Good Faith Reliance on Bad Laws: Two New Cases

The United States Supreme Court decided two major Fourth Amendment cases recently that significantly change the way California police officers conduct criminal investigations.

Last year, in Missouri v. McNeely, a majority of the Court held that police officers may not conduct a warrantless blood draw of a person arrested for DUI, if the arrestee refuses to consent to the search. The Supreme Court rejected the government’s argument that a warrantless blood draw is justified in every DUI case because blood alcohol dissipates over time. This argument was baseless, the Court recognized, since officers can typically obtain a search warrant in short order.

Then came Riley v. California, decided this summer. In Riley, a unanimous Supreme Court ruled that police officers cannot search a cell phone without a warrant simply because the owner had the phone on his or her person at the time of arrest. The Court disagreed with the government’s position that a cell phone was like any other container (such as a wallet or pack of cigarettes) that police are currently permitted to search when taking someone into custody.

Based on McNeely, a person who is arrested today can seek to suppress (i.e., exclude from evidence) blood results if they were obtained without a warrant, and after the person affirmatively refused to provide the blood sample. And based on Riley, the results of a warrantless cell phone search conducted today will generally be suppressed, absent some other justification for the search (e.g., consent from the person arrested).

But what happens to evidence obtained in violation of McNeely or Riley if the search took place before those opinions were published?

Our state Court of Appeal ruled this week in two cases that defendants are not entitled to suppression as a remedy for pre-McNeely or pre-Riley searches. (See People v. Youn [dealing with warrantless blood drawns] and People v. Macabeo
[dealing with warrantless cell phone searches].)

Why should these defendants be treated so differently based on the date of the search? To understand the reason, you need to know that California appellate courts had allowed warrantless blood draws in DUI cases and warrantless cell phone searches before the United States Supreme Court disapproved them in McNeeley and Riley. You also need to realize that the purpose of the exclusionary rule is to deter police misconduct.

Based on this precedent, the Youn and Macabeo courts concluded that suppressing evidence for pre-McNeely/pre-Riley searches would not advance the purpose of the exclusionary rule. The courts opined that police officers had the right to rely on California precedent that upheld these types of warrantless searches, even though that precedent was later determined to be wrongly decided.

This was a predictable outcome based on another case, Davis v. United States. In Davis, the United States Supreme Court applied an identical analysis to forbid the suppression of evidence seized during an automobile search that was clearly illegal (based on US Supreme Court precedent decided after the search), but was justified at the time it was conducted under lower-court precedent that was binding in the jurisdiction where the search occurred. It would have been Youn or Macabeo

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It was a joke, stupid.

The Daily Journal published a story today that is almost too unreal to believe.

Kern County Deputy District Attorney Robert Murray was prosecuting a child molestation case. As part of his discovery obligations, he sent a transcript of the defendant’s police interview to the public defender representing the accused.

But Mr. Murray added two lines that were never spoken during the actual interview:

Officer: You’re so guilty, you child molester.

Suspect: I know. I’m just glad she’s not pregnant like her mother.

The DA later told the PD the addition was a joke. But the PD didn’t think it was funny. Nor did the judge, who dismissed the charges on the basis of prosecutorial misconduct. (The DA is currently appealing the dismissal and will undoubtedly win.)

As inexplicable as the dismissal might seem, what is even more shocking is that the State Bar is now prosecuting DDA Murray and trying to impose professional discipline against him!

This is sheer idiocy. It was obviously a practical joke, people. Most everyone (including yours truly) would say it was bad judgment on the part of the prosecutor, but to dismiss a child molestation case over it, and then try to impose State Bar discipline, is lunacy. This should have been left to DA management to handle.

And I’m not just defending Murray because that is something I might have done when I was a prosecutor.

Chill out, everyone.

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Proposition 47: The Safe Neighborhood and Schools Act

The Secretary of State confirmed yesterday that Proposition 47 — The Safe Neighborhoods and Schools Act — will come before the voters on November 4, 2014. The initiative would create monumental changes to California laws concerning simple drug possession and low-level theft crimes. Because of the breadth of the initiative, all criminal defense attorneys should quickly become familiar with its terms. It has the potential to affect a sizable portion of felony cases that are currently pending. It would also benefit tens of thousands of convicted felons in California who would become eligible to have their prior convictions reduced to misdemeanors.

I have added links to both the text of the initiative as well as a question-and-answer analysis of its most important provisions.

In short, except for a limited number of people with specified prior convictions for particularly egregious crimes, all felony offenses for simple drug possession will become straight misdemeanors. In addition, felony punishment will be greatly limited for low-level theft offenses (including commercial burglary, grand theft, petty theft with a prior, receiving stolen property, forgery and check fraud).

Not only would this initiative apply to cases currently pending in court, but people convicted years ago would benefit from it. For example, the initiative would allow someone convicted of felony cocaine possession decades ago to have his felony conviction redesignated as a misdemeanor.

The prospect of this initiative passing seem reasonably strong in light of the public’s apparent desire to avoid Draconian punishment for low-level offenses. It is worth remembering that Proposition 36 (the initiative that allowed drug treatment rather than incarceration for most drug possession offenses) passed by 61 percent in 2000. Another Proposition 36 (this one disallowing lifetime Three Strikes punishment unless the new offenses was serious or violent) passed by 53 percent in 2012. And Proposition 6, which would have greatly increased criminal penalties for a broad range of conduct, was defeated by 70 percent in 2008.

The greatest predictor of this initiative’s success will be the amount of money that can be raised by its opponents. In 2004, when I was a prosecutor, I served as a statewide campaign director of the No on Proposition 66 campaign. That initiative, which would have weakened the Three Strikes law far more significantly that Proposition 36 did eight years later, was only defeated (by 52.7 percent) because of a last-minute infusion of $3.5 million in campaign money by Broadcom billionaire Henry Nicholas, which purchased a flurry of last-minute television and radio ads starring Governor Schwarzenneger. It would be no easy task for the opponents to do the same here, particularly since this initiative (unlike Prop 66) would not result in the release of rapists and murderers from state prison.

At any rate, political prognostications aside, you can read the details here:

Proposition 47 Text

Proposition 47 Summary


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Voting Rights for Convicted Felons: Even Bob Filner

Today’s Los Angeles Daily Journal carries an Associated Press story detailing the felony plea bargain reached by former San Diego Mayor Bob Filner and our state Attorney General’s office.

After describing the terms of his sentence relating to the sexual harassment allegations that forced his resignation in August, the article states, “[a]s a convicted felon, Filner forfeits his right to vote.”

The article is incorrect.

It is a popular misconception that felons lose their voting rights upon conviction.

But in California, a felony conviction will only bar someone from voting one of under the following circumstances:

1) The person is serving a state prison sentence;

2) Probation was denied and the person is serving a county jail sentence pursuant to Penal Code section 1170(h); or

3) The person is on parole, mandatory supervision, or post-release community supervision.

And even as to this class of defendants, the right to vote is automatically restored once they are no longer subject to supervision (i.e., parole, mandatory supervision, or post-release community supervision).

The reason why Filner can still vote is that he was granted felony probation. Voting rights are not affected for individuals who are on felony probation — even if they are serving a jail term as a condition of probation or (like Filner) serving time on house arrest.

The Secretary of State has published this online guide detailing eligibility rules for those previously convicted of a felony.

If you have any questions about the collateral consequences of a felony conviction in California, including voting rights, please contact The Law Office of Brian Gurwitz, APC.

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Good News and Bad News: One Bill Signed, Another Vetoed

Yesterday, Governor Brown finished his review of legislation passed at the close of this year’s Legislative session. The good news is that he signed one bill that will allow a greater number of people to seek expungement of their felony convictions. The bad news is he vetoed another bill that would have expanded the ability to misdemeanor defendants to avoid a conviction by agreeing to a diversion program.

First, the good news. Under existing law, the only people who can seek expungement of their felony convictions are those who receive probation. (Note: contrary to popular belief, probation does not mean “no jail.” Felony probation often includes a jail term of up to one year.) If probation is denied, and the defendant is sentenced to prison or jail (usually for a term of 16 months or more), the defendant is not eligible for expungement. The new law (AB 651) allows defendants to seek expungement if probation was denied and they were sentenced to county jail. (These are the people with low-level felonies who would have gone to state prison before 2012, but who now serve their sentence locally under California’s new realignment law.) These defendants can apply for expungement either one or two years after completing their sentence, depending on the type of sentence the judge imposed. Expungement for these defendants is not automatic. The judge reviewing the expungement petition will have the discretion to grant or deny it.

AB 651 does not affect those who are denied probation and sentenced to state prison. They  still remain ineligible for expungement. If these defendants want to lessen the impact of their convictions, they must pursue the more complicated process of seeking a certificate of rehabilitation and/or a pardon from the Governor.

Unfortunately, though, the good news involving the expungement law was overshadowed by the Governor’s veto of SB 994. This bill would have required all district attorneys in California to enact diversion programs that would have allowed virtually all first-time misdemeanor defendants (but not those charged with DUI or domestic violence) to avoid conviction by participating in the program.

In Orange County, the DA’s office offers this type of diversion in many cases, so the impact of this veto won’t be as significant. But SB 994 would have allowed judges to grant diversion even when the district attorney didn’t want to allow it.

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Big Change to Narcotic Transportation Laws

A major change to our state’s drug trafficking laws took place last week.

Governor Brown signed AB 721, which changes the definition of “transports” in California’s two main drug trafficking statutes, Health and Safety Code sections 11352 and 11379.

Under the prior law, a defendant could face substantially increased penalties if it were shown that he transported narcotics, as opposed to merely possessing them for personal use. This was easy for a prosecutor to prove, since any defendant who was driving — or even walking down the street — was technically transporting whatever was in his possession.

Because transportation was so easy to prove, prosecutors sometimes charged the crime when the evidence of possession for sale was weak. A deputy district attorney could then be confident that even if a jury acquitted the defendant of possessing the drugs for sale, it would nevertheless convict on the transportation charge, which carries even more jail time than possession for sale.

Under AB 721, the concept of transportation was changed. The statutes now provide: “For purposes of this section, ‘transports’ means to transport for sale.'”

In other words, a defendant walking down the street with drugs in her pocket can no longer be convicted of transportation unless it is proved beyond a reasonable doubt that she was transporting the drugs for sale.

It seems to me that there is an ambiguity in the law that will have to be resolved by our appellate courts. Does a person “transport for sale” every time he moves drugs with the intent to sell them (e.g., when he is walking with drugs looking for a buyer) or does he have to be transporting it to facilitate a particular sale (e.g., walking to meet Joe, who had just sent a text message asking to buy some heroin).

The new law goes into effect on January 1, 2014, but it will likely be deemed retroactive to cover many cases with arrests that took place before — e.g., cases where charges are still pending on January 1, and even some cases where a conviction is not yet final for purposes of appeal.

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The Most Grateful Client

Clients can show gratitude to their counsel in a number of ways.

Some write heartfelt letters of appreciation at the conclusion of their case.

Others become great referral sources, spreading good words about you to their friends and family.

On occasion, a client might even name their child or pet after you.

But nothing says “thank you” like this:

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Kelly Thomas Case: Statement of Brian Gurwitz to Fullerton City Council

Comments of Brian Gurwitz before the Fullerton City Council

May 15, 2012

On behalf of my client, Cathy Thomas, I wanted to say a few words about today’s settlement.

First, my client is hopeful that it helps to continue the healing process that she and the citizens of this county are going through, including the many honorable members of Orange County’s law enforcement community.

To lose a son at the hands of rogue police officers is an indescribable horror. There is nothing this council could ever do to compensate her for the loss she’s suffered. But throughout the settlement discussions, my client and her family have been treated with great respect by the City’s representatives, including Dana Fox, who is representing the City in connection with Kelly Thomas’s death. She is grateful for the dignity she has been shown throughout this process, and for the personal comfort and support she’s received from members of this council, as well as Acting Police Chief Dan Hughes.

People in positions of power need to understand the importance of treating others with dignity. This principle is illustrated so well by the video that was made public last week. People can debate the legal significance of each officer’s conduct forever. But the one thing that no reasonable person can dispute is that Manuel Ramos’s utter disregard for Kelly Thomas’s dignity is precisely what set in motion the chain of events that led to his death.

This is the important lesson my client hopes people will always remember about this case.  If Manuel Ramos had treated Kelly with even the slightest degree of dignity, his death never would have occurred.

My client is not here today, and respectfully asks that she not be contacted by the media or the public with questions about this settlement. She will continue to appear at proceedings in the criminal case, and at public events honoring her son, but she is a deeply private person and prefers to avoid the understandable media spotlight that this case has generated.

Thank you.

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Obtaining Discovery More than 30 Days Before Trial

Under the California Penal Code, prosecutors are required to provide defendants with discovery to assist them in preparing their cases. Depending on the case, discovery can include things like police reports, 911 tapes, witness statements, and prior criminal convictions of prosecution witnesses.

When defendants complain that they have not received all of their discovery, many prosecutors (and some judges) contend that the district attorney doesn’t have to provide it until 30 days before trial. This argument is nonsense. Penal Code section 1054.5 allows defense attorneys to seek a court order for discovery if a prosecutor fails to comply with a defendant’s informal request within 15 days. The statute says nothing about the earliest time an informal request can be made.

The 30-day argument is based on a misunderstanding of Penal Code section 1054.7, which requires that prosecutors provide discovery “at least” 30 days before trial.

I say “misunderstanding,” because section 1054.7 simply governs when a prosecutor must provide discovery in the absence of any request. It does not limit a defendant’s ability to ask for it before a certain point, and then obtain a court order if the request is ignored for 15 or more days.

Amazingly, for more than 20 years following the enactment of these two discovery statutes, no appellate court opinion explained the interplay between them. That changed today. The Court of Appeal published a decision, Magallan v. Superior Court, soundly rejecting the contention that prosecutors can wait until a month before trial before they must comply with a discovery request.

The issue in Magallan was whether a magistrate erred in ordering the district attorney to provide material that would assist the defendant in seeking suppression of narcotics the district attorney intended to introduce at his preliminary hearing. The appellate court upheld the trial court’s order.

The opinion expressly declined to consider whether a magistrate has the power to make a broader order (i.e., for discovery beyond that which was reasonably necessary to assist the defense in litigating a suppression ruling). But it strongly implies that magistrates have – at the very least – a right to order prosecutors to turn over discovery that is “reasonably necessary” for defense counsel to review in order to represent their clients during the preliminary hearing.

And most critically, based on Magallan, prosecutors can no longer claim that they lack any duty to provide discovery during the period following the preliminary hearing and up until 30 days before trial.

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Prosecuting the Hecklegate 11

I’ve been an attorney practicing criminal law for over 16 years. Until last week, however, I had no idea that the Penal Code explicitly makes it a crime to disturb a meeting. I suspect I’m not the only California lawyer who has labored under such ignorance.

I learned about Penal Code section 403 when I read that the Orange County District Attorney has charged 11 University of California students with conspiracy to violate the statute. They are accused of being part of the UC Irvine Muslim Student Union’s planned effort to shout down Israeli Ambassador Michael Oren when he spoke on campus last year.

Here’s one of several YouTube clips showing what happened:

District Attorney Rackauckas’s press release concerning his decision to prosecute the Hecklegate 11 on misdemeanor charges can be read here.

As expected whenever the First Amendment is at issue, ACLU types are screaming that Rackauckas is causing the sky to fall. One lawyer breathlessly predicts that it will “intimidate students in Orange County and across the state and discourage them from engaging in any controversial speech or protest for fear of criminal charges.”

Oh, please.

If Rackauckas’s decision was so intimidating, you’d think that it would have caused the Hecklegate sympathizers to fear protesting it at his office headquarters. But that’s not the case:








The prosecution may well discourage some people from trying to shut down a lawful public speaking event, but I think that is Rackauckas’s point. If he accomplishes it, our society won’t suffer.

Other critics of this prosecution call it a waste of resources. These criticisms are more on the mark. Given that the University has already punished these students individually for their disruption, and collectively suspended the Muslim Student Union, the most rational thing to do would be leave it alone. I doubt that many people in the audience that day reacted to the protest by thinking: “I’m in the middle of a crime scene! A criminal conspiracy is unfolding around me!” There is no reason to give the protesters more attention a year later by alleging that their actions were a crime against the state.

The accusation of government officials “wasting tax dollars” is thrown around so frequently that it loses meaning. But I’ve been in the middle of these media cases. It is likely that hundreds of attorney and investigator hours have been spent researching and investigating the case, strategizing its legal and political implications in “10th floor” meetings where Rackauckas’s executive suite is housed, and calling witnesses before the grand jury. Many more hours will be spent in court hearings, since the defendant (as protestors are wont to do) will take up a great deal of court resources in an effort – which will undoubtedly fail – to show that the prosecution violates their constitutional right to free speech and/or that it should be dismissed since they are the hapless victims of selective prosecution. A judge, multiple bailiffs, and court staff will be prevented from attending other court business during every hour that this case is heard.

If this matter were put to a public referendum, is there any way the voters would choose to spend their tax dollars seeing it through, as compared to avoiding the layoff of a firefighter or teacher? No way. While this vote will never take place, the comparison isn’t mere hyperbole. The annual salary of a public servant is substantially less than what this prosecution will likely cost before its conclusion.

Disproportionate costs are sometimes unavoidable in the criminal justice system. For example, when a community lunatic is cited for stealing a ketchup bottle from a school cafeteria, the prosecution can’t simply dismiss the case because the defendant wants his jury trial. The cost of the trial may be extravagant in comparison to the harm society suffered, but a prosecutor can’t simply decline to prosecute petty theft cases, or dismiss them whenever a defendant demands that the prosecution prove its case.

But this isn’t one of those unavoidable situations. Unlike petty theft, heckling is conduct that doesn’t typically result in a criminal prosecution. The decision to prosecute this case, knowing full well the resources it would cause our overburdened justice system, was quite intentional.

Will the Board of Supervisors will be less sympathetic to Rackauckas next time he comes before them, claiming that his office needs an infusion of funds to avoid layoffs that would jeopardize public safety?



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