California Petty Theft Laws: Detention and Civil Demands

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Unless specifically set forth as grounds for Grand Theft, the Petty Theft laws apply, as follows:

  •  Petty Theft is often referred to as shoplifting; as a general rule it takes place when one obtains property by theft, that involves a value less than nine hundred fifty dollars ($950);
  • A first conviction generally constitutes and is punished as a misdemeanor. Penal Code Section 490 provides for a fine for each violation of up to one thousand dollars ($1,000), or up to six (6) months in the county jail, or both;
  • The prosecutor (District Attorney or City Attorney) has the discretion to charge the defendant as an infraction if the person has no prior theft or theft-related conviction (Section 490.1);
  • In addition to other civil remedies, the merchant can make a civil demand and collect up to five hundred dollars ($500), plus costs. In addition, the store may collect the retail value of the merchandise;
  • Pursuant to 490.5 (f) (1) of the Penal Code, a merchant may detain a person for a reasonable time to conduct an investigation if the merchant has probable cause to believe the person of interest unlawfully attempted to take or has unlawfully taken merchandise from the premises of the store.
  • A reasonable amount of force not likely to cause great bodily harm may be used if it is necessary and, therefore it becomes, justifiable, to protect oneself and/or to prevent the person who has been detained from fleeing &/or the loss of the merchant’s property;
  • Following the above principles, the merchant may request the person who has been detained to voluntarily surrender the item in question, and if refused, is permitted to conduct a reasonable search to recover the same. This involves and is limited to handbags, packages, shopping bags and/or other property possessed by the detained person; this search does not, however, encompass any clothing worn. Crimes Against Property:

Although a merchant may demand attorney’s fees or threaten to cause harm to a person’s credit, they do not have the power to do so [attorney’s fees are prohibited in such a case, and because there has been no adjudication of money owed, they cannot report someone to a credit bureau]. Also, it may be deemed a violation of State extortion and Federal collection laws for a merchant to threaten criminal &/or civil action

The facts and circumstances differ in one case from another and, therefore, the information in this Blog is not intended as legal advice.

California Measure on November Ballot to Repeal Death Penalty

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Residents of California over 18 years of age and a U.S. citizen who are not currently in prison or on parole for the conviction of a felony and not currently found mentally incompetent by a court will have an opportunity to vote in the November election whether to repeal California’s death penalty law.

If passed, the initiative is intended to repeal capital punishment and replace it with life in prison without parole. Proponents of the measure claim the initiative will reduce the number of inmates as well as lengthy appeals, thereby saving an alleged $150 million per year. In 2012, a similar proposal was barely defeated.

There are over 700 prisoners on Death Row in California, the state with the largest number in the nation. Since 1977 when California reinstated the death penalty, there have been only 13 executions. In January, 2006 and after our last execution, a federal judge concluded there were flaws in the lethal injection procedures along with inadequate training of prison staff and, therefore, the risk of an improper and painful execution was unjustifiable. Since that time, there has been an inadequate supply of single barbiturate (previously used three drug combination) injectable drugs, if any; Judges in the Federal Courts also have not approved new prison procedures and protocols

For an earlier Blog written by this attorney regarding this subject, click here:

Is There Gender Bias in The Movie and TV Industries?

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On May 11, 2016, the Los Angeles Times reported a story relating to a previous request by the American Civil Liberties Union for the U.S. Equal Employment Opportunity Commission to investigate a pattern and practice of gender bias in the hiring of primarily male film and TV directors, and more recently to include producers, actors studio executives and agents.

The ACLU had referenced a University of Southern California study in which less than 2% of directors of the 2013 and 2014 top-grossing films were women. The LA Times reporter noted there were nearly a combined 50 new films announced for 2018 by Paramount Pictures and Twentieth Century Fox in which there was not even a single women director. Certainly, these statistics are quite telling, regardless of your position on the subject.

The challenge for the EEOC, and the filing of a civil law suit against and/or mediation involving this industry is complicated by the fact there are a great number of individuals in the hiring process, such as the Directors Guild of America, producers, agents, managers and studio executives.

 

CALIFORNIA SUPREME COURT RULES EMPLOYER MUST PROVIDE SEATS FOR EMPLOYEES

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In a unanimous opinion, NYKEYA KILBY vs. CVS PHARMACY, INC., Case # S215614, on April 4, 2016, the Supreme Court of California held an employer must provide suitable seating for its employees as long as it is reasonable to do so in the particular work environment. In other words, the employer must provide seats for their employees:

  1. When the tasks being performed at the location the employee works (physical layout of work place) reasonably permit individuals to be seated;
  2. Utilizing a seat does not interfere with him/her performing any of the tasks that may require standing;
  3. And, it is the burden of the employer to establish the unavailability of suitable seats, rather than the obligation of an employee.

The underlying case arose when an employee at CVS was advised she had to stand while performing her duties and functions, which included operating a cash register, organizing and stocking shelves with products, as well as in front of and behind the sales counter, and cleaning the register. It is not questioned that certain functions, such as gathering shopping baskets, vacuuming, and removing trash are active duty tasks that cannot reasonably be performed while seated. In a companion case, a bank teller performing duties at his/her station, such as cashing checks, accepting deposits,  and processing withdrawals should be contrasted with the duties away from his/her window-counter, the latter including such tasks as escorting customers to the safe deposit boxes in the bank vault or assisting customers at an ATM machine.

The defense tried unsuccessfully to distinguish “standing” from “seated” tasks. However, the court stated:

“There is no principled reason for denying an employee a seat when he spends a substantial part of his work day at a single location performing tasks that could reasonably be done while seated merely because his job duties include other tasks that must be done standing.”

……

“Courts should look to the actual tasks performed, or reasonably expected to be performed, not to abstract characterizations, job titles or descriptions that may or may not reflect the actual work performed. Tasks performed with more frequency or for a longer duration would be more germane to the seating inquiry than tasks performed briefly or infrequently.”

The reasonableness standard allows for more flexibility; hence, an employee would be entitled to a seat if the duration and frequency of the seated task is not negligible (those tasks that are performed briefly or infrequently). Even when employees are not engaged in the active duties of their work but are required to stand at a specific location, an adequate number of suitable seats must be available in reasonable proximity to the work area for employees to use as long as it does not interfere with the performance of their tasks and duties.

Rather than utilizing an employer’s business judgment as to whether the work must be performed while standing, the Court concluded it is rather an objective inquiry that takes into consideration, but is not based solely upon, an employer’s reasonable expectations regarding customer service and the employer’s role in setting job duties. As such, however, it does not allow employers to arbitrarily define which are “standing” tasks.

Do you or someone you know work at a designated location with a suitable seat? If not, the next question is why not?

 

Do Corporations Follow the Golden Rule?

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The “Golden Rule” is a principle or practice in which one has a moral and ethical desire to be truely concerned about others. A commonly used word to describe the concept is “selflessness.” This process and concept involves the situation in which an individual performs an activity, deed and/or an act without an expectation of any reward, compensation, incentive or reciprocal benefit, even though there is an associated cost involved. It is also referred to as the “Ethic of Reciprocity.” Although there is or may be an expense or price that is incurred, such as time invested, products or services delivered, money incurred, &/or inconvenience, it is far outweighed by the pleasure and achievement realized by doing good (enhancing the quality of life and welfare for others).

In more simple terms, it is “doing unto others as you would have them do unto you,” without any expectation of an external reward. This is a virtue and a moral excellence, above all other standards of behavior.

While this principle applies to individuals, what about private and public businesses? Do all corporations value the Ethic of Reciprocity or Golden Rule in their respective trade or business? Have you experienced a business or individual that can be described as morally bankrupt?

Interestingly, I have a personal experience that has been a crisis and sadly lacking in the Ethic of Reciprocity:  I continue to experience multiple deficiencies, defects and incompatibilities with a brand new computer with Windows 10 installed and Office 2016. After spending countless hours communicating with Microsoft technicians, even having escalated the problems all the way to Level 3, they had the audacity to close their files, yet they failed to resolve the constant flow of thousands of duplicate emails into my Outlook inbox (some as many as 20 of the identical email), the failure of the “search” bar to function, inconsistent spell check process, failure of the auto fill process,  including other defects and deficiencies. It strains credulity that I did not receive any reply to both fax and mail correspondence to their CEO, hoping that Microsoft would have an Executive Department interested in such problems.

What guiding principles we subscribe to, emulate, pursue and/or strive to achieve, whether as an individual, private or public business or corporation, defines who we are.  

Fortunately, there are countless great companies that excel in the delivery of goods and services. It is those individuals and businesses who can be proud of what they do and who they are. If you experience disappointment from an entity or business, it is hoped the Golden Rule will be followed and you will ultimately obtain satisfaction from someone associated with that company if you do not give up. Most importantly, only you can be the judge as to the standards you maintain, and those practices and principles you desire from others.

 

 

Why Vote – The Reasons Are Infinite

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As we look ahead in 2016, the answer to the question seems obvious to most of us, yet there are still some who feel it makes no difference and, therefore, they do not vote.  Sadly, these individuals are often unaware of and not interested in what happens in their “world” since it does not fit their agenda (the things that matter to them). The majority of individuals who do vote, however, consider it  the single most important opportunity we have to provide a voice to the government that operates in cities, counties, and states as well as the federal government.

In the United States, we have a democracy and that means we have the ability and right to choose the leaders we elect and, thereby, each of them are intended to represent our opinions, interests, beliefs, and desires. Hence, the right to vote is a fundamental part of the fabric of our country. In contrast, there are some countries in which the right to vote is illusory at best;  the people do not get to elect their leaders.

No one can dispute that voting impacts nearly every single activity, function and part of our lives, including where, how and what we drive; the food that can be sold and what we eat; the water we drink and/or can use; the health insurance we purchase; the clothes we buy; the education we obtain; where we reside; the laws, rules and regulations that are enacted or repealed;  the occupational and professional licenses that are granted to individuals and businesses of infinite variety; the decisions made by our legal system (where judges are appointed or elected); along with the portion of the income we earn that is allocated to operate the respective city, county, state and federal government.

In summary, we should not take for granted the power and fundamental right we have to vote [as responsible participants in society], and in so doing provide a mandate for an existing system and/or bring about change. The most important corollary to this is to be thoroughly informed so the vote you make in an election reflects who and what you want.

 

 

Hiring An Attorney Who Is Tough, Smart & Knows the Law

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Samuel Eugene SpitalDo you or someone you know have a professional or occupational license and facing an investigation or charges by the State of California? Are you seeking a professional or occupational license? Have you considered your future endeavors and how the potential outcome of the present situation can adversely impact the choices you may later have and/or want to make?

Whether it appears to be only a call or letter from the government, you want to be certain as to your rights and possible liabilities, and you want a lawyer who is tough, smart and knows the law. Clearly, anyone who has had such an encounter knows what might seem an innocent and non-adversarial communication from the government or an investigator can be just the opposite. It is not about “telling the truth because you have nothing to hide.” Rather, what you say can be misinterpreted and might constitute an admission against your interest (in law – it can be construed as a confession).

Hence, whether you are applying for a license or have one, the risks as well as rewards can be substantial. If you have received an Accusation by the Board or Agency that issued your license or you are planning to apply for a state license or have received a denial letter, it is indisputably a defining moment in your career and, therefore, should be treated as a critical event that justifies obtaining truly experienced counsel.

The intent and scope of legal services should be to provide you with a full and proper evaluation of your case, as well as to afford you legal advice as to your rights, as well as your legal, and financial (and perhaps emotional) exposure, including the alternatives that are available. In addition, to protect you from an otherwise powerful state government and on your personal behalf to level the playing field, you also want an attorney who will fully assess and rightfully advance your legal rights.

A prominent attorney is able to maintain such a position by him/her having integrity, as well as being fully experienced and highly skilled in presenting thorough legal arguments that are not only comprehensive, but most importantly are both in writing and legally sound. This  takes more than an idle analysis, but rather proper research; detailed planning of the strategy in a case; it involves an exhaustive review of all of the facts; a wise and accurate evaluation of the records; correctly interviewing lay and knowledgeably conferring with expert witnesses who are highly regarded in the profession; eventually, the proper foundation and scrutiny must be accomplished to truly level the playing field for the skilled and experienced lawyer to be in a position to confer with the prosecution side, persuasively argue and present as well as to negotiate and achieve a winning solution.

If a winning result is what you want, you should not expressly or implicitly place a constraint on the number of hours and time that your lawyer deems appropriate to strengthen your defense and develop a compelling offense. Clearly, you can’t afford to not do this if you are truly motivated and honestly desire to obtain a favorable outcome.

In the end, when you consult with and retain a lawyer who is tough, smart and knows the law, you are less likely to look back and wish you had done so. And, there are readily available tools to help you evaluate the criteria, such as percentage of their practice devoted to Administrative Law, years in practice, prior specialized experience, their proven success, and most importantly what other clients and leading attorneys have consistently said in the past and continue to say in the present about the lawyer you select. And, if you ultimately choose price as an overriding factor (paying the lower of retainer fees to a lawyer), it is more likely he or she will spend less time on your case. For a free consultation, call now 619.583.0350 or send an email to Sam Spital, Managing Lawyer, with a few ranges of time for him to call back. You have nothing to lose, there is no hassle, you will come away with more insights and, therefore, believe there was and is “everything to gain.”

2016 New California Laws

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There are about 800 new California laws that went into effect on January 1, 2016. Here are a few noted by the following topics:

Driving Under the Influence – drivers convicted of a DUI (whether alcohol or drugs) in four California counties [Alameda, Los Angeles, Sacramento & Turlare], under an existing program that will remain in effect until July 1, 2017 will be required to install an ignition-interlock device (IID) on their cars. The IID registers alcohol on the driver’s breath, and is designed to prevent the vehicle from starting based on a pre-determined level of blood alcohol.

Earbuds – earphones, headsets or earbuds in both ears cannot be used while driving a vehicle or bicycle

Electronic Surveillance – the police, sheriff and law enforcement must first obtain a search warrant before accessing your e-mail, text, social media, data and other electronic information, unless it is determined to be an emergency situation.

Gun ban – those who have a CCW permit (individual who may legally carry a concealed weapon) will not be allowed to bring their guns on school and/or college campuses without advance permission from the school or campus authority.

Gun-violence restraining order – individuals who fear a family member could hurt their self or others can apply to the court for a gun-violence restraining order to limit the person’s access to firearms for up to one year

Medical marijuana rules – a statewide agency will now license and regulate all aspects of the cultivation, manufacture, transportation, storage, distribution and sale of medical marijuana.

Motor-voter registration – adults who apply for or renew a California driver’s license will automatically be registered to vote, although one can opt out if you do not want to be registered.

School Children – must be vaccinated to go to public school

Toy guns – are outlawed (can’t be displayed) in public unless brightly colored such as red, pink or yellow

Work Pay – equal pay is required for men & women. It is not less burdensome for a female employee to challenge her employer if there appears to be a disparity in the pay women receive in contrast to men performing similar work. Employers are also barred from prohibiting workers from talking about their &/or their co-workers’ pay in order to determine wage fairness. The minimum wage in California is now $10/hr. However, fewer minimum wage earners now work a full 40 hour work week as a result of the expanded wage, health, and benefit laws involved in operating a business.

This is a summary only and not intended to constitute legal advice. For the official webpage and guide of the Bills the California Legislature enacted in 2015, click: Bills Enacted in 2015

Are Firearms The Real Problem or People Who Abuse them?

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With the escalating scourge of mass killings, we are obliged to examine both the underlying causes of and potential solutions to drastically reduce mass shootings, by those with depraved and evil minds, sociopaths, psychopaths, terrorists and barbarians who without any conscience (morals) whatsoever use military style assault weapons and/or stockpile and then utilize huge quantities of bullets and large quantities of ammunition magazines to murder innocent and unsuspecting individuals regardless of age, race, sex,  .

It is noteworthy, the subject of colossal shootings is complex and there are clearly two sides of the equation. Moreover, these concerns are not new; sadly and repeatedly have political overtones. Hence, it is hoped the reader of this blog will perform his/her own search on the internet to review state and federal firearms laws, exceptions, limitations and other issues, including actual statistics. We should be mindful that these are serious and horrific acts, yet we need to acknowledge there also are far more deaths that are due to other causes (such as deaths due to driving under the influence, but for the sake of this comment only and albeit an over simplification and generalization, but we do not outlaw or seriously limit the sale &/or consumption of alcohol).

Proponents of gun control claim we need stricter gun control laws. Opponents claim we already have strict regulations, and in those jurisdictions that have “gun-free zone” laws in which it is prohibited from having a firearm these locations have a far higher number of shootings.

First, it is noteworthy, that the Federal Gun Control Act, enacted in 1968, establishes a list of those (such as felons) who are prohibited from possessing, obtaining or receiving firearms and ammunition. In addition, there are many other restrictions as to the sale, use, possession, transfer, etc. of such weapons. Click the following link for the 247 page Federal Firearms Regulations: Federal Reference Guide

Second, California has one of the strictest gun control laws in the United States. Yet, the recent shootings in San Bernardino, a large metropolis in California, occurred even though assault weapons were used and are already against the law. Also, California has a huge number of restrictions, such as limiting large capacity magazines that hold a dozen or more bullets. Click the following Link for the California Firearms Laws summary: California Firearms Law

Is the solution to enact tougher gun laws? If so, why did the most recent shootings occur in three states (California, Colorado and Oregon) that already have very strict gun laws?

Some pundits argue the states that have the most lenient rules and regulations regarding firearms have the lowest number of mass shootings; perhaps, because terrorists look for sites where they will not face opposition by individuals that “carry” weapons. Maybe that is one of the reasons movie theaters and malls, shopping centers, schools, churches and social centers, etc. have been the place of choice and selected by such terrorists. These same pundits encourage individuals to arm them self to be able to defend and/or fight back; they note that police cannot be on every corner and the drive time to respond is too great to risk your death or anyone else in the interim. Some advocate we urge our legislators to pass emergency legislation to increase the number of police, sheriff and FBI, and give them the power they need to accomplish their job.

It is hoped this blog will open a further dialogue in the reoccurring debate that includes many who claim taking away &/or more severely limiting those law abiding individuals who desire to possess and/or carry firearms will not prohibit the lawless, who it seems inevitably find ways to obtain whatever weapons they desire, whether illegally or not. Choose the narrative you feel comfortable with, but be open to seeking a realistic solution that is based upon logic, reason, and, of course, our United States Constitution, and not political rhetoric. Contact your state and federal legislators to voice your opinion.

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