San Bernardino DA is urging Congress to require illegal immigrants to give a DNA sample if they want to be in the US.
For those that are unaware, the DA in various counties keep DNA databases that are randomly run for links to criminal activity. While the DA is urging that this will only lead to a “few” criminal convictions, I still wonder the true intention…
thoughts?
http://www.dailybulletin.com/news/ci_17221173
Before C. BRADFORD LAW
It was not long ago that California decided that inmates could not be segregated solely by race. Prison officials were ordered to end their use of an “unwritten policy” which had been in effect for at least a quarter of a century, and advised prison officials to separate incoming inmates by their race.
It used to be that inmates of the same race were housed together for 60 days, a measure taken in part to reduce the risk of racial violence. Once processed, inmates were assigned to a cell in one of the state’s 33 prisons on a largely nonracial basis. They were segregated again by race whenever they were transferred.
The policy now is that an offender’s race will not be used as a sole determining factor in housing. However, this policy still needed to take into account the institution’s safety and security. This policy was to be utilized in full force and effect starting in 2007.
Recently, the court determined that there is no violation of the previous discussion when prison officials utilizes race as a sole factor for housing and segregating prison inmates affiliated with a gang. So long as the prison official’s segregation is based on a means of addressing prison’s compelling interest in preventing gang violence race is allowed as the segregation factor.
In re Morales – filed January 23, 2013, First District, Div. Three
Cite as A132816
Sometimes when reading the decisions of the California court, you wonder how they even made it that far. While it may seem that it is common sense to not fire a gun through a closed door because you do not know who or what is on the other side, apparently a decision had to be made.
Its official: Firing a gun through a closed door in the state of California with the intent to fire through the door is enough to constitute assault if someone on the other side is injured.
In People v. Navarro – filed January 22, 2013, Second District, Div. Four (B235448), the Court held that even if defendant subjectively failed to appreciate the risk of harm from firing a gun through a closed door, he had the criminal intent necessary for an assault conviction, because a reasonable person would know a bullet could penetrate the door. Statute making it a crime to attempt to prevent or dissuade a person from contacting authorities to report a crime is not overbroad, and trial court properly instructed the jury in accordance with uniform California authority that specific intent to prevent or dissuade is a necessary element of the offense.
Lesson: Don’t fire a gun through a closed door.
California has decided that ordering the parts to build an AK-47 off the internet, and intending to put them together to build an AK-47 is enough to convict an individual for owning or attempting to own/be in possession of an assault weapon.
In the case of People v. Nguyen – filed January 18, 2013, Fourth District, Div. Three, the Defendant purchased a kit to make an AK-47 online. The court held that the Defendant was properly convicted of attempted unlawful assault weapon activity and attempted possession of an assault weapon. This conviction was upheld even though he did not finish putting together the parts. The reasoning: the Court found that since upon completion he would have assembled them into an “assault weapon” as defined by California statute, he was in violation.
So in conclusion, not only can you not own an assault weapon, don’t even own the pieces.
It seems like California is reaching more and more to restrict gun ownership. http://www.metnews.com/sos.cgi?0113//G046081
Inmate populations at California state prisons have reached their all time low in 17 years. This statistic alone would lead one to believe crime is down but that’s far from the truth.
Inmate population on the prisons is down largely in part to the implementation of Assembly Bill 109. Before AB 109 the states inmate population capped out at 106,295 which was more than double what the system was designed to hold. Currently, the total inmate population is totaled at 132,618 which is approximately 155% of what it is designed to hold. In 1995, the prison population was 127,462.
So what was AB 109? It was the realignment that was designed to release non-violent offenders early and keep the state prison for inmates that have committed the serious crimes and are serving the longest sentences. So it seems that it is working, but what’s the effect?
County jails are increasingly becoming too overcrowded. While there hasn’t been any data to support an increase in crime since AB109 implementation, there has been an increase in alternative sentencing such as county jail instead of prison.
Los Angeles county jail has increased by the hundreds. Lancaster has seen an increase in violent crimes by 16%. Of the 39 murders committed in San Francisco by mid September of 2012, nearly a quarter were committed by an individual on post release supervised probation. Under AB109 state prisoners who were eligible for parole could be eligible for supervised formal probation.
LESS OVERCROWDING?!?!? For the state prisons sure AB109 did exactly what it was designed to do release the overcrowding in the state prisons. Inmates were crammed into bunks in the gyms which in many individuals opinions violate the Eighth Amendment.
The bunks would be double and triple bunks lined up row by row from one end of the gym to the other. California Institute for Men had approximately 200-250 people entering the prison on a weekly basis. This common area living posed so many dangers that hopefully AB109 relieved.
But now the same problem AB109 fixed is now in the county jails. All this accomplished was a shift in where the problem exists. Local jails are overcrowded and violent crime is on the rise. There has been a significant increase in assault on prison staff by inmates as a direct result of the overcrowding. Glen Helen Facility has also had two successful escapes in 2012.
So it looks like even county jails are looking to alternatives such as early release and work release programs and weekend jail. Currently in LA county twin towers a non violent offender might serve a few days on a 90day sentence. The other problem is that county jails are now housing inmates who have sentences that are far beyond the normal year county jail is designed for.
In Hesperian of the 88 burglaries committed since AB109 was implemented 30 can be linked to a single post release community supervision probation.
Where do we go from here?? AB109 was the best of the worst. The best news is local jails are looking to alternative and evidenced based rehabilitation programs instead of just building more jails. Finally California is beginning to realize we cannot just incarcerate our way out of the problem.
We have to rehabilitate the jail system before we can rehabilitate the individuals who need it. Simply housing individuals was never a smart idea and finally we are beginning to realize that.
In 2005, the U.S. Supreme Court strongly criticized the California’s use of segregation of gang members in prison. It used to be that you were housed in solitary if you refused to assert your gang affiliation, or worse, the prison officials would assume that you were with a specific gang improperly and house you there anyways.
The very first “gang” to ever appear in the sate system was the Mexican Mafia (La EME) which was created in the Deuel Vocational Institution in Tracy in the late 1950s. Currently, in the state prisons the “gang members” primarily consist of Latinos from Southern California, which the Mexican Mafia has times to allegedly. Another known prison affiliation is the Nuestra Familia, another Latino gang, developed in Soledad Prison in the 1960s. This organization was organized largely in part to protect younger Northern California inmates from members of the Mexican Mafia. It is alleged that like La EME, Nuestra Familia has built close alliances with street gangs in its members’ home communities.
Another gang that has been a major contributor to racial frictions in prisons is the Black Guerrilla Family, which was founded in San Quentin Prison in 1966, gang experts say. The Black Guerrilla Family declined in numbers during the 1990s, but prison officials say that in about 2003 ago the group began a drive to rebuild its membership, recruiting heavily from black street gangs such as the 415 Kumi Nation, the Crips and the Bloods.
Additionally, there are two white gangs that operate within the prison system — the Aryan Brotherhood, which prison officials say was founded in San Quentin in 1967, and the Nazi Low Riders, an Aryan Brotherhood spin-off that first emerged in the juvenile prisons of the California Youth Authority in the 1970s — have contributed their own volatility to the ethnic mix inside state prisons.
All of these gangs have contributed to the racial segregation and gang formation that exists today in the prisons. Most recently, the court made the decision regarding a formed “Prison Gang.” The case involved two alleged members of the Northern Structure prison gang.
The Northern Structure gang, also known as the Nortenos 14, was founded in 1984, by incarcerated northern California offenders. The gang consists of united gang members from violent northern California street gangs such as Varrio Santa Rosa Norte, Pachuco Loco, Varrio South Park, West Side Windsor, Brown Pride Norteño and several others. Northern Structure is governed by the Nuestra Familia.
In two petitions for habeas corpus challenging separate gang validation decisions by the California Department of Corrections and Rehabilitation (CDCR) in which prison staff determined that petitioners were active associates of the Northern Structure (NS) prison gang: 1) petition for Fernandez is denied, where three adequate sources, including a roster of prison inmates, support the validation of Fernandez as a gang associate; 2) petition for Saldana is granted because the debriefing report does not satisfy the evidentiary requirement specified in the regulations that requires that a debriefing report refer to specific gang-related conduct, and there is no other evidence indicating how Saldana was actually involved with the NS; and 3) the validation process employed by CDCR complies with due process requirements and there was no prejudicial error with respect to the limited disclosure of confidential source material.
The end story: all the CDCR needed was a rooster which was supported by other sources, such as testimony by prison inmates and that is enough to support the confirmation that you are a gang member.
This case goes hand in hand with our last post, as the information that is required for the prosecution to press charges on individuals as gang members was drastically lowering, the recent decision that one gang member cannot be acting in futherance of a gang, might have some pull on how prison gang cases are also handled.
The Supreme Court has finally issued a decision in the long awaited case of People v. Rodriguez, (citation still pending). So, what’s the big issue? This case is a landmark decision for those criminal defense attorneys who represent individuals who are allegedly a member of a gang and the DA has slapped on a gang enhancement charge.
THE BOTTOM LINE
THE QUESTION: Can a gang member, when committing a felony but acting alone, be convicted of the substantive gang charge, PC 186.22(a) – Active Participation in a Criminal Street gang?????
THE ANSWER: Absolutely Not. The Supreme Court has finally made it clear the answer is that if a gang member is acting alone, they cannot be charged as a gang member.
Wheew that makes a few people breath slightly easier, as many of us in the criminal defense world know that this “enhancement” is over used by zealous DAs attempting to taint the jury with the words “gang member.”
If you are charged with a gang related offense, please feel free to contact the C. BRADFORD LAW FIRM.
Want to Know More??
Case Name: People v. Rodriguez , CalSup , Case #: S187680
Opinion Date: 12/27/2012 , DAR #: 17316
Case Holding:
“A gang member who commits a felony while acting alone does not violate Penal Code section 186.22, subdivision (a); that statute requires at least two perpetrators whose felonious conduct benefits the gang. Defendant, a Norteno gang member, attempted a robbery. Among other offenses, he was convicted of violating section 186.22, subdivision (a). The Court of Appeal reversed and the prosecution’s petition for review was granted. Held: Affirmed (plurality opinion). Section 186.22, subdivision (a) “speaks of criminal conduct by members of that gang.” Thus, a defendant must willfully advance or contribute to the commission of felonious conduct by members of his gang. The plain meaning of the statute requires that the crime be committed by at least two gang members, one of whom may be the defendant if he is a gang member. This interpretation avoids “any potential due process concerns that might be raised by punishing mere gang membership” by requiring that a defendant commit the underlying felony with at least one other gang member. (Citing Scales v. United States (1961) 367 U.S. 203.) Section 186.22, subdivision (a) reflects the Legislature’s intent to punish participants who commit felonious conduct together with gang members. In his concurring opinion, Justice Baxter joined in the opinion based on the plain meaning of the statute, finding no reason to consider the constitutional implications of a contrary interpretation.”
[Editor’s Note: In Marks v. United States (1977) 430 U.S. 188, 193, the Supreme Court discussed the way in which to interpret the holding of a U.S.S.C. case where there is no majority supporting the rationale of any opinion: “When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.”]
A San Diego resident had his Iphone stolen and utilized the “Find My Iphone” App to locate the whereabouts of his phone. When he found it, he confronted the man who had it, and the confrontation escalated into a physical altercation.
Do you have the right to obtain your property back at any costs, including physically assaulting someone? Should you have that right even if it is a phone??
While you do a have a right to defend your property, I am not quite sure that this man will be able to assert that defense in this situation. The California Jury Instructions provide that Defense of Property is a proper justification for a crime if:
“The owner [or possessor] of (real/ [or] personal) property may use reasonable force to protect that property from imminent harm.
Reasonable force means the amount of force that a reasonable person in the same situation would believe is necessary to protect the property from imminent harm.
When deciding whether the defendant used reasonable force, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant’s beliefs were reasonable, the danger does not need to have actually existed. (California Crim 3476. Right to Defend Real or Personal Property)
Now I am not a DA, but what was the “imminent harm to the property” in this situation? I guess there would be an argument that the guy was possibly going to through the iPhone into the ocean where it could be destroyed, but again was this force reasonable??
I am not sure where to conclude.
Here’s a link to the article
The Struggle Files: Suspected iPhone Thief Tracked Down & Blessed With Vicious Fade [VIDEO]
And here is a link to the video….
Let us know what your thoughts are!
Charges filed in Indian Rape and Murder Case
Protests throughout India have sparked dialog for tougher laws against rape and a more continuous, complete campaign about women’s rights and treatment. However, the fact that the Indian Bar Association stated none of it’s attorney’s will represent the men accused of these crimes because of the nature of the crimes is quite interesting, with the citizens of India out for justice even these men deserve a defense. The court will likely appoint representation.
C. BRADFORD LAW FIRM 