Category Archives: Federal Crimes

IS REPORTING MANDATORY?

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Our communications are not intended to deal exclusively with mandatory reporting requirements, whether applicable or not. The Administrative Procedure Act (APA) is found in the California Government Code, section 11340 et seq. This statute establishes “rulemaking” procedures and standards for California state agencies. Additionally, California regulations must be in compliance with regulations adopted by OAL (see California Code of Regulations, title 1, sections 1-280).  The California Code of Regulations is the official publication of regulations adopted, amended or repealed by California state agencies. Reporting requirements vary from state to state and may be different from one California Regulatory Agency to another. The mandated reporting can be found in the particular license “Practice Act” as well as the rules and regulations that apply to  the profession or occupation.

Example for a Pharmacist: ANY controlled substance loss, small or large, must be reported to the California Board of Pharmacy (BOP) within fourteen (14) calendar days from the date of loss when it was a result of the theft by a licensed employee, or when it is from any other type of loss, within thirty (30) calendar days.

Example for an RN: is the reporting of convictions by Applicants for an RN license issued by the Board of Registered Nursing (BRN). All prior convictions substantially related to the duties, functions and/or qualifications of a registered nurse are reviewed by the BRN on a case by case basis. Since July 1, 2020, applicants are not asked about their prior criminal conviction history, but they will be discovered upon the Board’s receipt of an individual’s fingerprint results.The Board will not generally take action on convictions older than seven years, however, there are several exceptions, such as a serious felony that includes approximately 42 different crimes. Upon renewal of a nurse’s license, the BRN requires nurses to disclose whether they have had ANY license disciplined by a government agency or other disciplinary body; or if they have been convicted of any crime in any state, U.S. territory, military court or other country since their  last renewal. Failing to disclose ANY conviction may be grounds for disciplinary action as the government will contend you falsified information required on your renewal form; this is mandatory even when a conviction is expunged. As stated earlier in this paragraph, any felony or misdemeanor conviction substantially related to the duties, functions and/or qualifications of a registered nurse can be the basis for disciplinary action.

Example for a Physician, who is licensed in California is required to notify the Medical Board (MBC) of certain specific occurrences. Reporting forms and links are set forth below. Pursuant to California Business & Professions Code:

  • § 801.01(b)(2), a licensee must report malpractice settlements over $30,000 and judgments or arbitration awards of any amount, if the licensee does not possess professional liability insurance. (See Report of Settlement, Judgment or Arbitration Award)
  • § 802.1, a licensee must report:
  • An indictment or information charging a felony against the licensee.
  • A conviction, including any verdict of guilty, or plea of guilty or no contest, of any felony or misdemeanor. (See Physician Reporting – Criminal Actions)
  • §2240, a licensee who performs a medical procedure outside of a general acute care hospital, that results in the death of any patient on whom that medical treatment was performed by the licensee, or by a person acting under the licensee’s orders or supervision, shall report, in writing, on a form prescribed by the board, that occurrence to the board within 15 days after the occurrence. (See Outpatient Surgery – Patient Death Reporting Form)
  • § 2021, each licensee shall report to the board each and every change of address within 30 days after each change. (See Notification of Name Change and Address of Record )

We begin with a laser focused analysis of all of the facts and circumstances, and a pivotal strategy to develop a lengthy and comprehensive written presentation, 60 to 75 pages, so that our client is not defined by the actual and perceived conclusions regarding an underlying case. In addition, we pursue and underscore exculpatory evidence and other proof by initiating steps that minimize the risk our client is charged with unprofessional conduct &/or other grounds for disciplinary action. We do not gamble on the Regulatory Agency claiming the underlying situation is substantially related to the duties, functions and qualifications of a licensed professional or occupation. We also do not want to gamble the governmental agency may not perceive there is a basis  to conclude a possible threat to the health and safety of the public; nor do we want to risk by assuming that unequivocally the underlying matter does not evince unfitness, lack of good judgment, etc.

Please note the CALIFORNIA CODE OF REGULATIONS, 16 CCR § 1444 states: [§ 1444. Substantial Relationship Criteria]. “A conviction or act shall be considered to be substantially related to the qualifications, functions or duties of a registered nurse if to a substantial degree it evidences the present or potential unfitness of a registered nurse to practice in a manner consistent with the public health, safety, or welfare Such convictions or acts shall include but not be limited to the following: [Emphasis Added; we prefer to error on the side of caution and, therefore, have provided the information herein]:  (a) Assaultive or abusive conduct including, but not limited to, those violations listed in subdivision (d) of Penal Code Section 11160. (b) Failure to comply with any mandatory reporting requirements. (c) Theft, dishonesty, fraud, or deceit. (d) Any conviction or act subject to an order of registration pursuant to Section 290 of the Penal Code (Emphasis Added).

We understand a previous case may be unsettling; however, our role is to level the playing field and we do so by underscoring in a long written argument both a defense and offense. If you have a situation you would like us to be of  assistance, do not hesitate to send an email [or call us at 1.619.583.0350] during our regular hours of 8:30 am to 8:30 pm seven (7) days a week.

 

SECRETLY RECORDED CONVERSATIONS ADMISSIBLE IN CRIMINAL CASES

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On December 5, 2019, in a unanimous ruling, the California Supreme Court in the case of People vs. Guzman, declared prosecutors can use secretly recorded conversations and they are, therefore, admissible in criminal cases. This decision does not change the illegal status of secretly recorded conversations that are inadmissible in civil cases. Pursuant to Penal Code section 632, it is illegal to secretly record a private conversation without the express consent of the other person.

The California Supreme Court followed a line of cases that extended the principles set forth in the ballot measure entitled Proposition 8, passed by California voters in 1992, referred to as Marsy’s Law or the Victims’ Bill of Rights Act, which among other things, sought to allow all relevant evidence in a case to be admitted into evidence in a criminal preliminary hearing and criminal trial. In reaching its conclusion, the Court rejected the argument by the defense that such a ruling would violate the defendant’s right to privacy.

Exceptional Attorney and Essential

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There may have been a point when one distinguished between exceptional and essential. Many individuals may have been content in utilizing a physician, dentist, accountant, and/or an attorney, perhaps as long as they were not inferior. However, is it any different in reading or watching the news, utilizing a barber or beautician, going out to dinner, or watching a movie? When the emphasis is on the desired result, it becomes essential to want a higher standard, receive value and choose exceptional as the significant keyword. In this regard, therefore, the number one criterion in selecting the people we retain (and the things we do), becomes very important; doing anything else, such as what may only be “o.k.” becomes tantamount to accepting mediocre and, at times and at best, this is superficial, inadequate, deficient and, even worse, useless and a waste of time.

Most of us want more, with the emphasis on an effective outcome. Yet, some will inevitably place a greater importance on the cost rather than the potential adverse outcome. In other words, they do not automatically ask “what do I have to lose, such as the priceless time I have, my professional career, credibility and/or personal integrity?” Therefore, with all of this in mind, many do not want “just o.k.” and, instead, focus on exceptional as the measurement for the individual with whom they choose to employ and, often, on the things they do with the time they have.

In selecting a lawyer, the same criteria can be critical. The website Avvo provides a profile on all of the attorneys in the United States. Then, one has the opportunity to decide whether (s)he wants an attorney who is exceptional, as well as knowledgeable, skilled and highly experienced, particularly with a proven and written record of ongoing favorable results. For example, it might not at the outset seem as important in choosing a contractor, until one first looks at testimonials to determine whether there are others who have spent their savings or mortgaged their home, only to then experience their contractor departed from the plans and specifications, delayed at great length on the work and/or did not actually complete the project.

In the practice of law, it can be critical the attorney does more rather than less. It is essential in order to diminish the risk or not gamble on the outcome. Hence, in choosing a lawyer, it is recommended you evaluate the advantages of a comprehensive scope in the work to be performed involving, among other things, indispensable steps, such as a risk assessment; an exhaustive factual and legal analysis; focused research; essential strategizing; and utilizing credible experts to evaluate and provide an opinion integrated into an optimum forensic report concerning such issues, including those directly or indirectly, related to the standard of care, prudence, judgment, lawfulness, moral turpitude, competency, etc.

In summary, what some may have previously thought were unnecessary because they did not think they  required selecting an attorney who is exceptional, now are considering the above issues as very important criteria and, therefore, essential characteristics in choosing the best lawyer (and the things they do).

LINGUISTICS AND THE PRACTICE OF LAW

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Linguistics is the study of language. It is reflected in everything we say and what we do. Essentially, it impacts how we communicate with others. In this regard, every word can have significance; many of which are like a double-edged sword, in which there can be two completely different meanings.

To be effective in the practice of law, one must truly understand the impact EACH word has, which includes knowing how and when to be concise instead of wordy; and, to know whether we are in fact, as well as how to be, convincing instead of unpersuasive.

There is a distinction between “effective” counsel and “competent” legal representation in that the latter is legal advice and counsel without errors, such as whether the advice and representation would result in the denial of a fair trial. This is often classified as malpractice or negligence. On the other hand, one may not have departed from the elementary standards applicable to the practice of law and, therefore, not be negligent. However, one can still be “ineffective” by failing to obtain a winning result. In the practice of law and to be effective, a lawyer should strive for superior advocacy; this should apply to how one drafts legal documents; presents oral and written arguments; drafts and finalizes written communications; as well as the basic dialogues we have with those with whom we know and/or those with whom we want to influence by producing a positive response, feeling, or opinion.

It is the “art of communications” to know what to say, how to say it, when to say it, and, where is it acceptable or beneficial to do so. Additionally, one needs to know when to say no more, if only to allow the other individual an opportunity to digest what has been said and to reply, if desired.

Here are some considerations to help illustrate the above:

  • Is the same writing style and techniques in sending or responding to texts satisfactory in writing a letter, greeting card, etc.?
  • Do you communicate the same when conferring with a loved one, family member and/or friend? Are there differences when applying for a job; writing an essay or term paper for school or college; or submitting written arguments to the adversary in a case; to an organization; an arbitrator; judge; and to an administrative agency?
  • The tone of our communications can have a different impact, perhaps one that is not intended at all. The way words are expressed can lead to different meanings. For example, stating “I love you” in an angry or sarcastic voice vs. gently and softly saying the words “I love you.” Can you “hear” the difference? Try saying the same words in a different tone and you will see the reaction [the former angry tone likely will cause  a baby to cry, out of fear].
  • What about language in politics, in newspapers and television broadcasts? Are they fair and balanced?
  • In addition, should one consider the source of the communication; the activity and context in which the communication is made; as well as the credibility of the speaker or writer?
  • When is it appropriate to make a complimentary remark in contrast to ignoring what others may say or do that truly is, or seems improper?

Whether through linguistics and/or superior advocacy, the goal of a lawyer is to evoke an acceptance of an argument or obtain support for his/her argument. It is fair to say, effective legal counsel utilizes a combination of compelling and cogent language with logic and reasoning. Essentially, this involves both the “art of communication (linguistics)” and the “art of negotiation.”

 

Canadian Government Legalizes Marijuana

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On October 17, 2018, the Federal Government of Canada legalized cannabis. At best, this is a national experiment and controversial legislation. Clearly, the tax profits available to the Canadian government are enormous,  and the vast numbers of businesses devoted to the production, distribution and sales of marijuana seem boundless.  And, the question of health to adults and youth using cannabis continues to be in dispute.

The proliferation of businesses engaged in the promotion and marketing are restricted from using techniques and procedures to attract younger demographics, however, opponents contend this is a slippery slope in which  informational materials and brand marketing are sending a message to Canadians that marijuana is acceptable, perhaps confusing those who might otherwise have decided to not smoke cigarettes. And, there still remains doubt as to whether and to what extent one’s ability to safely operate equipment, machinery, and automobiles may be impaired.

While there are unanswered questions regarding the short and long term consequences of using marijuana,  many in the health profession continue to develop campaigns to alert the public as to the health and other risks associated with cannabis. Undoubtedly, this is a topic under consideration now and in the future by the representatives in the United States Government, and other countries.

California Recent Change to Marijuana Law

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Under the ballot measure designated as Proposition 64 that was passed by 57% of the voters in the November 8, 2016 election that became effective November 9th:

1) those convicted of a felony as a result of possession, transportation &/or cultivation of marijuana can have it reduced to a misdemeanor;

2) the County Public Defender in San Diego has offered to file the Petition for free even if the crime occurred years ago, and even if the defendant was previously represented by private counsel;

3) if the San Diego District Attorney decides there is a basis to have the felony reduced to a misdemeanor, the defendant may not even have to appear in Court;

4) the current process in San Diego allows the Superior Court to re-sentence a defendant from a felony to a misdemeanor, or dismiss the charges [it would seem beneficial to have private counsel if one hopes to obtain a full dismissal of a prior felony conviction];

5) the law also now permits anyone over age 21 to possess up to 28.5 grams of marijuana, or grow at any one time up to six marijuana plants at their residence.

6) the maximum penalty is now up to six months in the County Jail and/or a fine of up to $1,000 for those who grow, transport or sell marijuana, which are now misdemeanors.

7) there are certain exceptions causing the case to be charged as a felony, such as:

  • the defendant has prior convictions for the sale of drugs;
  • the defendant is charged with transporting marijuana into the United States &/or across state borders. For example, one cannot obtain marijuana in a state in which recreational use is legal and bring it into California;
  • the defendant has a prior conviction of certain felonies that are deemed “strikes;”
  • the defendant is a Registered Sex Offender [RSO].

8) in addition, there are miscellaneous restrictions in connection with marijuana, such as:

  • there are Federal laws that apply to the use, possession, sale, transportation and/or cultivation of marijuana;
  • driving while impaired by the use [under the influence] of marijuana is a crime in California;
  • smoking marijuana (a joint) (pot) in public is still illegal;
  • a store, shop, or retail establishment that sells recreational marijuana must check ID’s to be certain they are not selling marijuana to a minor; and such a business cannot be within 600 feet of a school, daycare or youth center;
  • unless the law is amended, a medical marijuana dispensary and/or an entity that cultivates marijuana cannot legally sell to an adult recreational user [includes social, personal or nutritional uses] until January, 2018;
  • advertising that is aimed to minors is prohibited;
  • a city or municipality has the power to issue an ordinance to ban the sale of marijuana; and if they permit such a commercial entity to do business, they have the power to regulate those entities under zoning laws.
  • an employer can lawfully require all prospective employees to pass a drug test as a condition of employment for certain positions as long as no individual or group is unlawfully selected, such as discrimination on the basis of race, nationality, religion, sexual preference, etc.
  • an employer can lawfully refuse to hire an employee who has tested positive for marijuana, even though it was legally prescribed for a medicinal purpose

9) nonetheless, there are still advantages to have a felony reduced to a misdemeanor, including but not limited to allowing an individual to maintain &/or obtain current and future: employment, security clearance, insurance, rent or lease property, and, in specified instances to possess a firearm, etc.

On the other hand, it is still likely if one has a professional or occupational license in California, or seeks to obtain such a license,  the state licensing Board, Bureau, or Department will require one to report a crime, whether a felony or misdemeanor; and, they will investigate and likely file an Accusation even if a misdemeanor is expunged. At Spital and Associates, we aggressively seek to present a comprehensive and cogent treatise with a compelling defense and offense and utilize forensic experts (adding the technical science) to marginalize any such investigation or Accusation.

Any discussion of marijuana of necessity has to include what opponents consider to be the dangers of such use. The short term effects include but are not limited to causing changes in a person’s mood, but  it can also impair body movement; as well as difficulty in attention and/or memory (learning) and/or problem solving (thinking). It has also been reported that marijuana raises one’s heart rate, which can increase the risk of a heart attack, particularly with older individuals and/or those with congenital or later developed or contracted heart problems.

The long term effects can adversely impact the previously mentioned mental abilities, and possibly cause permanent loss of certain brain functions. In some individuals,  the long term use of marijuana can cause temporary symptoms such as paranoia and hallucinations, as well as anxiety and depression that has been linked to mental illness. Not only can there be a loss of physical and/or mental health, but it has also been described as a “gateway drug” because it can lead to the use of other drugs and narcotics (some of which are highly addictive and deadly).  In addition, the smoke can harm a person’s lungs and, therefore, cause lung cancer. The risk to the development of a child during and after pregnancy is still unknown. When one seeks to stop using marijuana, there may be withdrawal symptoms.

You are encouraged to consult with a physician in terms of  medical and psychological issues; and, it is recommended that you obtain the advice of an experienced lawyer in regards to each and all of the above items to determine whether and to what extent any apply to you, a loved one, and/or a friend or associate. If you desire a Free Attorney Consultation, call 619.583.0350 and ask for Sam Spital, Managing Lawyer or send an email

Federal Appeals Court Bars DOJ From Prosecuting Medical Marijuana Cases

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On August 16, 2016, a three- judge panel of the 9th 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.

 

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.

Appeals Court Upholds California Death Penalty

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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).

Should law Enforcement Be Permitted to Stop and Search on the Basis of an Anonymous Tip of Reckless Driving?

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In the U.S. Supreme Court case of PRADO NAVARETTE et al. v. CALIFORNIA, 12-9490 (April 22, 2014), the Court held the Fourth Amendment to the U.S. Constitution was not violated and, therefore, the traffic stop by a CHP law enforcement in which the officer searched the bed of a pickup truck and found about thirty pounds of marijuana was lawful since he had a reasonable suspicion of criminality, smelling marijuana and having a belief the driver was intoxicated.as a result of an anonymous tip given by a 911 caller.

The Dissenting opinion in this case captured the essence of the issue by writing a compelling summary stating all of us are at risk of losing our freedom of movement by an anonymous telephone tip such as this one regarding a reckless driver, whether true or false. Further, other opponents of these types of searches argue law enforcement should not be able to stop and search the public on an en masse basis. Criminal and constitutional lawyers maintain this Supreme Court opinion constitutes a further loss of our freedom to be secure from government intrusion.

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