Blog
CALL US FOR A FREE CONSULTATION
Call Us831-426-5800 Call Us831-566-4357
303 Potrero Street, Suite 30, Santa Cruz, CA 95060
Subscribe to this list via RSS Blog posts tagged in criminal defense

Posted on in Shoplifting, Robbery & Burglary

San jose theft crimes lawyerDoes profiling exist? It would be very difficult to argue that it does not. However, there are various forms of profiling; some are discriminatory while others can be useful tools. When it comes to shoplifter profiling, even to FBI agents will agree that, when appropriately used, profiling can be used to catch and prevent theft. However, if incorrectly practiced for shoplifting prevention, the profiling can be leveraged against a business in a court of law.

Useful Profiling

Without conscious decision, many of us often profile others. The behavior is a tool that is ingrained in us, perhaps as a survival instinct. Typically, profiling is directly linked to the behavior characteristics of others. For instance, if a stranger is in a dark alley hiding behind a dumpster and they pop out and run towards you, the first thought that comes to mind is not often that the approaching stranger wants a hug. An instinctual decision is made that is based on previous behavior, perhaps what they were wearing, and any other factors you can decipher at the time. If this person mugs you, you, in turn, may be leery of other people hiding behind dumpsters in dark alleys in the future, regardless of what their real intent may be.

...

cell phone evidence, Santa Cruz criminal defense lawyerAn overwhelming majority of adults own cellular devices. They are now ingrained in every facet of daily life. Our cell phones essentially do it all, from social networking, using a calculator, alarm clock, or calendar, to making phone calls and emails and getting directions on a GPS, or communicating via text message. Because we rely so heavily on them, it is only reasonable that, in certain situations, evidence that you need is contained in that device. Can we use that information in as defense in a criminal case? The short answer is yes we can.

How Does It Work?

The first step is to save the information. Screenshots of social media posts, copies of text messages, as well as any email communication is all a part of the evidence that you could potentially use. The first step is to email them all to yourself--not just what the other person said, but also what you said. The entire conversation or incident is required to show what occurred. Email them to yourself and perhaps a friend, family member, or lawyer that you trust to have several copies of your evidence.

...

A three judge panel in Fresno County has ruled that the use of the map app on an iPhone is prohibited under California's traffic laws. A 58-year-old man who works at Fresno State University says that he was caught in traffic in early January 2012.

While stuck in bumper to bumper traffic on California 41 in Fresno, he says that he checked his map. But the map was not a paper map, but a map app on his iPhone. A California Highway Patrol motorcycle officer was right there, and pulled the driver over to issue a ticket for unlawful use of a cellphone in a motor vehicle.

The man challenged the traffic ticket in superior court arguing that he was not talking on the hand held cellphone, and further arguing that he was not texting while driving. He reportedly brought a paper map into court to show that use of a paper map is more cumbersome than the smartphone app that he allegedly had been using.

...

The vast majority of criminal cases in the United States resolve with some sort of plea. Many defendants charged with a crime choose to go to court without an attorney and enter a guilty plea of some sort. Other defendants enter negotiated plea agreements.

Often, a plea agreement can minimize the damages that a criminal case can impose against a defendant, but criminal laws are complex and the collateral consequences of a criminal conviction can vary widely based upon the nature of the allegations.

The United States Supreme Court ruled this week that a defendant's right to effective criminal representation extends to any plea agreement or plea offer that a prosecutor may present. The court essentially ruled, in a split decision, that plea agreements are an important aspect of criminal defense.

...

The man's girlfriend was killed when the cannon discharged. Authorities have not identified the 38-year-old woman, who reportedly died of shrapnel wounds after the device exploded in the community of Potrero. Three other adults and a 4-year-old girl apparently were also inside the home at the time of the blast. The three other adults and the child were not injured. The man who has been arrested did suffer shrapnel wounds and received treatment at the hospital.

Authorities say that the 39-year-old man was arrested as police investigate the woman's death related to the incident. Authorities are apparently interrogating the man, although authorities have not found any motive to suggest any possible criminal intent. Officials claim that the man made a statement and law enforcement says they want to corroborate the man's story, "based on the evidence [investigators] find at the scene."

Authorities acknowledge that the incident may have been just a terrible accident.

...

During the same week that the U.S. Supreme Court issued its decision to leave eyewitness identification analysis alone, the high court threw out a murder conviction because prosecutors did not disclose that an eyewitness who testified against the defendant at trial initially told police that he could not identify the killer. For nearly 50 years, prosecutors have known that the Constitution requires that the state must turn over material evidence that prosecutors have that may be favorable to the criminal defense.

In overturning the criminal conviction, Chief Justice John Roberts writes, "We have observed that evidence impeaching an eyewitness may not be material if the state's other evidence is strong enough to sustain confidence in the verdict." Eight justices on the Supreme Court agreed in Tuesday's ruling that the prosecutor's failure to disclose the evidence in the murder case violated the defendant's rights, requiring a reversal of the conviction. Justice Clarence Thomas was alone in dissent.

The case arose from allegations surrounding a 1995 shooting. Five people were killed during an armed robbery in a New Orleans home. During the trial, an eyewitness told the jury that he had been "face to face with [the defendant] during the initial moments of the robbery." The Supreme Court says that testimony was the only evidence the prosecutors had linking the defendant to the crime.

...

In January the California Supreme Court ruled that a police search of a cell phone after an arrest is constitutionally sound. This blog carried a story on the ruling on January 21. The January ruling involved an appeal of a case where Ventura County law enforcement searched a man's cell phone for text messages after the man was arrested on suspicion of committing a California drug crime.

The January ruling may not be the end of the story. Monday the California Assembly unanimously approved a measure aimed at requiring law enforcement to seek a valid warrant before they can lawfully search the contents of a cell phone. However, the Assembly measure differs from a bill that passed in the Senate last month. The Assembly measure waters down the warrant requirement by allowing law enforcement to conduct a warrantless search if they believe an exception applies.

The exceptions that would allow police to conduct a warrantless search under the Assembly bill would involve situations where police believe the search is necessary to prevent injuries, to stop the destruction of evidence or to prevent a crime from occurring.

...

The United States Supreme Court has not taken a hard look at the reliability of eyewitness testimony since 1977. The Court has agreed to revisit the issue in November. Since the time the issue was before the Court, more than 2,000 studies have been published in professional journals regarding the reliability, or lack of reliability, concerning eyewitness identifications. The nation's highest court previously ruled that judges can exclude some eyewitness identifications if the testimony is unreliable.

The difficulty with the current state of the law on the subject is highlighted by the number of wrongful convictions that have been obtained based upon mistaken identity. Criminal defense attorneys in California and across the country have regularly argued and researchers have compiled a long list of studies indicating that of the roughly 75,000 eyewitness identifications used in the country each year, about one-third are simply wrong.

Research shows that eyewitness identifications can lead to wrongful convictions. Many wrongfully convicted defendants have been exonerated by DNA analysis across the country. Of the first 250 exonerations, researchers say 190 cases involved the mistaken testimony of an eyewitness. Witnesses on those cases reportedly were certain they had identified the right person. One was "120 percent sure," reports the New York Times. Another witness had absolutely no question the wrongfully convicted defendant was involved.

...

The issues were recently before the First District Court of Appeal in San Francisco in regard to a man charged with failure to provide a DNA sample after an arrest on suspicion of arson in 2009. In January 2009, California law began requiring any person arrested for any felony to submit a DNA sample. The law requires the sample to be provided "immediately following arrest, or during the booking . . . process or as soon as administratively practicable after arrest."

The appellate court struck down the law as unconstitutional. The court says a person arrested for a felony, but has not appeared before a judge for "a judicial determination of probable cause" is more like an ordinary citizen than a prisoner.

Ordinary citizens, cloaked in the presumption of innocence, have the full expectation of privacy, free from unreasonable governmental intrusions. The court says convicted prisoners have a "limited expectation of privacy" under the Fourth Amendment.

...

Governor Jerry Brown has signed a new measure into law making it harder for the state to convict a person accused of a crime based upon the testimony of jailhouse informants. Criminal defense attorneys, civil rights advocates and at least two district attorneys in the state supported the measure. Governor Arnold Schwarzeneggar vetoed the same proposal twice during his administration at the urging of the California District Attorneys Association.

Our criminal justice system has a variety of important safeguards built in to protect a person accused of a crime from being wrongfully convicted. Every person has the right to a fair trial. Our system places the burden on the prosecutor to prove allegations beyond a reasonable doubt in order to get a conviction. But individuals accused of a crime also have the right to a complete defense.

Among the safeguards the law affords Californians accused of a crime is the right to confront and cross-examine witnesses at trial. But what if a trial witness is unreliable? In 2004, the California Senate created a statewide commission to look into the causes of wrongful convictions in the state.

...

The California three strikes law actually increases a person's exposure to significant prison time before the third strike. The number of people crowding California prisons has received a high level of scrutiny since the U.S. Supreme Court ordered the state to reduce the overcrowding of our state prisons.

Most Californians know the three strikes law allows prosecutors to seek a mandatory 25-year-to-life sentence in allegedly qualifying cases. Currently, roughly 8,700 are serving prison time on a third strike under the law. However, 32,390 people are serving increased sentences under the second strike provision of the law. Second strike prisoners account for nearly 20 percent of the state's prison population.

The provision under the three strikes law related to second strikers allows prosecutors to seek double the prison time for a second strike conviction. Barry Krisberg, a researcher at UC Berkeley's institute on law and social policy says the significance of the second strike provision "is having an enormous impact on our prison population, and many second strikers are serving more time than third strikers, but when people talk about the policy of reforming three strikes, nobody wants to touch the second strike."

...

Over the long holiday weekend, many government offices across the country were closed down in observance of our nation's independence. At the same time, at least one courthouse drew national media attention as the murder trial of Casey Anthony wrapped up and the jury began deliberations.

Santa Cruz criminal defense attorneys know that the constitutional principles that guarantee a defendant the right to a fair trial include the right to a fair and impartial jury. To that end, the judge in the Anthony murder trial sequestered the jury early on. The trial concluded over the holiday weekend and the jury began its deliberations on the Fourth of July. Tuesday, after roughly 11 hours of deliberations the jury let the judge in the case know that a unanimous verdict was reached.

Casey Anthony was accused of murder in the June 16, 2008 death of her 2-year-old daughter. She faced a number of other serious charges in related to the 2008 incident. At trial, she chose not to testify in her own defense.

...

In March, a California appeals court overturned the murder conviction of a man based upon the trial judge's jury instructions. A seasoned Santa Cruz criminal defense attorney knows that misleading jury instructions in a criminal case can deny a defendant the right to a fair trial.

The First District Court of Appeal overturned the murder conviction of a San Francisco man, concluding the definition of the lesser offense of manslaughter at trial may have misled the jury. The California Supreme Court will now weigh the matter. The high court recently agreed to review the appellate court ruling.

Prosecutors had claimed the man stabbed a 28-year-old woman to death in front of her children in October, 2000. The man was charged with murder and the case went to trial before a jury in 2008. The man argued to the jury the allegations could only support a charge of voluntary manslaughter. A conviction for voluntary manslaughter would have only exposed the accused to a sentence of three to eleven years. The man ultimately was convicted of murder and sentenced to 16 years to life in prison.

...

In 2009, a Watsonville man entered a guilty plea to felony gun charges. The 37-year-old man is a Mexican immigrant married to a U.S. citizen. After entering the plea, the man learned that the conviction may lead to deportation. He attempted to withdraw his plea and was denied.

Last year the United States Supreme Court issued its ruling in a separate case mandating that a criminal defense attorney has a duty to inform defendants of possible ramifications that a criminal conviction may have on the defendant's immigration status. On March 11, 2011, the 9th U.S. Circuit Court of Appeals vacated the Watsonville man's guilty pleas based upon the U.S. Supreme Court precedent.

The 37-year-old man's case has been remanded to the U.S. District Court in San Jose. The man has served nearly the entire balance of a two year prison sentence related to the original plea agreement. He reportedly was scheduled to be released from the sentence on May 10. Now the matter returns to the District Court for determination of whether the case will be retried.

...

An alleged accomplice to the burglaries already pled guilty to one count of commercial burglary and possession of a stolen car in the matter. The alleged accomplice was sentenced to county jail time after conviction.

After of a rash of alleged break-ins at vacation properties and neighboring residences, law enforcement received a report of a suspicious vehicle near the Lancaster Estate Winery near Healdsburg, California. Police responded and found the 42-year-old defendant's alleged accomplice in a car containing alleged stolen property from the break-ins.

The alleged accomplice reportedly told police that the defendant had helped the accomplice in burglarizing the properties. The alleged accomplice told police that the defendant was armed with a Colt .45 and was not going to go down without a fight.

...
Back to Top