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California Bail Policies

Posted on June 2, 2017 by Caroline Anderson - Senior Support Specialist

There are over one million adult arrested in California on an annual basis. Current statistics reveal that approximately one third of these individuals are bailed out, and only about three percent (3%) fail to appear in court for one or more legal proceeding.

The Eighth Amendment of the U.S. Constitution guarantees equal protection of the law and the right to reasonable bail, but this subject is not simple and for some it is controversial. The intent of the bail system is to protect an individual who is presumed innocent from being punished unless and until proven guilty. It involves the payment of money or a deposit of security to assure a defendant who is charged with a crime will be present in Court on each of the hearing dates. A fixed amount of bail is established by case law or statute, and it is based upon the severity of the crime(s) and the flight risk of the defendant. In other words, bail is used as an incentive for the defendant to show up for each of the court proceedings

It has often been argued that being required to post bail places an unfair and unreasonable burden on the middle class, and even a far greater challenge for the poorer population who cannot afford to post large sums of money to be released from jail. Because one is considered innocent until proven guilty, which requires proof beyond a reasonable doubt, the opponents of California bail policies point to the fact far too many are required to remain in jail because they cannot afford to post bail, and these very same individuals may later be deemed not guilty and/or likely enter into a plea agreement of a much lesser crime, which if that reduced offense was charged in the beginning, the bail would have been much lower. These opponents of the California bail system also argue taxpayers have to pay for the time and costs to maintain a defendant in jail, such as the salary of the Deputy Sheriffs, food and many other expenses related to the incarceration. It is further postulated that lawyers who have contested bail by taking the case to one of the six districts of the California Courts of Appeal, universally have been unsuccessful in reversing the Superior Court’s Order re: Bail.

Proponents of the bail system in California contend that Superior Court Judges do an excellent job in their role of determining at a bail hearing or arraignment whether the facts support no bail (O.R. or free on one’s own recognizance); and/or imposing a lesser or higher bail amount. The Court reviews the defendant’s prior criminal history, if any; the seriousness of the current charges; whether there is potential danger to the victim(s) of the crime and/or their family; the potential risk of harm to the public safety and, therefore, society at large; whether the defendant has ever failed to appear and, therefore, may now as well be a flight risk; and/or a host of other facts, including the “ties” the defendant has to the community, such as full time employment, a lease or ownership of his/her residence; and, family members; all of which tend to be relevant to the Court’s order regarding the extent of bail, if any.

Should a Lawyer Predict the Outcome or Result in a Case?

Posted on May 7, 2017 by Caroline Anderson - Senior Support Specialist

It is not uncommon for a prospective client and, for that matter, even an existing client, to inquire as to the likely result(s) in the handling of their case.

It is simply unwise to predict an outcome or even worse to speculate on what can be expected. I do not predict the expected or anticipated result without first doing the required work-up. Moreover and even after performing the necessary case evaluation, factual and legal analysis, and requisite strategy, I still need to prepare and execute a complete plan of action.

It seems reasonable to state there being over 215 five-star client reviews and endorsements from lawyers all over California and the United States; having earned the “Client’s Choice Award” for ten (10) years in a row since 2007; having served as a Deputy Attorney General for the California Department of Justice between 2000 through 2008 as a prosecution lawyer at the Attorney General’s Office; and, since that time, concentrated my law practice on the defense side of cases with tested protocols we utilize that have produced a winning record.

As a lawyer, there are two guiding and profound principles that are etched in my brain; they are an integral part of my thought process, and have been my approach for four decades: “what I don’t know, I don’t know.” There is a second I learned from the first day at Loyola Law School: “when you think you will win, you will likely lose.” In short, I practice law without bravado, and I am better for it because I try harder and work longer to find every possible way to develop a defense. Often, and even more important, is my highly effective practice to establish and develop a compelling and comprehensive “offensive strategy” [for those who know the world of sports, it has been said that more points are obtained by the offense plays that are made].

We find it priceless to first obtain all of the evidence, which is commonly referred to as the “discovery” from the Deputy District Attorney or Assistant U.S. Attorney in a criminal case; the Deputy Attorney General handling a professional or occupational license matter; and, the Department or Bureau Legal Counsel handling the prosecution case. The next step is to thoroughly review and fully analyze the prosecution evidence [this process cannot be done in an office interview with a client or on the telephone]. Some lawyers may do this quickly, however, there is too great a risk that one might overlook a legally significant fact, if not much more. The next step is to request and initially obtain a lengthy written rebuttal from our client, which at times is 10, 20, or even far more pages in length; we do not rely upon an abbreviated version that would only be possible during a teleconference or even an office meeting. There are multiple other steps as part of my law firm’s protocol before I and/or my colleagues are able to fully understand a case and then to establish an appropriate plan of action. We simply do not provide legal advice with less; we do not predict a result nor do we gamble on the outcome.

In addition, it has been my practice to utilize forensic experts [the trial science] because only through an expert evaluation can a lawyer know what is truly the standard practice that is relevant to a specific set of facts. Even though I spent over seven (7) years serving as a Deputy Attorney General and nearly four decades as a Professional License Defense Lawyer, I do not speculate on how to obtain a winning result. My clients deserve more! In summary, I tell prospective clients: “I cannot predict a result, and no experienced lawyer can do so without a thorough examination of all of the facts and applicable legal principles.” Most importantly, “the more time and work performed, the greater opportunity for a better result.”

For your complimentary attorney teleconference, call Spital and Associates at 619.583.0350. It is even more helpful for you to visit the Contact Us page of this website and send an email with the details of your situation, information and questions you have, along with the desired action you wish a lawyer to take on your behalf; notably, it will be answered by Sam Spital, Managing Lawyer who will contact you in order to discuss the options, alternatives and steps in order to obtain your personal lawyer to level the playing field, and protect your rights and advance your interests.

Court of Appeal Recuses Orange County District Attorney’s Office in Murder Case

Posted on December 1, 2016 by Caroline Anderson - Senior Support Specialist

On November 23, 2016, the Fourth District Court of Appeal affirmed the Superior Court’s Decision recusing the entire District Attorneys Office in Orange County [OCDA] in the penalty phase of a case in which the defendant had previously pled guilty to eight counts of murder. The Superior Court concluded the OCDA had such a severe conflict of interest (its duty to fairly prosecute a case under the rule of law) with the [OCSD] Orange County Sheriff’s Department (in which the loyalty by prosecutors to the sheriffs conflicted). As a result, the court held it was unlikely the defendant could have a fair trial. This determination came after hearings over a period of six months in which nearly forty witnesses testified as to the systemic, known and prejudicial use of confidential informants that violated the constitutional rights of inmates, along with substantial discovery failures of the OCSD.

The ruling came after a murder trial heavily reported by the media involving a defendant who with a barrage of gunfire killed eight individuals at a hair salon where his former wife was working. Although the Deputy Public Defender representing the defendant eventually discovered sheriff’s deputies were using confidential jailhouse informants to solicit incriminating statements from high-profile defendants, the District Attorney’s Office and its prosecutors on an ongoing basis failed to disclose this practice.

WHAT TO DO IF YOU GET PULLED OVER?

Posted on September 17, 2016 by Caroline Anderson - Senior Support Specialist

Knowing what to do in the event you get pulled over is very important. However, it is equally important to know the reasons for getting stopped by a law enforcement officer so as to avoid being pulled over in the first place.

Here are a few of the top reasons:

Speeding. Clearly, driving above the speed limit is most likely going to catch the attention of the police, sheriff or C.H.P. Because it will take longer to react to an unexpected event, and the braking distances increase the faster one drives, this is the number one reason law enforcement pull over drivers as it obviously helps prevent accidents.
Cell Phones. With the proliferation of mobile devices, nearly everyone is using a cell phone throughout the day and night. However, using a cell phone to text and/or talk with another person while driving a vehicle is another major reason you will get pulled over. And, to deny you were using the phone or to throw the phone on the seat next to you may not be as clever as it might seem; cell phones not only maintain their own records on the device, but can be traced to the cell towers to identify the time and location of our communications.
Unsafe & Hazardous Driving. It should be no surprise that, among other things, following too closely; driving through a stop sign or red traffic signal; making an illegal U-turn; failing to yield to other vehicles; unsafe and/or improper lane changes; driving too slowly; not wearing a seat belt; and, failing to signal are at the top of the list of the various reasons for getting pulled over by law enforcement.
Vehicle Equipment. At the top of the list of equipment violations are improperly (extremely) tinted windows; headlights that are inoperative (such as burned out); expired registration license plate stickers; and, having no license plate on the front bumper. These are vehicle equipment reasons officers make traffic stops.

Considerations:

Once you become aware an officer intends for you to stop your vehicle, you should cautiously pull over to a safe area of the road or freeway as soon as possible. When the vehicle is at rest, the motor should be turned off.

The officer will request your driver’s license, vehicle registration and proof of insurance. Being evasive or denying any wrongdoing when it is clear you violated the law is not likely to be in one’s best interest. Also, do not argue with the officer. Being polite as in most situations we face is generally the wisest decision. By talking back to or arguing with an officer, it is likely the officer will be angered; and, being confrontational, probably will exacerbate the situation. Since an officer has discretion on how to proceed, there is little or no reason to get into a conflict with him/her. On the other hand, if the officer asks “Do you know why I stopped you,” it is noteworthy that anything you say can and will be used against you (see information below).

Some Relevant Laws:

The Fifth Amendment to the U.S. Constitution: This Amendment to the Constitution guarantees one the right to remain silent and to be free from self-incrimination. In the situation of a traffic stop, however, refusing to talk to an officer can result in unintended consequences. Ordinarily, a traffic stop is deemed an investigatory process; at the outset, you are not considered to be in custody and, therefore, there is no requirement to be admonished by law enforcement as to your rights. If you are asked to “voluntarily” come in to the police or sheriff’s station for questioning, you can refuse. On the other hand, once an individual is arrested, you will be taken into custody and, therefore, should obtain the advice of a criminal defense lawyer before making any statements. And, if the traffic stop escalates into an arrest, you should affirmatively invoke your Miranda rights under the Fifth Amendment and remain silent. However, it is important to do all of the above calmly and politely.

The Fourth Amendment to the U.S. Constitution: If an officer decides to detain you, there may be sufficient evidence to do so. If there is probable cause to make an arrest, however, the situation as noted earlier becomes one in which you are in “custody;” then, the officer must state (commonly referred to as the Miranda rights) you have a right to remain silent; anything you say or do can and will be used against you in Court; you have a right to an attorney; if you cannot afford a lawyer, the court will appoint one. At the point of what can be characterized as a custodial interrogation, it is highly recommended you do not answer any questions nor voluntarily provide your own narrative of the facts without the prior advice of legal counsel.

This blog is not intended as legal advice. Each situation requires a proper and thorough evaluation of all of the facts and circumstances. It is noteworthy that there are many articles on the above subject matter. In addition, you can view more information by clicking the topic Probable Cause and Miranda rights.

Federal Appeals Court Bars DOJ From Prosecuting Medical Marijuana Cases

Posted on August 18, 2016 by Caroline Anderson - Senior Support Specialist

On August 16, 2016, a three- judge panel of the 9^th Circuit of the United States Court of Appeals (this is the federal appellate court that covers California) ruled against the Federal Government, holding the Department of Justice (DOJ) cannot prosecute marijuana cases when a STATE permits medical marijuana &/or a business or individual is in compliance with state law.

In 2014, Congress passed a bill known as the Rohrabacher-Farr Amendment that DOJ cannot use any of its funding in any given fiscal year to interfere with medical marijuana laws in the states. In other words, the Federal Government is barred from preventing states from how they regulate the use or sale of marijuana.

This is a victory for proponents of medical marijuana laws, but there are two apparent limitations:

The cases will likely turn on whether there is strict compliance with the relevant conditions of state law; and
The Congressional appropriation restriction noted above expires 9/30/16 and, unless Congress passes a new bill to extend that prohibition, it will soon expire.

This is a unique situation inasmuch as the Federal Government has not updated its laws for40-50 years while approximately 41 states authorize at least one form of medical marijuana use. Some commentators argue the Federal Government is out of step with [what seems] a growing trend in a majority of states

We can expect to see new legislation by Congress regarding this subject very soon.

California Petty Theft Laws: Detention and Civil Demands

Posted on July 10, 2016 by Caroline Anderson - Senior Support Specialist

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

Posted on June 20, 2016 by Caroline Anderson - Senior Support Specialist

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:

Are Firearms The Real Problem or People Who Abuse them?

Posted on December 7, 2015 by Caroline Anderson - Senior Support Specialist

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.

Appeals Court Upholds California Death Penalty

Posted on November 14, 2015 by Caroline Anderson - Senior Support Specialist

On November 12, 2015, the United States 9th Circuit Court of Appeals upheld
the constitutionality of the California Death Penalty and in so doing reversed the ruling by the US District Court that decided under the 8th Amendment it was unconstitutional as cruel and unusual punishment because of lengthy and unpredictable delays. The California Attorney General argued the delays were a result of the number and length of time involved in the legal maneuvers and appeal process that affords inmates their constitutional right to file appeals and writs of habeas corpus.

The history of the case is that in 2003, the California Supreme Court upheld the underlying conviction of the defendant/inmate on first-degree murder and rape charges.

In California since 1978, there have been approximately 900 defendants sentenced to death, with only 13 actual executions, and none in about ten years. Executions at San Quentin State Prison have been on hold since 2006 when a Federal Judge deemed there to be legal issues with the then current and past combined multi-drug lethal procedures. Since there is now a national shortage of single lethal drugs that too poses additional problems. In California, there are now about 750 inmates on death row (about 100 died while imprisoned due to other causes).

Is a University Liable for Violence on the Campus?

Posted on August 5, 2015 by Caroline Anderson - Senior Support Specialist

The California Court of Appeals was scheduled to hear oral argument on Friday, August 7, 2015 in a case filed in 2010 by Katherine Rosen against her attacker and UCLA, which is governed by the Regents of the University of California; at the time she was a UCLA student who was stabbed and had her neck slashed during a class in an unprovoked attack by a fellow student. In the criminal case against the defendant, he was found not guilty by reason of insanity and placed in a psychiatric hospital, Patton State Hospital, for an indefinite period of time.

In the civil action the plaintiff argued the university failed to properly respond to warnings about the potentially violent behavior of the defendant. This was in contrast to the defense arguments that it was a random act of violence. Proponents of civil liability contend a university owes a duty to provide a safe environment to and protect its students from others on the campus, particularly those who get treatment from the college for mental health conditions. It is a sad reality that acts of cruelty that are plainly brutal and inhumane have become a national scourge.

Category Archives: Criminal Defense