tag:blogger.com,1999:blog-67968998765519182502024-03-12T18:09:56.831-07:00Shades of Doubt"You never really understand a person until you consider
things from his point of view; until you climb into his skin
and walk around in it." - Atticus Finch
Justin E. Sterlinghttp://www.blogger.com/profile/12854776446167678743noreply@blogger.comBlogger114125tag:blogger.com,1999:blog-6796899876551918250.post-30603224551214466392014-01-09T11:30:00.005-08:002014-01-09T11:30:52.150-08:00New Laws For 2014The beginning of a new year means new laws that will take effect in California. Some of the laws that are of particular interest to the criminal defense bar relate to changes in California's gun laws. For a complete list of new statutes for 2014, click <a href="http://www.claraweb.us/wp-content/uploads/2013/12/2014-New-Statutes-Byers-Version-Number-06-Dec-27-2013-9-24-PM.pdf" target="_blank">HERE</a>.<div>
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1. Penal Code section 32310 and 32311: In addition to the current restrictions on manufacturing, importing, selling, giving and lending large capacity magazines, the law now prohibits buying and receiving to the list of prohibited activities. Additionally, the law now prohibits a person from manufacturing, importing, selling, giving, lending, buying or receiving “large capacity magazine conversion kits.” A “large capacity magazine conversion kit” is a device or combination of parts of a fully functioning large-capacity magazine, including, but not limited to, the body, spring, follower, and floor plate or end plate, capable of converting an ammunition feeding device into a large-capacity magazine. Possession of large capacity magazines and large capacity magazine conversion kits are still not illegal. <div>
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2. Penal Code section 25100: With certain exceptions, if you keep a loaded firearm in your residence, and a person prohibited from possessing firearms gains access to the firearm and that person hurts him or herself, someone else or carries the firearm into a public place, you can be prosecuted. In addition, you can commit “criminal storage in the third degree” if you keep a loaded firearm within any premises where you know or should know a child is likely to gain access to the firearm. </div>
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3. Penal Code section 25135: If you live with someone and you know or have reason to know the other person is prohibited from possessing, receiving, owning or purchasing a firearm, you must keep the firearm locked up (with a gun safety device or in a locked container) or keep it on your person or in close proximity. </div>
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4. Penal Code section 28220: If the California Department of Justice cannot determine whether a person is prohibited from owning or possessing firearms as a result of a criminal case, mental health commitment, or has attempted to purchase a handgun within the last thirty days, the DOJ can only delay the transaction for up to thirty days while it tries to figure out whether the person is prohibited from possessing or receiving firearms. After thirty days the licensed dealer may release the firearm but is not required to do so. </div>
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5. Penal Code sections 28210 and 28215: A dealer is required to provide a copy of the Dealer’s Record of Sale (DROS) to the firearm purchaser. </div>
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6. Penal Code sections 29810, 29825, 29830, 33870: When a person is prohibited from owning and possessing firearms by a court order with a specified date of termination, that person has the option to store their firearms with a licensed firearm dealer. </div>
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7. Health and Safety Code sections 8100 and 8105: Those who communicate serious threats of physical violence against an identifiable victim to a psychotherapist are prohibited from owning and possessing firearms for five years. The psychotherapist is required to report the threat to law enforcement within 24 hours. A person prohibited this way may petition for the restoration of their firearm rights.</div>
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8. Welfare and Institutions Code section 8102: When firearms are seized at the scene of a mental health disturbance, a prohibited person can elect to have their firearms transferred or sold to a licensed firearm dealer.</div>
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Justin E. Sterlinghttp://www.blogger.com/profile/12854776446167678743noreply@blogger.comtag:blogger.com,1999:blog-6796899876551918250.post-63813346001914271652013-12-18T14:14:00.000-08:002013-12-19T11:06:34.892-08:00Closing Out 2013To all of our friends, colleagues, clients and family, SEASONS GREETINGS AND HAPPY NEW YEAR! May all your wishes come true in 2014! As for us, 2013 was full of changes, accomplishments, memories, and victories here at our firm, both big and small.<br />
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The year began with some great victories, highlighted by a 2-week DUI trial at the Metro Courthouse. Our client's medical license was on the line. The jury hung 6-6 and we were ultimately successful at getting the court to dismiss the entire case, despite the prosecutor's desire to have a 2nd trial.</div>
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Throughout 2013, <a href="http://www.sterlingdefense.com/" target="_blank">our firm</a> achieved countless great results for clients, including the dismissal of domestic violence charges, drug charges, and federal bank fraud charges. We also obtained a finding of factual innocence for our client charged with cocaine possession. These motions are hard to come by so it was an absolute thrill availing our client to this kind of remedy, via the <a href="http://www.sterlingdefense.com/practice-areas/clean-state-project/" target="_blank">Clean Slate Project.</a> </div>
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In the summer, we tried a multi-count sex case where our client was accused of aggravated sexual battery. After a one week trial at the Alhambra Courthouse, we were able to secure a hung jury. The jury hung 7-5 in favor of NOT GUILTY. The court ultimately granted our motion to dismiss and we were able to prevent our client from being convicted of a sex offense. While 2 of our cases went to verdict, we also had over 5 cases dismissed at trial, prior to jury selection in 2013!</div>
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Throughout the year, along with our diverse caseload, Mr. Sterling participated in other projects while also giving back to his community. Our firm was featured in the <a href="http://www.ourventurablvd.com/November-2013/Justin-E-Sterling-Managing-Attorney-Founder/" target="_blank">November issue of Ventura Blvd. Magazine </a>where the office was profiled as one of the San Fernando Valley's preeminent professional advisors. Mr. Sterling was approached in 2013 to participate in a legal documentary featuring criminal defense attorneys in Los Angeles. Footage was shot at our office and the project remains in development and is being produced by the people that brought you "Selling LA" and "Selling New York."</div>
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One of the most fulfilling events we were apart of was being a sponsor and donating to "Memo's Silent Auction." Many of you may have heard about the murder of Guillermo "Memo" Perez in Venice back in November. He was a line cook at Mercedes Grille in Marina del Rey and he left behind a wife and young baby. A truly tragic situation yet it was so uplifting to see how many local business owners, artists, and neighbors responded by offering their support.</div>
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We were joined this year by associate Maxwell Wright, our jack-of-all-trades, who managed his own misdemeanor and felony caseload while propounding extensive discovery for one our office's civil rights cases. Max obtained countless great results while honing his skill as a criminal trial lawyer. So well in fact that we lost him to the Los Angeles County Public Defender's Office in May! He was a huge asset and will no doubt bring compassionate and aggressive advocacy to his clients in the public sector.</div>
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2013 was the year of new relationships. We formed new alliances and have developed long-lasting relationships with not only legal professionals and other attorneys, but with treatment centers, addiction specialists, and counselors. It is amazing what they have done for our clients who suffer from addiction related illnesses. We have seen true success stories in this area.</div>
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Lastly, we closed out the year by expanding and moving our offices to two exciting new locations in <a href="http://www.sterlingdefense.com/contact/" target="_blank">Encino and Beverly Hills</a>. We take tremendous pride in the work that we do, so thank you for taking the time. We can't wait to share some of the things we're working on for 2014 - be sure to check back or you can find us on <a href="https://www.facebook.com/SterlingDefense" target="_blank">Facebook</a> or <a href="http://www.sterlingdefense.com/" target="_blank">CLICK HERE</a>. From our family to yours - Happy Holidays!</div>
Justin E. Sterlinghttp://www.blogger.com/profile/12854776446167678743noreply@blogger.comtag:blogger.com,1999:blog-6796899876551918250.post-9520517528697071312013-10-21T20:28:00.001-07:002013-10-21T20:32:44.824-07:00Named Valley's Trusted Advisor<h1 style="font-family: Helvetica, Arial, sans-serif; font-size: 36px; font-weight: lighter; margin-bottom: 0.25em; margin-top: 0px; text-transform: uppercase;">
<a href="http://www.sterlingdefense.com/">JUSTIN E. STERLING, MANAGING ATTORNEY/FOUNDER</a></h1>
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<a href="http://www.sterlingdefense.com/attorney-profiles/justin-e-sterling/">LAW OFFICES OF JUSTIN E. STERLING</a></h3>
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WRITTEN BY LAURA WATTS PHOTOGRAPHED BY REMY HAYNES AND CATHRYN FARNSWORTH</div>
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<em>16501 Ventura Blvd., Suite 400 in Encino<br /><a href="http://sterlingdefense.com/">sterlingdefense.com</a></em><br />
<a href="mailto:Justin@sterlingdefense.com" style="color: #b5392d; outline: none; text-decoration: none;">Justin@sterlingdefense.com</a></div>
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<a href="http://www.sterlingdefense.com/">The Law Offices of Justin E. Sterling </a>is a top-rated law firm committed to the exclusive practice of criminal law. After years of trial work in the public sector, Justin founded his own law firm in 2011. He brings high-end, aggressive criminal representation to those facing prosecution by state and federal authorities. Justin is an accomplished criminal trial lawyer who represents individuals and businesses facing the full range of felony and misdemeanor charges. Known for offering his clients exclusive white glove treatment while navigating them through the legal process, Justin’s expertise is highlighted by his more than 60 jury trials conducted in courts throughout California.</div>
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What’s most rewarding about your work?</h3>
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“Criminal defense attorneys are in a unique position to change lives through the practice of law. Whether it’s advocating for rehabilitation and treatment for a drug addicted or mentally ill client or simply being a positive force for somebody who has never faced the criminal justice system … at the end of the day, we are in a helping profession—and there is a great deal of satisfaction in that.”</div>
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"IT DOESN’T FEEL LIKE WORK TO ME, BECAUSE I AM DOING WHAT<br />
I LOVE TO DO.”</div>
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What is your area of specialty?</h3>
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“I only practice criminal defense. Under the umbrella of that specialization, I represent people who have been accused of every conceivable crime, whether it’s DUI, domestic violence, drug offenses, business-related white-collar crime, or even murder.”</div>
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Who is your typical client?</h3>
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“My clients really come from all walks of life—a college student who has been arrested for a first-time DUI; an individual who has been in and out of the system and is facing life in prison; working professionals who find themselves in unfortunate circumstances; high-profile clients from the entertainment and sports industry or business world. The only thing that is typical is that, at their core, most of my clients are good people who have made a mistake.”</div>
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What is the biggest benefit that your clients gain from working with you?</h3>
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“My experience and local knowledge. The fact that I am in court every day and have tried more cases than most lawyers twice my age, I think, is pretty uncommon. But it’s a quality that undeniably gives my clients an advantage. I am proud to be a native Angeleno, and my clients benefit from that fact due to the relationships that I have formed in and out of the courtroom. When you combine these relationships with hard work and the skill-set necessary to be an effective and aggressive trial lawyer, my clients have the advantage over someone who is virtually unknown and lacks any real depth of criminal trial experience.”</div>
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What skills are most necessary to be successful in your field?</h3>
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“Compassion. To remain a powerful advocate in court, you must have compassion and empathy for your client, understanding what has brought them to this point. Aside from that, a genuine love for what you do. This type of work often requires taking on the unpopular client or an unpopular case—perhaps a client who has been accused of an atrocious crime. At the end of the day, defense work is not for everyone, and to be effective at what you do at the highest level really requires you to have a passion for it. It doesn’t feel like work to me because I am doing what I love to do.”</div>
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Tell us about your new location.</h3>
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“When I launched my practice in 2011, I opened my office in Century City. However I always envisioned being in the Valley—I am from here and live in Studio City. I’m raising my family just minutes from where I grew up, and my parents live down the road. For me, it’s full circle. While my cases still take me all over Los Angeles and the surrounding counties—and to even other parts of the state—we’re thrilled about our new office location in the heart of Encino’s business center on Ventura Boulevard. I still maintain a presence ‘over the hill’ with a smaller office in Beverly Hills; however, Encino is our new permanent home. I am hopeful it will be the nucleus of our law firm for a long time to come.”</div>
Justin E. Sterlinghttp://www.blogger.com/profile/12854776446167678743noreply@blogger.comtag:blogger.com,1999:blog-6796899876551918250.post-14849252518406654872013-08-19T20:47:00.001-07:002013-08-19T20:47:42.197-07:00Sheriff’s Deputies Charged with AssaultThe Santa Barbara District Attorney’s Office has filed felony charges against two Sheriff's custody deputies for unnecessary use of force. According to the legal filing, the formal charge is “assault by public officers.” It stems from a June 17 incident in which the deputies, Robert Kirsch and Christopher Johnson, allegedly “assaulted and beat” an inmate named Charles Alonzo Owens at the Santa Barbara County Jail.<div>
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According to a press release issued by the Sheriff’s Office, the incident was brought to light by the Public Defender in a June 18 complaint. At that point, the Sheriff’s Office investigated and passed on its findings to the DA. Sheriff Bill Brown said in a statement, “The behavior alleged in the criminal complaint is contrary to the high standards of the Santa Barbara County Sheriff’s Office. I am saddened by these allegations that do not reflect the conduct and actions of the vast majority of the hundreds of men and women of the Sheriff’s Office, who dedicate their lives to protecting and serving others.”</div>
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The deputies have been placed on administrative leave. Arraignment is scheduled for August 30 and will be prosecuted by Deputy District Attorney Anthony Davis.</div>
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<a href="http://www.sterlingdefense.com/">The Law Offices of Justin E. Sterling</a> currently represents 4 separate plaintiffs in state and federal court for claims of excessive force and police brutality. These claims stem from criminal allegations where our office represented the plaintiffs in criminal court. All cases resulted in the dismissal of the criminal allegations. If you or a loved one have been the target of misconduct by the police, contact our office today - <a href="http://www.sterlingdefense.com/">CLICK HERE.</a></div>
Justin E. Sterlinghttp://www.blogger.com/profile/12854776446167678743noreply@blogger.comtag:blogger.com,1999:blog-6796899876551918250.post-58581133699899487772013-07-19T11:33:00.001-07:002013-07-19T11:33:42.748-07:00U.S. Reviewing 27 Death Penalty Convictions For FBI Forensic Testimony ErrorsAn unprecedented federal review of old criminal cases has uncovered as many as 27 death penalty convictions in which FBI forensic experts may have mistakenly linked defendants to crimes with exaggerated scientific testimony, U.S. officials said.<div>
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FBI officials discussed the review’s scope as they prepare to disclose its first results later this summer. The death row cases are among the first 120 convictions identified as potentially problematic among more than 21,700 FBI Laboratory files being examined. The review was announced last July by the FBI and the Justice Department, in consultation with the Innocence Project and the National Association of Criminal Defense Lawyers (NACDL).</div>
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The unusual collaboration came after The Washington Post reported last year that authorities had known for years that flawed forensic work by FBI hair examiners may have led to convictions of potentially innocent people, but officials had not aggressively investigated problems or notified defendants.</div>
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At issue is a once-widespread practice by which some FBI experts exaggerated the significance of “matches” drawn from microscopic analysis of hair found at crime scenes.</div>
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Since at least the 1970s, written FBI Laboratory reports typically stated that a hair association could not be used as positive identification. However, on the witness stand, several agents for years went beyond the science and testified that their hair analysis was a near-certain match. The new review listed examples of scientifically invalid testimony, including claiming to associate a hair with a single person “to the exclusion of all others,” or to state or suggest a probability for such a match from past casework. Whatever the findings of the review, the initiative is pushing state and local labs to take similar measures.</div>
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Separately, FBI officials said their intention is to review and disclose problems in capital cases even after a defendant has been executed.</div>
Justin E. Sterlinghttp://www.blogger.com/profile/12854776446167678743noreply@blogger.comtag:blogger.com,1999:blog-6796899876551918250.post-79872700393810819062013-07-14T20:21:00.000-07:002013-07-14T20:21:08.103-07:00Fruitvale StationWinner of both the Grand Jury Prize for dramatic feature and the Audience Award for U.S. dramatic film at the 2013 Sundance Film Festival, director Ryan Coogler's FRUITVALE STATION follows the true story of Oscar Grant (Michael B. Jordan), a 22-year-old Bay Area resident who wakes up on the morning of December 31, 2008 and feels something in the air. Not sure what it is, he takes it as a sign to get a head start on his resolutions: being better son to his mother (Octavia Spencer), whose birthday falls on New Year's Eve, being a better partner to his girlfriend Sophina (Melonie Diaz), who he hasn't been completely honest with as of late, and being a better father to Tatiana (Ariana Neal), their beautiful four year-old daughter. <div>
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Crossing paths with friends, family and strangers, Oscar starts out well, as the day goes on, he realizes that changes are not going to come easily. His resolve takes a tragic turn, however, when BART officers shoot him in cold blood at the Fruitvale subway stop on New Year's Day. Oscar's life and tragic death would shake the Bay Area - and the entire nation - to its very core.</div>
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Fruitvale Station is set to open in NEW cities across the country this week including Houston, Atlanta, and Chicago! Fruitvale Station opened in select theaters in NYC, LA, and Bay Area this past week. In theaters NATIONWIDE July 26.</div>
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Justin E. Sterlinghttp://www.blogger.com/profile/12854776446167678743noreply@blogger.comtag:blogger.com,1999:blog-6796899876551918250.post-33062565310769628922013-04-26T21:37:00.001-07:002013-04-26T21:37:18.843-07:00Reclusive Death Penalty Lawyer Opens Up About Her Work<div class="separator" style="clear: both; text-align: center;">
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Judy Clarke is in the business of cheating death, but she rarely talks about it. Clarke, one of the nation's top lawyers and defender of the despised, broke her silence this Friday in a speech at a legal conference, where she spoke about her work saving notorious criminal defendants from execution.<br />
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The names of her past clients - Susan Smith, Unabomber Theodore Kaczynski and most recently, Tucson shooter Jared Loughner - run like a list of the most reviled in American criminal history. But she did not say whether she would add to that list the latest name in the news: The suspect in the Boston Marathon bombing.<br />
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Clarke was reticent throughout her keynote speech and declined to take questions from the audience. Instead, she talked about how she had been "sucked into the black hole, the vortex" of death penalty cases 18 years ago when she represented Smith, who drowned her two children. <br />
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"I got a dose of understanding human behavior and I learned what the death penalty does to us," she said. "I don't think it's a secret that I oppose the death penalty. "<br />
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She saved Smith's life and later would do the same for Kaczynski, Loughner and the Atlanta Olympics bomber Eric Rudolph. All received life sentences instead of death. Before an audience of lawyers, judges and law students at Loyola Law School's annual Fidler Institute, Clarke shared her approach in handling death penalty cases.<br />
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"The first clear way death cases are different is the clients," said Clarke, now a visiting professor at Washington and Lee University School of Law in Virginia. "Most have suffered from serious severe trauma, unbelievable trauma. We know that from brain research. Many suffer from severe cognitive development issues that affect the core of their being."<br />
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Connecting with the client by finding out "what brought them to this day that will define the rest of their lives" is the first step, she said. In most cases, she said she finds underlying mental illness. Kaczynski was ultimately diagnosed as schizophrenic and, on the eve of seating a jury, he agreed to plead guilty.<br />
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Clarke said a veteran lawyer once told her: "The first step to losing a capital case is picking a jury. "Our clients are different," she said. "We should enjoy the opportunity to step into their lives. It can be chaotic. But it's a privilege to be there as a lawyer." <br />
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Justin E. Sterlinghttp://www.blogger.com/profile/12854776446167678743noreply@blogger.comtag:blogger.com,1999:blog-6796899876551918250.post-62923807988506039382013-04-26T20:27:00.002-07:002013-04-26T20:27:49.494-07:00San Diego City Council Debates New Medical Marijuana OrdinanceThe San Diego medical marijuana community is holding its collective breath as the city considers legal changes that would pave the way for dispensaries and lead to a revival of the local MMJ industry, which has been decimated in the past two years.<br />
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On Monday, the San Diego City Council will hear an ordinance put forth by Mayor Bob Filner that would allow dispensaries to operate in specific commercial and industrial areas. If the measure passes, dozens of dispensaries would likely open this year, and the city could eventually have 100 or more MMJ centers according to some estimates. That would create additional business opportunities for support companies and professionals, including lawyers, consultants, landlords, electricians and cultivation equipment suppliers.<br />
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Annual marijuana sales could hit $50 million once all dispensaries are up and running, according to MMJ Business Daily’s estimates, adding roughly $1 million to the city’s coffers. But the measure faces some opposition, and whether it will pass is anyone’s guess at this point.<br />
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Here are the key business-related highlights of the ordinance:<br />
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- Medical marijuana centers would have to meet a host of requirements tied to everything from security to signage.<br />
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-Dispensaries would have to fork over $5,000 each year in permit fees and pay a 2% annual excise tax on medical marijuana transactions.<br />
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-Centers would need to operate as nonprofits, meaning they could only accept “donations” from medical marijuana patients who have valid state-issued MMJ identification cards and also have submitted their doctor recommendations for cannabis to the California Department of Public Health’s central registry.<br />
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-Dispensaries would have to set up shop at least 600 feet away from schools, parks and childcare facilities and 1,000 feet from another MMJ center.<br />
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The move to change San Diego’s medical marijuana laws comes after a turbulent period that saw hundreds of dispensaries open rapidly several years ago and then close just as quickly after the city began a crackdown in 2011.<br />
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<a href="http://www.sterlingdefense.com/">The Law Offices of Justin E. Sterling</a> provides representation and advice to those seeking the protection of the Compassionate Use Act under the provisions of California's Proposition 215. We are educated on the many scientifically proven medicinal benefits of marijuana. Unfortunately, possession, sale, distribution, and transportation of marijuana remain illegal under federal law. In addition, judicial interpretations of state law continue to establish challenging obstacles for those desiring to operate legally.<br />
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We here, at <a href="http://www.sterlingdefense.com/practice-areas/drug-offenses">the Law Offices of Justin E. Sterling</a>, recognize that service providers operating under laws that decriminalize the use of marijuana require help getting through the maze of compliance issues. As such, we provide reliable compliance advice and assist our clients in navigating this constantly evolving area of the law. Our clients include medical marijuana collectives, dispensaries, and primary caregivers.Justin E. Sterlinghttp://www.blogger.com/profile/12854776446167678743noreply@blogger.comtag:blogger.com,1999:blog-6796899876551918250.post-78326054808400805572013-04-26T20:15:00.003-07:002013-04-26T20:15:35.084-07:00NOLA Visit<div class="separator" style="clear: both; text-align: center;">
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<br />Justin E. Sterlinghttp://www.blogger.com/profile/12854776446167678743noreply@blogger.comtag:blogger.com,1999:blog-6796899876551918250.post-83270936582402729122013-02-15T08:07:00.003-08:002013-02-15T08:51:14.491-08:00An L.A. Judge Starting The Process Of Reconsidering Prison Terms Of More Than 1,000 Offenders Of California's Three-Strikes Law Reduces The Sentences For 5 InmatesA Los Angeles County judge responsible for reconsidering the life prison terms of more than 1,000 offenders sentenced under the state's three-strikes law began the process Monday at a hearing where he reduced the punishments for five inmates convicted of relatively minor crimes.<br />
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Among those given shorter sentences was a 74-year-old who has served more than 15 years for possessing $10 worth of drugs and an 81-year-old behind bars for more than 17 years for stealing dozens of packs of cigarettes.<br />
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The hearing came three months after voters overwhelmingly approved Proposition 36, which softened California's tough three-strikes law and allowed many inmates sentenced for non-serious and nonviolent offenses to ask for shorter prison terms. In Los Angeles County, the hearings are expected to continue through at least much of this year.<br />
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Prosecutors who had reviewed the prison records and criminal histories of the five inmates argued that they were suitable for release and that none posed an "unreasonable risk of danger to public safety." Under the new law, judges must reduce the sentences for eligible inmates unless doing so would endanger the public.<br />
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Deputy Dist. Atty. Beth Widmark, however, argued that the inmates should nevertheless be placed under the supervision of probation officers after they are released. Since the men have already served longer terms than their new sentences, they will be released from prison in the next week or so. Widmark cited the inmates' lengthy criminal histories and noted that they had each spent more than a decade behind bars.<br />
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Judge William C. Ryan acknowledged that such supervision would probably enhance public safety. But he said he could not legally place the offenders on supervision because they had already served well beyond their new terms and any period of supervision that would normally have followed their prison stint.<br />
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Widmark expressed concern about one inmate in particular. Randall Martinez's third strike, she noted, was for stealing four locks worth less than $70 from a hardware store in 1999. But the prosecutor also recited a long list of his prison violations for drug use, including possession of cocaine, heroin, marijuana and methamphetamine. Last year, she said, Martinez was caught with a syringe.<br />
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"Does he need supervision? Absolutely," Widmark said.<br />
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"I don't disagree with you," the judge responded.<br />
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Throughout California, about 2,800 prisoners are eligible to ask for reduced sentences, with an estimated 1,050 from Los Angeles County.<br />
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Mike Reynolds, whose daughter's 1992 murder led him to spearhead the creation of the three-strikes law, decried the release of resentenced prisoners without supervision.<br />
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"No one is following what they're going to be doing," he said. "I see it as a very dangerous precedent."<br />
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Michael Romano, who helped write the proposition and runs a Stanford Law School project that represents inmates convicted of minor third strikes, said state Department of Corrections and Rehabilitation data show that inmates eligible for resentencing are less likely to re-offend than the vast majority of other prisoners. Romano said the success of such inmates will depend on whether counties can provide them the drug treatment, housing and job training resources they need following release.<br />
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Unlike some counties where many courts handle such hearings, Los Angeles County has assigned a single judge — Ryan — to determine all of the re-sentencing requests, partly in an effort to ensure that the decisions are consistent.<br />
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Ryan's court has been deluged with more than 1,000 requests, with the first arriving a day before the Nov. 6 vote. On a recent day, in the office of a court research attorney who reviews the cases before they get to Ryan, thick stacks of court files and requests covered the carpet. More than 300 of the requests were filed by inmates, the rest by attorneys.<br />
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"They came in like a hurricane," Ryan said in a recent interview. "I am taking everything, even if it's in crayon, as long as it has the right information."<br />
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Ryan said he wanted a careful vetting of any potentially dangerous inmates before deciding whether they should be resentenced. Prosecutors, he noted, have been reviewing the prison records of those who are asking to be resentenced to determine whether they were violent behind bars.<br />
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<a href="http://www.sterlingdefense.com/practice-areas/three-strikes-cases">The Law Offices of Justin E. Sterling</a> provides trusted and experienced representation to individuals facing potential third-strike consequences. Recently, our practice obtained an outright dismissal for a client who was facing life in prison under <a href="http://www.sterlingdefense.com/practice-areas/three-strikes-cases">California's Three Strikes Law</a>. <a href="http://www.sterlingdefense.com/recent-case-results">Click here</a> and take a look for yourself.Justin E. Sterlinghttp://www.blogger.com/profile/12854776446167678743noreply@blogger.comtag:blogger.com,1999:blog-6796899876551918250.post-70528179736425384712013-02-05T08:57:00.002-08:002013-02-05T08:58:18.683-08:00A Step Forward For Jobseekers With Criminal RecordsThe mass incarceration of minority communities, and the resulting mass reentry and lifetime collateral consequences, have created the “perfect storm” to ensure that criminal record-based employment discrimination serves as a surrogate for race-based discrimination. Jobseekers with criminal records are often at the “back of the line.” In the current economy, that line has grown considerably.<br />
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But in a recent 4-1 bipartisan vote, the U.S. Equal Employment Opportunity Commission (EEOC) showed tremendous leadership and courage by issuing a revised guidance encouraging the hiring of individuals with records by clarifying the application of Title VII to criminal records. This decision gives jobseekers with criminal records a renewed opportunity to successfully enter the labor market.<br />
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But the by-product of mass incarceration—mass reentry—means that this year alone 700,000 people will return to their communities from prison.<br />
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Millions more will cycle through our courts and jails or be placed under some other form of correctional supervision. More than half of these men and women come from and return to impoverished communities that are under resourced and ill-equipped to respond to the large number of returning citizens.<br />
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On their return to the community, these individuals are expected to find and maintain gainful employment. And, let there be no mistake, those that can work want to work.<br />
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However, over the past few decades, state and local legislatures have promulgated a wide array of laws and policies that make it increasingly difficult for people with criminal records to enter the labor market successfully— even for those who have fully paid their debt to society and have demonstrated that they are not a threat and are capable of becoming productive, tax-paying citizens.<br />
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Legal restrictions, occupational bars, inadvertent and deliberate employment discrimination practices, and the cultural stigma associated with having a criminal record have prevented many of these people – especially those who come from economically distressed communities of color – from obtaining employment and other necessities of life.<br />
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In addition, researchers from around the country confirm that the majority of private- sector employers have little or no interest in hiring people with criminal records, especially those recently released from state and federal correctional facilities.<br />
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When many individuals inevitably fail to reintegrate and are re-incarcerated, they are not the only ones who suffer. So do their families, communities and indeed the entire country; valuable lives are wasted, the public is less safe, and justice is diminished. Finding effective ways to manage their reentry into society and the workforce is critical to promoting public safety and curbing recidivism rates and the high costs of re-incarceration.<br />
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The new guidance supersedes the original version issued in 1987, and reminds employers that criminal record policies have a disparate impact based on race and national origin. According to the new guidelines, employers must consider the age and seriousness of the offense, and its relevance to the job the applicant is applying for. Employers must also now conduct individualized assessments when screening applicants with criminal records.<br />
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This new provision will offer qualified jobseekers a chance to explain their involvement with the criminal justice system, in addition to providing them an opportunity to share evidence of rehabilitation. This will help to level the playing field and offer jobseekers with criminal records a chance to compete on the merits, once their criminal record is taken into account.<br />
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Surprisingly, the new guidance also encourages employers to consider recent research on “desistance,” when designing their human resource policies. This is an especially important provision, since most employers rely on often ill-informed and misguided notions about risk and recidivism.<br />
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The EEOC's action is a welcome step forward. Justin E. Sterlinghttp://www.blogger.com/profile/12854776446167678743noreply@blogger.comtag:blogger.com,1999:blog-6796899876551918250.post-52030484042535649922013-02-05T08:29:00.002-08:002013-02-05T08:34:59.817-08:00A Finding of Factual Innocence<br /><br />High unemployment rates and a faltering economy tend to make workers with arrest records nervous: That kind of a blot can only make job hunting more difficult. California has a variety of statutory remedies, such as Penal Code sections 530.6 (factual innocence for victims of identity theft), 851.90 (sealing records after a defendant completes a drug diversion program), and 1203.4 (withdrawing a plea after probation is completed). But the broadest protection comes from Penal Code section 851.8, which provides for a petition for factual innocence ("PFI"). The court can grant a PFI for any arrest that did not result in a conviction. (See Cal. Penal Code § 851.8.)<br />
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A judge who grants a PFI will order that all arrest and prosecution records be sealed. This seal holds until three years from the date of the arrest, at which time all the related records will be destroyed, including the petition itself, the PFI order, arrest records, state Department of Justice records, and those of any other agency that received information of the arrest (for example, the local police department). Put succinctly, an order granting a PFI wipes the slate clean.<br />
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A successful PFI is a godsend to someone who has been wrongfully arrested. And for anyone who may have been properly apprehended but was later acquitted of the charges, a PFI provides something the jury's verdict cannot: a finding of factual innocence - Remember that when a jury acquits someone, it simply means that the prosecution did not meet the burden of proof for guilt; it does not necessarily mean the defendant didn't commit the crime.<br />
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In 2012, the <a href="http://www.sterlingdefense.com/">Law Offices of Justin E. Sterling</a> launched the <a href="http://www.sterlingdefense.com/practice-areas/clean-slate-project">Clean Slate Project</a>. <a href="http://www.sterlingdefense.com/practice-areas/clean-slate-project">The Clean Slate Project</a> extends legal advocacy beyond an arrest or disposition by the court so that clients can avail themselves of opportunities to “clean up” their criminal records.<span style="font-size: small;"></span><br />
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</span><br />Justin E. Sterlinghttp://www.blogger.com/profile/12854776446167678743noreply@blogger.comtag:blogger.com,1999:blog-6796899876551918250.post-11559078078578376242013-02-01T14:06:00.001-08:002013-02-01T14:08:00.464-08:00“Gideon’s Army”: Young Public Defenders Brave Staggering Caseloads, Low Pay to Represent the Poor<div class="separator" style="clear: both; text-align: center;">
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Not since PBS's "Presumed Guilty" (which I had the honor of being a part of) has there been a true and raw documentary depicting the work of a public defender. <br />
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The new documentary “Gideon’s Army” follows a group of young public defenders in the Deep South who contend with low pay, long hours and staggering caseloads to represent the poor. The film’s title comes from the landmark 1963 Supreme Court ruling in <em>Gideon v. Wainwright</em> that established the right to counsel to defendants in criminal cases who are unable to afford their own attorneys. “Gideon’s Army” director and producer Dawn Porter, and Travis Williams, a Georgia public defender are featured in the film. <br />
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The feature documentary premiered at the 2013 Sundance Film Festival and will broadcast later this year on HBO.Justin E. Sterlinghttp://www.blogger.com/profile/12854776446167678743noreply@blogger.comtag:blogger.com,1999:blog-6796899876551918250.post-59412399924071078882012-12-10T11:07:00.002-08:002012-12-10T11:27:10.562-08:00Defense Attorneys - 3 Strikes Reform - What To Do Now That Prop 36 Has Been Passed Here, statute decoder Garrick Byers, talks about the effect of newly approved Prop 36 and its impact on <a href="http://www.sterlingdefense.com/practice-areas/three-strikes-cases">California's Three Strikes law.</a><br />
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<a href="http://www.claraweb.us/wp-content/uploads/2012/11/3Strikes-What-to-do-Now-2012-Nov-7-Byers1.pdf">http://www.claraweb.us/wp-content/uploads/2012/11/3Strikes-What-to-do-Now-2012-Nov-7-Byers1.pdf</a><br />
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<br />Justin E. Sterlinghttp://www.blogger.com/profile/12854776446167678743noreply@blogger.comtag:blogger.com,1999:blog-6796899876551918250.post-1017065736078757862012-12-10T10:58:00.001-08:002012-12-10T11:04:06.216-08:00Prosecutor Suspended for Withholding Evidence In Gang Murder CaseA veteran prosecutor who improperly withheld crucial evidence in a San Jose gang murder case until the brink of trial has been suspended for a month without pay for incompetence and misconduct.<br />
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The suspension of Daniel Carr is the maximum penalty District Attorney Jeff Rosen could impose short of demoting or firing the prosecutor, and it cost Carr four weeks' pay -- $16,500. It is the latest example of Rosen's effort to fulfill his campaign promise to share evidence early and fully with defense attorneys to avoid problems that have allowed some prosecutors to ignore judges' orders and conceal evidence.<br />
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The problem surfaced early in 2011, shortly after Rosen took office. Twenty-eight days before a group of eight suspected gang members were to stand trial, Carr began revealing a treasure trove of information to their attorneys, including a statement by a co-defendant taken three years earlier and the fact that the alleged murder weapon, a knife, had been discovered in 2008.<br />
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Under California law, prosecutors must turn over evidence at least 30 days before trial, though Rosen and many other DAs and judges in California expect it to be turned over far sooner, partly for efficiency's sake. After the belated disclosure of the evidence in this case -- and a last-minute plea agreement by one of the defendants -- the trial was delayed and is now set to start early next year.<br />
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Carr's conduct stands out for several other reasons, according to the disciplinary notice, including the sheer volume of withheld evidence, the judge's finding of a violation, the need to reassign the case and the inability of the new prosecutor to know what evidence had been provided to the defense. It took two paralegals three months to figure it out.<br />
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But the argument that has gained the most sympathy among Carr's fellow prosecutors is his claim that gang-unit prosecutors commonly withheld valuable evidence from defense attorneys until the last minute to protect witnesses and their families from the very real risk of being knifed or shot by gangsters in retaliation.<br />
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However, in February 2009, Carr told Judge Gilbert Brown -- after defense attorneys expressed concern he was withholding evidence -- that he was "not holding anything back.'' Under the law, prosecutors are supposed to seek a judge's permission to withhold evidence, especially in big cases where late disclosure can cause significant delays. Carr argues in his appeal that his supervisors sanctioned the practice of not going to a judge.<br />
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After the scandal erupted, Rosen issued a memo instructing other gang-unit prosecutors to immediately turn over any information they were holding unless they got a judge's permission to hold onto it. At least one other prosecutor complied, Carr notes, contending that proves he, Carr, did nothing out of the ordinary. But none of the other gang prosecutors had apparently gone as far as Carr had by amassing a mountain of discovery and exceeding the final 30-day deadline. Carr was motivated by his belief that the defendants were guilty, and was trying to make sure justice was served, according to the notice.<br />
<br />Justin E. Sterlinghttp://www.blogger.com/profile/12854776446167678743noreply@blogger.comtag:blogger.com,1999:blog-6796899876551918250.post-89443714912497942782012-10-03T14:44:00.003-07:002013-02-05T08:40:26.401-08:00Expungement ExplainedThe first thing that someone who wants to apply for an expungement needs to understand is that if your petition is granted under Penal Code 1203.4, your case is not sealed. A criminal record is not actually "expunged" under this statute. That term implies complete erasure, as if the case had never occurred. A more proper term is "dismissal". The conviction remains on your record for many purposes, including sex offender registration and immigration consequences. What the statute provides is it allows the defendant to be released from all penalties and disabilities resulting from the offense. There are numerous limitations to this relief. <br />
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An adult who was granted probation, completed all the terms of probation, and is no longer on probation, is eligible for relief under this statute. He or she must not be on probation, or serving a sentence, for any other offense. (Penal Code § 1203.4). <br />
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If you were denied probation you can still obtain an expungement. You still cannot be on probation or serving a sentence for any other case. Applicants must wait one year after their conviction before applying for an expungement (Penal Code§1203.4a). <br />
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If your criminal case was reduced to an infraction you are eligible for an expungement under Penal Code section 1203.4a.<br />
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What are the effects of expungement under PC1203.4/1203.4a?<br />
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<b><u>It Will:</u></b><br />
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1. Result in a new entry in the court record showing the dismissal of your case;<br />
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2. Allow you to answer on many, but not all, job applications that you have not been convicted. If, however, you are applying for a government job or a job which requires a government-issued license, certificate, or permit, or a job which involves a security clearance, the conviction will be discovered; in such cases, you should disclose the initial conviction and its later expungement;<br />
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3. Prevent use of the conviction to impeach you if you testify as a witness, unless you are being tried for a subsequent offense.<br />
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4. If the conviction was for a felony, expungement is the first step in obtaining a pardon.<br />
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<strong><u>It Will Not</u></strong>:<br />
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1. Remove the conviction from your "Rap Sheet" - California and FBI criminal history records will still show the conviction and the later dismissal "per PC 1203.4"; <br />
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2. Reinstate the right to possess firearms, if it was taken away (reduction to a misdemeanor may accomplish this if the offense is not one of violence);<br />
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3. Remove the requirement to register as a sex offender per PC290. If the expungement is granted, registrants must then complete and file paperwork requesting a Certificate of Rehabilitation, when eligible. A Certificate of Rehabilitation will relieve specified sex offenders from further registration. This is true for both felony and misdemeanor convictions.<br />
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4. Allow you to omit the conviction from applications for government issued licenses;<br />
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5. Seal or otherwise remove the court case file from public inspection - anyone who knows where to look will be able to find the court case file (probation reports are in confidential files and are not subject to public inspection 90 days after sentencing);<br />
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6. Prevent the conviction from being used as a "prior" or "strike prior" to increase a punishment on a subsequent conviction;<br />
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7. Prevent the conviction from being used for impeachment purposes on a subsequent offense;<br />
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8. Prevent the conviction from being considered and used to refuse or revoke government licenses and permits such as real estate sales licenses, teaching credentials, bus drivers licenses, security guard certificates, etc.; however, the expungement may reduce the weight given the conviction by the licensing agency.<br />
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9. Prevent the conviction from being used by INS for removal and exclusion purposes.<br />
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Recently the Law Offices of Justin E. Sterling launched the <a href="http://www.sterlingdefense.com/practice-areas/clean-slate-project">Clean Slate Project</a>. The program helps individuals in every aspect of post-conviction relief. Visit <a href="http://www.sterlingdefense.com/">www.sterlingdefense.com</a> for more information. Also, be sure to "Like" our facebook page at <a href="http://www.facebook.com/cleanslateproject">www.facebook.com/cleanslateproject</a>. <br />
<br />Justin E. Sterlinghttp://www.blogger.com/profile/12854776446167678743noreply@blogger.comtag:blogger.com,1999:blog-6796899876551918250.post-71925524620530253632012-07-24T10:36:00.002-07:002012-12-05T19:13:06.662-08:00First Annual High School Internship ProgramThe Los Angeles County Public Defender’s Office is launching their first annual High School Internship program which will run for two weeks, starting July 23, 2012 from 9 am to 3 pm. All students will be assigned to the Clara Shortridge Foltz Criminal Justice Center. They are partnering with the following three high schools and their respective law magnet programs: Dorsey High in the Crenshaw District; Wilson High in El Sereno; and Roosevelt High in Boyle Heights. <br />
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The goal is to expose the students to the work that the Public Defender team undertakes in vigorously representing indigent clients, which will include interactive presentations about the role of our supporting team of investigators, paralegals and social workers. The <a href="http://www.sterlingdefense.com/">attorneys</a> will also share their own personal stories about the journey that led to becoming deputy public defenders. The students will learn first-hand how the Public Defender promotes justice.<br />
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The program will feature a holistic approach to criminal justice, discussing the role of untreated mental illness, substance abuse and early childhood trauma and the connection to the criminal justice system.<br />
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The participating students have been in their respective law magnet programs since 9th grade and next year will be applying for college. Some will be the first in their families to attend college. The experience will aim to instill in the students that they too can pursue their dreams of becoming lawyers.<br />
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Visit <a href="http://www.sterlingdefense.com/">www.sterlingdefense.com</a> for more information. Also, be sure to "Like" our facebook page at <a href="http://www.facebook.com/cleanslateproject">http://www.facebook.com/pages/Law-Offices-of-Justin-E-Sterling/302279779793912</a>Justin E. Sterlinghttp://www.blogger.com/profile/12854776446167678743noreply@blogger.comtag:blogger.com,1999:blog-6796899876551918250.post-41935775273942773952012-07-24T09:44:00.000-07:002012-07-24T09:44:09.798-07:00State Courts Look To Revise Their Approach To Eyewitness IDAlmost a year after the New Jersey Supreme Court made a sweeping ruling aimed at resolving the “troubling lack of reliability in eyewitness identifications,” it issued instructions on Thursday for judges to give jurors to help them better evaluate such evidence in criminal trials. <br />
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A judge now must tell jurors before deliberations begin that, for example, stress levels, distance or poor lighting can undercut an eyewitness’s ability to make an accurate identification. <br />
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Factors like the time that has elapsed between the commission of a crime and a witness’s identification of a suspect or the behavior of a police officer during a lineup can also influence a witness, the new instructions warn. <br />
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And in cases involving cross-racial identifications, judges were directed to tell jurors that “research has shown that people may have greater difficulty in accurately identifying members of a different race.” <br />
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“You should consider whether the fact that the witness and the defendant are not of the same race may have influenced the accuracy of the witness’s identification,” the instructions say. <br />
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The new instructions caution jurors that eyewitness testimony must be scrutinized carefully. <br />
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“Human memory is not foolproof,” the instructions say. “Research has revealed that human memory is not like a video recording that a witness need only replay to remember what happened. Memory is far more complex.” <br />
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The new instructions, which take effect on Sept. 4, address the problems the State Supreme Court identified last August in a unanimous ruling that concluded that the traditional test for reliability of eyewitness testimony, which the United States Supreme Court set out in 1977, was outdated and should be revised.<br />
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Although it applies only in New Jersey, the ruling was widely heralded for containing the most exhaustive review of decades of scientific research on eyewitness identification. <br />
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The new instructions are expected to be influential as other state courts look to revise their approach to eyewitness identification, several legal experts said.<br />
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“These instructions are far more detailed and careful than anything that exists anywhere in the country,” said Brandon L. Garrett, a law professor at the University of Virginia and the author of “Convicting the Innocent,” a book that includes a study of eyewitness misidentifications, which was cited by the New Jersey court in its decision.<br />
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“These instructions are far from perfect,” he added, “but they are a remarkable road map for how you explain eyewitness memory to jurors.”<br />
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Barry C. Scheck, co-director of the Innocence Project at the Benjamin N. Cardozo School of Law, which had filed a friend-of-the-court brief in the New Jersey case, called the changes “critically important” and predicted the new instructions would not only affect how juries are instructed, but would also influence trials themselves and the evidence-gathering that precedes them, since both sides will know that such instructions will be given.<br />
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“It changes the way evidence is presented by prosecutors and the way lawyers defend,” he said, adding, “The whole system will improve.”<br />
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Stuart J. Rabner, the court’s chief justice, who wrote last year’s decision, said by phone that the ultimate issue of whether to trust eyewitness testimony was for a jury to decide.<br />
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“We expect juries are going to hear this evidence, so we want to give them the tools with which to evaluate the eyewitness testimony,” he said.<br />
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The State Supreme Court also issued a rule that requires law enforcement officers to record details of how an identification was made. Officers must identify anyone, not just law enforcement personnel, with whom a witness has spoken about the identification — before, during or after it occurred — and include a detailed summary of what was said.<br />
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“If the record that is prepared is lacking in important details as to what occurred,” the rule says, a judge may declare the identification inadmissible or allow the jury to hear only portions of it.<br />
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Jennifer E. Laurin, an assistant professor of law at the University of Texas, who has written about the politics of criminal justice, said the new instructions are important because jurors will now be “more fully educated about our most contemporary understanding about what makes eyewitness identification more or less reliable.” Justin E. Sterlinghttp://www.blogger.com/profile/12854776446167678743noreply@blogger.comtag:blogger.com,1999:blog-6796899876551918250.post-57403496099656859192012-07-24T09:35:00.002-07:002012-07-24T09:35:30.673-07:00Bars To Deferred Action StatusOn June 15, 2012, the Obama Administration announced that it would not deport certain undocumented persons who entered the U.S. as children. The Department of Homeland Security (DHS) has offered some initial guidance on the type of criminal offenses that will make a person ineligible to be granted deferred action.<br />
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Deferred action means that, even though the individual is undocumented and subject to deportation, the government agrees to defer any actions to remove them.<br />
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So, in essence, even though deferred action does not provide a pathway to getting lawful permanent resident status (a greencard) or citizenship, it will allow young people to remain in the U.S. and apply for a work authorization document from the government that entitles them to legally work in the U.S.<br />
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This advisory for criminal defense counsel outlines defense strategies to preserve a client’s possible eligibility for deferred action.<br />
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Download at: <a href="http://www.ilrc.org/files/documents/practice_advisory_for_criminal_defenders_deferred_action.pdf">http://www.ilrc.org/files/documents/practice_advisory_for_criminal_defenders_deferred_action.pdf</a>Justin E. Sterlinghttp://www.blogger.com/profile/12854776446167678743noreply@blogger.comtag:blogger.com,1999:blog-6796899876551918250.post-29567801880897326162012-07-24T09:30:00.000-07:002012-07-24T09:30:09.976-07:00Santa Clara County DA Seeks Shorter Three Strikes Law SentencesDistrict Attorney Jeff Rosen has concluded that more than 60 "three-strikers" from Santa Clara County who are serving life sentences for relatively minor crimes probably didn't deserve such harsh punishment -- and he will seek shorter terms or outright release for at least some of them even if an initiative to scale back California's tough Three Strikes Law loses in November. <br />
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Rosen's staunch support of the initiative -- including a provision that would pave the way for judges to easily reduce life sentences for certain three-strikers -- distinguishes him from most of the state's 58 district attorneys. Only two others -- fellow Democrat George Gascon, of San Francisco, and Republican Steve Cooley, of Los Angeles County -- have endorsed Proposition 36.<br />
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But Rosen is the only one promising to actively pursue resentencing for some of the lifers who would be eligible if the initiative passes, no matter how the election turns out. Some of those lifers could walk out of prison as soon as the process is complete, if Rosen gets his way.<br />
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"We know there are people who were given 25-to-life who would not get that today," Rosen said. "One element of justice is consistency. I want to apply the standard we are using right now. This gives us a way of establishing consistency that is fair while still protecting public safety."<br />
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Under the existing Three Strikes Law, the first two strikes have to be violent or serious crimes as defined in the penal code. But only California, out of 24 states with similar laws, allows the third strike to be any felony.<br />
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As a result, offenders who have committed such relatively minor third strikes as stealing a pair of socks, attempting to break into a soup kitchen for food, or forging a check for $146 at Nordstrom have been sentenced to life in prison.<br />
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In contrast, the new initiative, crafted by a group of Stanford University law professors and the New York-based NAACP Legal Defense Fund, would allow only certain hard-core criminals, including murderers, rapists and child molesters, to be put away for life for any third felony offense, while restricting the third strike to a serious or violent felony for everyone else. A poll conducted this month by the California Business Roundtable and Pepperdine University found 72 percent of likely voters support it.<br />
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The initiative also would set up a new procedure to more efficiently bring certain three-strike cases before judges for reconsideration. Right now, such cases can be heard, but obtaining a hearing is far more time-consuming and less certain.<br />
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Even though judges retain the ultimate say over whether to reduce a life sentence, a positive recommendation by a top prosecutor like Rosen could play a crucial role in helping three-strikers obtain leniency -- partly because responsibility for the decision would then be shared by the court and the district attorney's office. "It's outstanding that this is his position," said Acting Public Defender Molly O'Neal. "It's absolutely morally and ethically the right thing to do. I'm really impressed."Justin E. Sterlinghttp://www.blogger.com/profile/12854776446167678743noreply@blogger.comtag:blogger.com,1999:blog-6796899876551918250.post-10909497894681249782012-05-17T12:59:00.002-07:002012-05-17T12:59:56.747-07:00Defending Gang Cases SeminarSaturday June 16, 2012 – at The Berkeley Marina DoubleTree Hotel – 200 Marina Blvd, Berkeley, California 94710 <div>
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Program Coordinators:</div>
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Kathleen Cannon, Attorney at Law, San Diego, California<br />R. Addison Steele II, Deputy Public Defender, Riverside County</div>
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This Defending Gang Cases Seminar will provide you with 6.0 hours of continuing legal education participatory credits by addressing some very important aspects in the defense of gang cases. We will cover important topics that include trial preparation, humanizing your client, selecting and working with a gang expert, closing argument, discovery issues, and an exhaustive review of the laws and case law pertaining to gangs. Note: We have also reserved a block of lodging rooms at the Berkeley Marina DoubleTree Hotel at a special rate. You can obtain lodging reservations via the Internet, see elsewhere on this notice for the Internet link. If you call to make reservations, be sure to indicate you are attending the CPDA group event to obtain the discounted lodging rate. This program is MCLE accredited – please see box below for details.</div>
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PROGRAM SCHEDULE</div>
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8:00 a.m. Registration & Check-In</div>
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9:00 a.m. Preparing a Gang Case for Trial – Manohar Raju, Deputy Public Defender, San Francisco County</div>
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10:00 a.m. Legal Developments in Gang Cases – Charles Denton, Assistant Public Defender, Alameda County</div>
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11:00 a.m. Hiring and Working with a Gang Expert – Gregorio Estevane, J.D., Astis Consulting, Los Angeles, California<br /><br />12:00 p.m. Lunch (included with registration fee)</div>
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1:00 p.m. Effective Closing Arguments in a Gang Case – Traci Owens, Deputy Alternate Public Defender, Santa Clara County</div>
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2:00 p.m. Discovery Issues and Challenges in Gang Cases – Jason Cox, Attorney at Law, Albany, California</div>
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3:00 p.m. Winning by Humanizing the Client in a Gang Case – Souley Diallo, Attorney at Law, Riverside, California</div>
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4:00 p.m. Conclusion</div>
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This activity is deemed approved for Minimum Continuing Legal Education by the State Bar of California in the amount of 6.0 hours. This CPDA activity conforms to the standards for approved education activities prescribed by the rules & regulations of the State Bar of California governing minimum continuing legal education. This activity is approved for California Legal Specialization Credit as follows: 4.0 hrs in Criminal Law Trial Advocacy and 2.0 hours in Substantive Criminal Law and Procedure. CPDA is an Approved Provider of Criminal Law under section 7.0 of the Rules Governing the State Bar of California Program for Certifying Legal Specialists and the Standards.</div>Justin E. Sterlinghttp://www.blogger.com/profile/12854776446167678743noreply@blogger.comtag:blogger.com,1999:blog-6796899876551918250.post-6732942374007795432012-05-09T15:47:00.000-07:002012-05-09T15:47:58.897-07:00Mr. William Gibbons, Esq.<div class="separator" style="clear: both; text-align: center;">
<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEh1vnE9jJN3PHXzMwTX38RNRTp_5Fp6cz5jI_4GGZkE-snZe43ipxvvGNyEeqNHTVuLOdWtmggX0EooPhJQmOgkHWXcdCARt5oECtEq7cEr_9ugDft9urlUcZAjP81VEOygazS_0dut0qaa/s1600/blog2.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" height="320" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEh1vnE9jJN3PHXzMwTX38RNRTp_5Fp6cz5jI_4GGZkE-snZe43ipxvvGNyEeqNHTVuLOdWtmggX0EooPhJQmOgkHWXcdCARt5oECtEq7cEr_9ugDft9urlUcZAjP81VEOygazS_0dut0qaa/s320/blog2.jpg" width="240" /></a></div>
<br />Justin E. Sterlinghttp://www.blogger.com/profile/12854776446167678743noreply@blogger.comtag:blogger.com,1999:blog-6796899876551918250.post-65070071001354272662012-04-24T13:30:00.002-07:002012-04-24T13:33:53.092-07:00New Stuff1. <b>In re Tom </b>(2012) Cal.App.4th , reported on March 21, 2012, in 2012 Los Angeles Daily Journal 3595, the First Appellate District, Division3 held that where the defendant was held for approximately an hour after being involved in fatal vehicle collision, was denied permission to leave the scene, and then placed in the rear of a patrol car for another 20 minutes before being transported from the accident scene to the police station for further investigation, those restraints were “tantamount to a formal arrest,” triggering his right to Miranda warnings. (See Berkemer v. McCarty (1984 468 U.S. 420, 423-426, 440-442.) Where the defendant was not given the required Miranda warnings, and prosecution elicited police testimony that, subsequent to his arrest, defendant never inquired about the welfare of the occupants of the other vehicle, the use of this evidence of defendant’s post-arrest, pre-Miranda silence as substantive evidence of defendant’s guilt violated his Fifth Amendment right against self-incrimination. (See Doyle v. Ohio (1976) 426 U.S. 610, 617-619; see also Jenkins v. Anderson (1980) 447 U.S. 231, 233-238; United States v. Velarde-Gomez (9th Cir. 269 F.3d 1023, 1028-1029.) Where emotionally charged case hinged on competing theories of accident reconstruction yielding widely different estimates of defendant’s speed at the point of impact, the prosecutor’s argument urging the jury to consider the defendant’s failure to ask about the welfare of the occupants of the other vehicle as substantive evidence of his guilt was highly prejudicial, as a result the erroneous admission of such evidence was not harmless beyond a reasonable doubt. (People v. Neal (2003) 31 Cal.4th 63, 86.) CALCRIM 592, defining gross vehicular manslaughter, does not eliminate the requirement that the prosecution prove the predicate offense of reckless driving.<br />
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2.<b> Lafler v. Cooper</b> (2012) U.S. , reported on March 22, 2012, in 2012 Los Angeles Daily Journal 3726, the United States Supreme Court held, in a 5-4 opinion, that where counsel’s ineffective advice led to the defendant rejecting a negotiated disposition (plea), and where the prejudice alleged is having to stand trial, the defendant must show that, but for the ineffective advice, there is a reasonable probability that: (1) the plea offer would have been presented to the court, (2) that the court would have accepted its terms, and (3) that the conviction or sentence or both under the offer’s terms would have been less severe than under the actual judgment and sentence imposed. The High court reversed the ruling of the state appeals court that a defendant who receives a fair trial cannot claim ineffective assistance of counsel based on advice to reject plea offer. The correct remedy for counsel’s ineffective assistance in the plea deal, is to order the state to reoffer the negotiated disposition so that if defendant accepts, trial court may exercise its discretion according to the applicable rules of the jurisdiction. </div>
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3. <b>Missouri v. Frye</b> (2012) U.S. , reported on March 22, 2012, in 2012 Los Angeles Daily Journal 3713, the United States Supreme Court, in another 5-4 opinion, with its companion case Lafler v. Cooper decided the same day, held that plea bargaining is a critical stage of a criminal proceeding, and if trial counsel taints the proceeding by failing to communicate an offer from the prosecution, the taint cannot subsequently be removed by providing the defendant a fair trial or an opportunity to enter a plea on less favorable terms. Counsel’s failure to communicate a formal, written plea offer, as a result of which the offer lapsed and the defendant lost the opportunity to accept it, constituted ineffective assistance of trial counsel. In order to show prejudice where a plea offer has lapsed or has been rejected because of counsel’s deficient performance, the defendant must demonstrate a reasonable probability both that he would have accepted the more favorable plea offer had he been afforded effective assistance of counsel and that the plea would have been entered without the prosecution’s canceling it or the trial court’s refusing to accept it, if it had the authority to exercise that discretion under state law. </div>
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4. <b>People v. Garcia</b> (2012) Cal.App.4th , reported on March 22, 2012, in 2012 Los Angeles Daily Journal 3700, the Fourth Appellate District, Division 3 held that the defendant’s conviction must be reversed where the trial court excused a juror and seated an alternate, but remaining jurors announced that they had reached a verdict before the 12th juror was excused. The error was that the trial court allowed the remaining 11 jurors to deliver a sealed verdict, which was subsequently unsealed and affirmed in a poll only of the 11 jurors, (see People v. Thaugott (2010) 184 Cal.App.4th 492, 500-501 [the jurors must appear in court and affirm their verdict]) and then affirmed by the 12th juror in court 11 days later. As a result of the 12th juror failing to affirm the verdict, the defendant was deprived of his state constitutional right to a unanimous verdict of a 12-member jury. (Ibid.) Once the court loses control over the jurors, it is without jurisdiction to call them together again. (People v. Bonillas (1989) 48 Cal.3d 757, 771.) The court may accept a partial verdict of all 12 jurors, who can affirm the verdicts, and the verdicts can be recorded pursuant to section 1164, and then the juror can be excused and replaced by an alternate. (See People v. Fudge (1994) 7 Cal.4th 1075- 1100-1101.) </div>
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5. <b>People v. Maharaj</b> (2012) Cal.App.4th , reported on March 26, 2012, in 2012 Los Angeles Daily Journal 3837, the Third Appellate District held that where the defendant was convicted of 3 counts within section 269 (aggravated sexual assault on a minor), and section 288, subdivision (b), and each of the offenses are within section 667.6, subdivision (e), and therefore requiring mandatory consecutive sentences for each of the 4 forcible sex offenses. (See § 667.6, subds. (c) and (d) requiring full term, consecutive sentences.) Section 667.6, subdivision (c) mandates that violent sex offenses listed in section 667.6, subdivision (e), when committed against the same victim on separate occasions, be subject to full-term consecutive sentences just as when such offenses are committed against multiple victims. </div>
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6. <b>People v. Romero</b> (2012) Cal.App.4th , reported on March 28, 2012, in 2012 Los Angeles Daily Journal 3935, the Third Appellate District held that the defendant, who alleged a violation of his Sixth Amendment right to a grand jury drawn from a representative sample of the population, failed to make a prima facie showing of systematic exclusion of Hispanics and Asian-Americans in the jury selection process. Furthermore, he failed to identify any aspect of the jury selection process that resulted in systematic exclusion of Hispanics and Asian-Americans from grand juries. The jury commissioner testified that she made efforts to reach out to organizations representing minority groups and that she reached out to those with ethnic-sounding names. Additionally, the nomination of grand jurors by superior court judges did not deprive the defendant of equal protection under Fourteenth Amendment where there was ample evidence in the record of nondiscriminatory motivations and methods of the superior court and its officers. </div>
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7. <b>People v. Wells</b> (2012) Cal.App.4th , reported on March 29, 2012, in 2012 Los Angeles Daily Journal 4034, the Third Appellate District held that the trial court erred in failing to sua sponte instruct the jury pursuant to section 26, which in effect exempts from criminal responsibility persons who committed the act charged “without being conscious thereof.” (See People v. Chaffey (1994) 25 Cal.App.4th 852, 855.) The defendant who was charged with DUI with injury and related offenses was entitled to a sua sponte instruction under section 26, where there was evidence supporting his theory that he could not be found guilty because the reason he crossed double yellow lines and collided with the victims’ vehicle was due to his low blood sugar, causing him to pass out, and not to being under the influence. (People v. Cole (1988) 202 Cal.App.3d 1439, 1446 [a defendant is entitled to an instruction on the defense theory where it is obvious that he is relying on that defense or if there is substantial evidence to support it.]) The trial court erred in instructing with CALCRIM 2100–the last sentence of which reads: “If the defendant was under the influence of a drug, then it is not a defense that something else also impaired his ability to drive a vehicle.” That wording might have misled jury into believing that unconsciousness is not a defense to the violation of law or failure of duty element of DUI with injury. The combined impact of instructional errors was prejudicial under either Chapman or Watson. </div>
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8. <b>People v. Tuck</b> (2012) Cal.App.4th , reported on March 29, 2012, in 2012 Los Angeles Daily Journal 3995, the First Appellate District, Division 3 held that the trial court does not have discretion under section 1385 to grant a dismissal in the interests of justice to relieve a defendant of the duty to register as a sex offender. The mandatory requirement that the defendant register as a sex offender because of a conviction for section 288, subdivision (a), does not violate the constitutional guarantee of equal protection. (People v. Hofsheier (2006) 37 Cal.4th 1185 [consensual oral cop].) A defendant convicted of lewd conduct on a minor under 14, are not similarly situated with persons convicted of sex offenses under other statutes that do not require the minor victim to be so young. However, the defendant can apply for a certificate of rehabilitation to relieve himself of the registration requirement. </div>
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9. <b>People v. Hale</b> (2012) Cal.App.4th , reported on March 30, 2012, in 2012 Los Angeles Daily Journal 4132, the First Appellate District, Division 3 held that when a defendant is charged with a violation of section 269 (aggravated sexual assault of a child under the age of 14 and more than 10 years younger than defendant), the prosecution may be commenced at any time. A conflict between section 799, which says that prosecution for a crime punishable by life imprisonment may be commenced at any time, and section 801.1, which applies a 10-year limitations period to crimes for which sex offender registration is required, is resolved under section 803.6, subdivision (a) by applying the longest applicable period. Additionally, the force used to commit forcible sodomy, a violation of former section 286, subdivision (c)(2), need not be greater than or different from the force used to engage in the act of sodomy. The prosecution was merely required to prove that the act of sodomy was accomplished by enough physical force to overcome victim’s will. (See People v. Griffin (2004) 33 Cal.4th 1015, 1026-1028; People v. Guido (2005) 125 Cal.App.4th 566, 576.) </div>
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10.<b> People v. Superior Court</b> (Chapman) Cal.App.4th , reported on April 2, 2012, in 2012 Los Angeles Daily Journal 4205, the Second Appellate District, Division 8 held that the trial court erred in granting the defendant’s motion to suppress evidence, based on the facts of this case, where the officer’s were permitted to reenter the premises to seize evidence observed in plain view (Coolidge v. New Hampshire (1971) 403 U.S. 443, 465 [lawful entry based on exigency or consent permits seizure of items observed in plain view]), during the first entry for a protective sweep. The officers responded to the defendant’s home in response to a call that shots had been fired inside the house. The defendant was ordered out, and he came out with his girlfriend. The defendant was handcuffed and a patdown revealed a loaded handgun. The defendant told the officers to help him, referring to his son, inside of the house. The court found that consent to enter may be express or implied. (People v. Frye (1998) 18 Cal.4th 894, 990.) An officer is permitted to reenter to seize evidence observed in plain view during a lawful entry but not initially seized because an officer was doing a duty that took priority over the seizure of evidence. (People v. McDowell (1988) 46 Cal.3d 551, 564; see also People v. Justin (1983) 140 Cal.App.3d 729, 740.) Exigent circumstances justified the warrantless entry by second wave responders a few minutes later. </div>
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11. <b>People v. Self</b> (2012) Cal.App.4th , reported on April 5, 2012, in 2012 Los Angeles Daily Journal 4338, the Fourth Appellate District, Division 1 held that the trial court erred in finding that an Arizona prior qualified as a prior DUI as all elements of the Arizona prior did not contain the same elements (see People v. Crane (2006) 142 Cal.App.4th 425), was not the categorically equivalent to a California DUI conviction where the level of impairment required for conviction under the Arizona law was less than that required in California. If the prior conviction was for an offense that can be committed in multiple ways, and the record does not disclose how the offense was committed, a court must presume the conviction was for the least serious form of the offense. (See People v. Delgado (2008) 43 Cal.4th 1059, 1066.) The trial court erred in relying on handwritten notations on Arizona judgment form to find that defendant’s conduct in the Arizona case would have supported conviction in California as they are not part of the record of conviction (People v. Crane, supra, 142 Cal.App.4th at p. 434), and thus did not constitute a prior conviction for enhancement purposes. </div>
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12. <b>People v. Finney</b> (2012) Cal.App.4th , reported on April 5, 2012, in 2012 Los Angeles Daily Journal 4331, the Second Appellate District, Division 6 held that the trial court did not err in distinguishing People v. Benson (1998) 18 Cal.4th 24, 35, fn 8, and People v. Burgos (2004) 117 Cal.App.4th 1209, and did not strike a strike from the defendant’s prior convictions and found him to be a “three striker” and sentenced him to a life term. The defendant’s prior involved an attack on the victim with a skateboard, fled in the erroneous belief victim was dead, and then returned 30 minutes later, where he saw the victim was alive and kicked him in the head three times, and as a result was convicted for mayhem and assault constituted two separate strikes. Additionally, the trial court did not abuse its discretion (see People v. Superior Court (Alvarez) 14 Cal.4th 968, 977-978), in denying his Romero motion to strike a strike, where defendant had a history of violent crime and failed attempts at parole and probation, and therefore fell inside and not outside of the Three Strikes Law. (People v. Carmony (2004) 33 Cal.4th 367, 377-378; see also People v. Williams (1998) 17 Cal.4th 148, 161.) </div>
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13. <b>People v. Wright</b> (2012) Cal.App.4th , reported on April 6, 2012, in 2012 Los Angeles Daily Journal 4379, the Second Appellate District, Division 3 held that the trial court did not err in failing to instruct sua sponte on voluntary intoxication causing unconsciousness (CALCRIM 626), nor involuntary intoxication causing unconsciousness (CALCRIM 3426), where there was no substantial evidence to support defendant’s claim that he was poisoned. (See People v. Halvorsen (2007) 42 Cal.4th 379, 417.) There was substantial evidence that the defendant was conscious at the time of the crime. Additionally, the defendant could not claim as a matter of law that he was involuntarily intoxicated by the introduction of an illicit substance into the drug he was ingesting illegally. (People v. Gallego (1990) 52 Cal.3d 115, 183-184.) Where the trial court found a prima facie showing had been made that defense counsel discriminated against Caucasians in exercising peremptory challenges, and defense counsel responded by expressing a bias against women, the trial court properly sustained the prosecution’s objection and accepted the prosecution’s proposed remedy of reseating the juror challenged by the defense. The trial court did not err in having peremptory challenges and Wheeler motion made in open court rather than at sidebar. (People v. Willis (2002) 27 Cal.4th 811, 813 [the court "may" challenge at sidebar, but it is not mandatory].) The matter is within the trial court’s discretion, and any prejudice was cured by the instruction that peremptory challenges were a matter of right and should not be treated as an insult to challenged venire members. (Id., at 821-822.) </div>
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14. <b>People v. Wade</b> (2012) Cal.App.4th , reported on April 11, 2012, in 2012 Los Angeles Daily Journal 4510, the First Appellate District, Division 5 held that section 243, subdivision (f)(5)’s reference to the victim’s need for medical treatment is irrelevant to whether the victim sustained “serious bodily injury” within the meaning of section 243, subdivision (d), as that phrase is defined solely by section 243, subdivision (f)(4). (People v. Longoria (1995) 34 Cal.App.4th 12, 16; see also People v. Burroughs (1984) Cal.3d 824, 831 [serious bodily injury as used in § 243 is essentially equivalent to great bodily injury as used in § 12022.7].) Additionally, the recent amendment to the definition of grand theft, which increases the monetary threshold from $400 to $950, must be applied retroactively to cases not yet final when the amendment took effect. (See People v. Vinson (2011) 193 Cal.App.4th 1190, 1194-1199; accord In re Estrada (1965) 63 Cal.2d 740, 748.) Where the jury was instructed that it could find the defendant guilty of grand theft on either of two theories, that he stole more than $400 or that he took victim’s property from her person, and the evidence was undisputed that the amount of the theft was less than $950, but it was disputed whether the property was taken from victim’s person, retroactivity of the legislative amendment required that the instruction be treated as erroneous. Given the fact that there was no way for appellate court to determine which theory upon which the defendant was convicted, the error required the reduction of conviction to one of petty theft and remand for resentencing. (See People v. Guiton (1993) 4 Cal.4th 1116, 1122; see also People v. Chun (2009) 45 Cal.4th 1172, 1203.) </div>
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15. <b>People v. Kurtenbach</b> (2012) Cal.App.4th , reported on March 13, 2012, in 2012 Los Angeles Daily Journal 4635, the Fourth Appellate District, Division 1 held that where jury found that defendant intended that an arson be committed, and that he acted willfully and maliciously in connection with the arson, any error in failing to give aiding and abetting instructions was necessarily harmless beyond a reasonable doubt. (Cf. People v. Garcia (2001) 25 Cal.4th 744, 761 [an error in failing to instruct on an element, is harmless when the reviewing court can determine beyond a reasonable doubt the jury finding may be based on other instructions].) Injuries to an accomplice are not excluded from the offense of arson causing great bodily injury as it is not specifically excluded by the statute. Pouring gasoline in a structure to fuel an arson is the use of a device designed to accelerate the fire for the purposes of the sentencing enhancement in section 451.1, subdivision (a)(5). (See People v. Andrade (2000) 85 Cal.App.4th 759 [either the use of a Molotov cocktail or breaking a gasoline-filled bottle by throwing it on the floor and then light a match].) Proof that defendant committed arson of his own house and thereby damaged his neighbor’s was sufficient to establish the “malice” element of vandalism of his neighbor’s house. (See In re V.V. (2011) 51 Cal.4th 1020, 1028 ["malice in law" may be presumed or implied from the intentional doing of the act without justification or excuse or mitigating circumstances].) The Fifth Amendment does not protect the defendant against a prosecution for concealing or knowingly failing to disclose an event affecting an insurance benefit, in violation of section 550, subdivision (b)(3), based on the defendant’s concealing, during his insurer’s investigation of a fire at defendant’s house, the fact that defendant planned the fire. The trial court did not err in failing to stay either the arson count or concealing an insurance claim (§ 550, subd. (b)(3), since the two crimes constituted a course of conduct divisible in time, and therefore, the defendant can be punished for both. (People v. Beamon (1973) 8 Cal.3d 625, 639, fn.11.) However, the trial court did err in failing to stay the punishment for vandalism when considering the arson count, since this is an indivisible course of conduct incident to one objective (People v. Perez (1979) 23 Cal.3d 545, 551.) The preclusion of section 654 for multiple victims is not applicable here since the crimes are not both against a person (see People v. Miller (1977) 18 Cal.3d 873, 886), as vandalism is not a crime against a person. </div>
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16. <b>People v. Allexy</b> (2012) Cal.App.4th , reported on April 17, 2012, at 2012 Los Angeles Daily Journal 4747, the Third District held that the trial judge erred by ordering the defendant, who pled guilty to child endangerment, which is an offense for which sex offender registration is discretionary and not mandatory, to register as a sex offender following revocation of probation where no such order was made at sentencing, but the decision was bifurcated if and until the defendant violated probation. The trial court may, however, order registration at time of sentencing but suspend the requirement, thus reserving the right to impose it if probation is subsequently revoked. (See § 290.006.) The trial court’s error in ordering registration following probation revocation did not require reversal, where the judge announced at sentencing that he would order registration if probation were later revoked, and the claim of error was forfeited or the error invited because defense counsel acquiesced to the court’s procedure. </div>
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17.<b> People v. Borg</b> (2012) Cal.App.4th , reported on April 19, 2012, in 2012 Los Angeles Daily Journal 4927, the First Appellate District, Division 1 held that the 2011 amendments to section 4019, that grants custody credits to enumerated classes of prisoners previously denied them, but only with respect to conduct occurring after the operative date of the amendment, does not deprive those classes of prisoners of equal protection. The Court of Appeal found that treating such prisoners differently than other classes of prisoners, who were permitted to earn additional credits for past conduct, had a rational basis in that legislature may have decided that the nature and scope of fiscal emergency required granting additional credits to the specified classes of prisoners previously denied them only after the effective date of the amendment. This case is contrary to the holding in at least Payton v. Superior Court (2012) 202 Cal.App.4th 1187. </div>
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18. <b>People v. Hernandez</b> (2012) Cal.4th , reported on April 20, 2012, in 2012 Los Angeles Daily Journal 4970, the California Supreme Court held that the trial court’s gag order, which precluded defense counsel from discussing with defendant a sealed declaration of a testifying prosecution witness and a transcript of that witness’s plea-agreement proceedings, did not so completely deprive defendant of his right to counsel as to constitute structural error reversible without a showing of prejudice, but gag order did implicate the defendant’s right to counsel in a manner requiring a showing of prejudice before reversal would be required. Trial court’s error in barring defendant’s attorney without justification from discussing with him the existence or contents of a sealed transcript of a witness’s plea agreement proceedings and a sealed declaration executed by the witness as part of those proceedings is subject to harmless-error review. Unwarranted judicial interference with effective communication between defendant and attorney is per se reversible error only in extreme circumstances, such as where defendant is denied all communication with counsel for an inordinate period of time or during a critical stage of proceedings. (See Geders v. United States (1984) 466 U.S. 80; see also Perry v. Leeke (1989) 488 U.S. 272 [discussions during a recess]; Morris v. Slappy (1983) 461 U.S. 1, 11 [not all restrictions on communication are invalid].) </div>
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19. <b>People v. Bejasa</b> (2012) Cal.App.4th , reported on April 20, 2012, in 2012 Los Angeles Daily Journal 4981, the Fourth Appellate District, Division 2 held that the trial court erred in failing to suppress statements made by the defendant to the police after he was handcuffed and placed in a police car prior to being advised of his Miranda rights. Of the statements that appellant sought to be suppressed was his estimation of time, made during a “Romberg”, or modified attention test (FST), was testimonial evidence and should have been suppressed. The court found that it was error to admit all of the questioned evidence, but that the error was harmless.</div>Justin E. Sterlinghttp://www.blogger.com/profile/12854776446167678743noreply@blogger.comtag:blogger.com,1999:blog-6796899876551918250.post-28849355590780228552012-01-30T11:41:00.000-08:002012-01-30T11:41:17.857-08:00Assembly Passes Bill Sparked By Caylee Anthony Murder CaseThe Assembly approved new parental obligations today in response to a much-publicized Florida case in which Casey Anthony waited a month to report her 2-year-old daughter missing but ultimately was acquitted of her murder.<div><br />
</div><div>Assembly Bill 1432 would make parents or guardians guilty of a misdemeanor if they knowingly fail to report, within 24 hours, the disappearance of a child younger than 14. Maximum penalties would vary, however.</div><div><br />
</div><div>Offenders could be jailed for a year and fined $2,000 for failing to report the death of a child from crime, or one who is missing under circumstances that would suggest danger.</div><div><br />
</div><div>Violations stemming from disappearances in which no danger of physical harm exists would be punishable by maximum jail sentences of six months and fines of up to $1,000. </div><div><br />
</div><div>The bill declares itself "Caylee's Law."</div><div><br />
</div><div>AB 1432, by Assemblywoman Holly Mitchell, D-Los Angeles, passed the Assembly with bipartisan support, 66-3. It now goes to the Senate. If signed into law with two-thirds support from the Legislature, the measure would take effect immediately.</div>Justin E. Sterlinghttp://www.blogger.com/profile/12854776446167678743noreply@blogger.comtag:blogger.com,1999:blog-6796899876551918250.post-89983609665808931822012-01-30T11:29:00.000-08:002012-01-30T11:35:52.003-08:00Judge Strikes Parole-Revocation Provisions In California LawA Sacramento federal judge has struck down as unconstitutional the part of California's so-called Victims' Bill of Rights that governs parole revocation.<br />
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</div><div>The law, enacted by voter approval of a 2008 ballot initiative known as Proposition 9, was a sweeping amendment to the state constitution, conferring a long list of entitlements on crime victims. The sections dealing with parole revocation were made part of the state's Penal Code.</div><div><br />
</div><div>U.S. District Judge Lawrence K. Karlton ruled last Tuesday that those sections fall short of providing the minimum due process guaranteed by the Constitution and two U.S. Supreme Court decisions, <i>Morrissey v. Brewer </i>– a landmark in 1972 – and <i>Gagnon v. Scarpelli </i>one year later.</div><div><br />
</div><div>The requirements missing from California's law include "a written summary of the proceedings and of the revocation decision, the opportunity to present documentary evidence and witnesses, and disclosure to the parolee of the evidence against him," Karlton wrote in a 26-page order.</div><div><br />
</div><div>The judge held that an injunction he issued in 2004 as part of a now-18-year-old, still-ongoing class-action lawsuit on behalf of parolees is "necessary to remedy constitutional violations created" four years later by the voters.</div><div><br />
</div><div>The judge found to be unconstitutional the provision of Proposition 9 that parolees have a right to an attorney at the state's expense only if the parolee is indigent and appears incapable of speaking for himself. Karlton said the California law overly restricted a parole agency's discretion and allowed a parolee to go uninformed of his right to request counsel.</div><div><br />
</div><div>Most importantly, Karlton added, a right to a lawyer is presumed if the parolee makes a credible claim that he did not violate parole, or a credible claim of mitigating circumstances. Thus, Karlton concluded, his injunction "is a properly tailored remedy, aimed at curing violations of due process rights."</div><div><br />
</div><div>Karlton next targeted the state law provisions entrusting to the Board of Parole Hearings "the safety of victims and the public," and prohibiting the board from weighing the cost or burden to the taxpayers that may result from continually sending people back to prison.</div><div><br />
</div><div>The judge said his injunction directs the board to use remedial sanctions rather than parole revocation when appropriate, thus reducing the number of returnees and the overall inmate population – the latter being a Supreme Court-mandated goal.</div><div><br />
</div><div>The law further violates the Constitution by denying a parolee a "neutral and detached" hearing body to make parole revocation decisions, Karlton stated.</div><div><br />
</div><div>The state places "a thumb on the scales of justice and tips the balance towards incarceration. By entrusting the board only with the safety of victims and the public, (the law) strips the board of its duty to balance those factors with a parolee's liberty interest," the judge wrote.</div><div><br />
</div><div>Yet another part of the law allows the unconditional use of hearsay evidence at parole revocation hearings, denying a parolee the "right to confront and cross examine adverse witnesses … unless the government shows good cause," Karlton said.</div><div><br />
</div><div>Only two paragraphs of the parole revocation statute were left standing. Karlton decided they are not viable by themselves, so "no portion of the statute can be preserved."</div><div><br />
</div><div>One of the proposition's requirements survived and will be included in Karlton's injunction: that a revocation hearing be convened no later than 45 days after the placement of the parole hold, as opposed to the 35 days required by the injunction.</div>Justin E. Sterlinghttp://www.blogger.com/profile/12854776446167678743noreply@blogger.com