  In San Francisco in particular, jaywalking is covered in city Transportation Codes, Traffic Codes, and Vehicle Codes (CA Vehicle Code 21955). Vehicle codes supersede both transportation and traffic codes, while traffic codes supersede transportation codes.  Sifting through these is a bit like walking through a complicated maze with no end.  According to state law, pedestrians have to use a crosswalk to cross the street, but only when they are crossing an intersection that has a “traffic control signal device” or is manned by a law enforcement official.

 

Facebook Co-Founder Sheds Light on Need for Immigration Reform

In the state of California, immigration issues have long remained at the forefront of many political debates.  Now, Mark Zuckerberg, made famous for being the founder of Facebook, has thrown his hat in by creating “Fwd.us.,” an advocacy group for immigration reform.  This announcement comes on the back of San Francisco State student Jose Vargas, who revealed just two years ago that he is an undocumented immigrant in the United States.

Many families are broken apart every day because of criminal charges levied against non-citizens living in California.  Depending on the class of immigrant that an individual falls into (legal alien, undocumented or illegal aliens), they may face deportation, loss of Green Card, or loss of eligibility to become an American citizen.  Many attorneys do not understand the intricacies of immigration law – which require knowledge of both criminal law and immigration law.  Yet, it is important to understand these complexities in order to protect your rights.

For example, if you are a legal alien (a person who has a Green Card, a Visa, or is an asylee or refugee), there are only certain crimes for which you may face deportation.  Among these are: crimes involving domestic violence, firearms, drugs, or “crimes of moral turpitude” (literally, crimes that are disgraceful morally).  Remember, however, that being accused of a crime neither means that you are guilty of that crime nor that you will be convicted of it.  Whether immigration reform occurs in the ways that Zuckerberg suggests, it is always important to understand what rights and privileges immigrants of any class enjoy under California law.