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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Vote for death… I’ll buy you a beer!

Twice per week (on Wednesdays and Fridays), the California Supreme Court issues a notice on its Web site explaining whether any opinions will be published on the next court date. The notices summarize the issue presented in each case, but they do not indicate how the court will rule. You have to wait with bated breath for the opinion.

I laughed out loud when I read today’s posting.

Our Supreme Court will rule, on Monday at 10:00 a.m., whether Death Row inmate Curtis F. Price will get a new trial based on his allegation that “the prosecutor in [his] case improperly tampered with a sitting juror by sending her alcoholic drinks and money and telling her to return a guilty verdict.”

I’ll keep you posted….
Update:

Sorry, Curtis. No new trial for you. The prosecutor said it was all a big joke, and that the juror never heard it. The referee presiding over his habeas corpus hearing agreed. The Supreme Court unanimously upheld the referee’s findings. Here is the opinion.

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Writer’s Block (And a Fourth Amendment Cartoon)

Dear Jamison Koehler:

Thank you so much for featuring me in your Blawg Review this week. You’ve asked me to write a brilliant post before you publish it tomorrow. I’ve thought of several great ideas, including: (1) the top 20 ways my perspective has changed since I went from overzealous prosecutor to co-dependent defense attorney, (2) why Andrew Gallo’s conviction for murdering Angels’ pitcher Nick Adenhart was a foregone conclusion, given California’s screwy DUI homicide laws, and (3) why your recent pro-colonoscopy post will likely result in you saving lives, but losing potential clients.

But alas, the words aren’t flowing today. So rather than write something unworthy of my enormous potential, I bring you the following cartoon that illustrates how the Fourth Amendment often works in the courtroom:

P.S. While the cartoon is funny, I laughed even harder at a comment on Youtube. Someone named Auggie97 wrote: “If you think officer safety is funny, cops do get shot a lot more often then defense lawyers.” Get a grip, Auggie97. It’s a joke. And while you’re at it, work on your spelling and sentence structure. Cops do get shot more often than defense attorneys, but not because anyone thinks officer safety is funny.

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Bank Robber Unmasked

Imagine you’re a juror in a case involving numerous bank robberies committed close in time and in the same community.

The first witness is a bank security employee who explains that a surveillance video captured an image of the perpetrator during one of the crimes. The prosecutor puts up a large mounted poster. It looks like this:

 

 

 

 

 

 

 

 

You look over at the defendant sitting next to his lawyer. He’s dressed in his Sunday best in the courtroom, but he looks like the same guy to you. Same chin, same wide nose and prominent lips.

The next witness is the defendant’s mother. She testifies, very reluctantly, that she saw the image on the news and called the police to report that she believed her son was the one responsible for the crimes. You probably assume that she knows her son is a crook and a drug addict. You imagine that if he were living a decent life, his mother would never suspect him of such a serious crime.

The prosecution next parades in several witnesses, all of whom confidently identify the defendant as the guy who did the robbery.

The final prosecution witness is the police officer who arrested the defendant. He testifies that the defendant did or said something incriminating when officers contacted him. Maybe he was evasive about his whereabouts, maybe he lied about some fact.

The defense attorney puts on what you think to be a weak case. Maybe a few witnesses testify that they were hanging out with the defendant when one or more of the robberies took place. But they seem like dirtbags who would readily lie for their friend.

The prosecutor’s closing argument is very strong. He talks about facts and common sense. The defense attorney’s was just the opposite. All he does, you think, is talk about reasonable doubt. His client has no solid alibi. And there is simply no evidence that someone else – someone who looks exactly like his client – committed the crime.

Now imagine you retire to the jury deliberation room. You and 10 other jurors want to convict. But one dissenting voice says: “This isn’t enough evidence for me. Who knows? Maybe the guy who did the crime was really a white man who was wearing a mask! And maybe the mask just happened to look so similar to the defendant that his own mother, and all the eyewitnesses, made a mistake!”

The other jurors tell the dissenter that he is a moron. He is reminded how the prosecutor emphasized during closing argument that a doubt must be reasonable. The judge’s own instruction said it cannot be “mere possible or imaginary doubt.”

Does this scenario sound far-fetched? Would you be swayed by the dissenter?

That trial easily might have happened. The real bank robber captured in the grainy photo at the top of this post is Conrad Zdzierak. Conrad is anything but black:

 

 

 

 

 

 

 

 

 

Here’s the mask Conrad used:

 

 

 

 

 

 

 

The details about his case can be read here. The short version is that Conrad’s girlfriend heard about the robberies, found the mask, and found cash stained with dye from one of those exploding money rolls that banks used. She turned him in. He’s pled guilty and “apologizes to everyone,” according to his lawyer.

Prospective bank robbers reading this blog can purchase the mask from SPFX Masks. They’re expensive, but they beat the hell out of ski masks or – God forbid – bandanas.

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