Archive | January, 2013

How Many “Gang Members” Does it Take?

16 Jan

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.”]

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Iphone Assault or Defense of Property.

10 Jan

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

http://hiphopwired.com/2013/01/09/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!

Link

Charges filed in Indian Rape and Murder Case

3 Jan

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.