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Facing prison time is never a happy moment, and it is the major tenet of the American justice system that punishment for a crime, is intended to be a deterrent. However, in some cases, the individual committing the crime may not have the capacity to truly understand the consequences of his/her actions. Specifically, those with developmental disabilities, traumatic brain injuries, or post-traumatic stress disorder, or those who have mental health problems resulting from military service may not fully comprehend, or in some cases control, their actions.
Consequently, subjecting these individuals to prison may do more harm than good. In fact, such individuals may want to retain an attorney experienced in criminal defense law to ensure they get the most appropriate help.
California has a law that allows certain criminal suspects to be diverted to mental health treatment programs and have their charges dismissed, and, earlier, Governor Brown signed off on an expansion of the suspects that are eligible for this program, to include those with bipolar disorder or schizophrenia, and even those who commit serious or violent felonies.
However, recently, various prosecutors have been lobbying the Governor to retract some of this expansion, alleging that this expansion casts too wide a net, and will put dangerous felons back on the street. A discussion of this expansion, as well as the potential for retraction, will follow below.
What is California’s Mental Health Diversion Program?
The law described above allows a criminal defendant suffering from a specified mental disorder to be granted pre-trial diversion for a crime if a judge finds the disorder played a significant role in the crime. In a pre-trial diversion, the criminal trial is stopped for a period of up to two years and, if there is substantial compliance by the defendant with the diversion program and the defendant has not committed a significant crime, the charges will be dismissed, and the records of the arrest and prosecution sealed.
What has angered prosecutors is that the law was expanded to those who have been charged with any crime, and does not take into account any past convictions. Thus, as the prosecutors allege, this law is applicable to murderers, rapists, robbers, child molesters, arsonists, and the like, and does not take into account whether this is the second rape, for example, that the defendant has committed.
Additionally, there is some confusion as to what constitutes a “significant” crime during the two-year diversion program.Finally, prosecutors are wary of the fact that the law allows for eligibility in the diversion program for almost every type of mental health diagnosis. Thus, defendants diagnosed with mental illnesses such as schizophrenia (diagnosis of some serial killers), paraphilia (of which serial rapists are often diagnosed), and depression (associated with mass school shooting murders) would be eligible for diversion.
Retraction Potential
Based on these concerns, various California prosecutors have been lobbying Assembly members to pass a law curtailing the above-stated issues. Specifically, prosecutors wish to limit the new program to those charged only with misdemeanors or non-serious, non-violent felonies.
A bill had been moving through the Assembly with these limitations, without opposition, and with bipartisan support, but was stopped when the new bill was passed as part of a trailer to a budget bill. Additionally, various newspapers and other media have been advocating for this change, so it does appear that there may be a better than not chance that these restrictions will eventually be added.
Hire A Criminal Defense Attorney
If you, or someone you love, have been charged with a crime, contact the experienced criminal defense attorneys at the Los Angeles law firm Manshoory Law Group, APC as soon as possible. It is vitally important to have an experienced criminal defense attorney on your side, and doing so can truly be the difference between a prison sentence and getting the treatment you need.
We will use our knowledge of criminal law to devise a strategy and present the best case for your or your loved one’s defense. Attorneys are available 24/7 to take your call. Contact us today for an initial consultation.
In California, as in most states, to be charged with homicide means that the prosecutor has evidence that the defendant “unlawfully killed another human being or fetus with malice aforethought.”Accordingly, this means that the defendant must have been directly involved with the unlawful end of another person’s life; that is, he/she effectively “pulled the trigger.”
However, California, like the vast majority of states, also allows a defendant to be charged with homicide if the defendant, or a fellow perpetrator, kills another human being while committing certain felonies, regardless of whether the killing was intentional. This is known as the Felony-Murder Rule, and retaining the services of an experienced criminal defense attorney can be crucial to those who have been charged with the Rule’s violation.
In February, Berkeley Senator Nancy Skinner introduced a bill in the Legislature that would reform California’s, Felony-Murder Rule. A discussion on the current felony-murder rule, and the proposed reform, will follow below.
What is the Felony Murder Rule in California
Expanding on the previous description, California’s Felony-Murder Rule maintains that if a person, either alone or in concert with another, decides to commit an enumerated felony, and, while committing that felony, that person (or anyone acting in concert) kills another, that person, and anyone else involved, can be tried, and convicted, of murder. The intention of the Felony-Murder Rule is deterrence – to deter people from committing felonies and to deter people from putting other lives in life-threatening situations while committing certain felonies.
The qualifying felonies for application of the Felony-Murder Rule include:
Arson
Rape
Carjacking
Robbery
Burglary
Mayhem
Kidnapping
Train wrecking
Any murder that is committed during a felony or attempted felony is inherently dangerous to human life
As is evident, it does not matter whether an intent to kill is present, just that a homicide resulted when committing, or attempting to commit, one of these acts.
What is the Proposed Amendment to the Felony-Murder Rule?
The proposed amendment to the Felony-Murder Rule provides a distinction between active and passive persons involved in the underlying felony. That is, the proposed Rule attempts to distinguish between persons who participated in the underlying felony, but did not know a murder was apparent nor participate in the murder, and those who chose to commit murder or aided in the process.
Thus, the law limits liability to those who participated in an underlying felony which resulted in a homicide if the individual was the actual killer or, with an intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the murder.
The intention of this proposed amendment is to hold those who had active participation in murder to a more stringent standard than the person who just participated in the commission of a felony. As an example, a lookout person or a getaway car driver to a burglary in which a homicide took place would not be facing the same penalty – which could be life in prison or the death penalty – as the individual who in fact did kill another person. Rather, such individuals would be charged with aiding and abetting a crime and can face the punishment more appropriate for that crime.
Hire A Criminal Defense Attorney
If you, or someone you love, have been charged with a homicide, and especially if you or a loved one has been charged with a violation of the Felony-Murder Rule, contact the experienced criminal defense attorneys at the Los Angeles law firm Manshoory Law Group, APC as soon as possible.
Our knowledge of criminal law, including homicide, is deep, and we will use this knowledge to devise a strategy and present the best case for your or your loved one’s defense. Attorneys are available 24/7 to take your call. Contact us today for an initial consultation.
When a person is convicted of a crime, a judge may order probation in lieu of prison in certain cases. This is not standard, as not all crimes provide a judge with this latitude, but for those that do allow this option, having a criminal defense attorney persuade the judge, on behalf of the criminal defendant, that this option is better than a prison term is crucial.
Further, if the criminal defendant is a juvenile, probation is almost always preferable, as it keeps the juvenile from having a criminal record and affords him/her a chance to redeem himself/herself going forward, in spite of any childhood transgressions.However, recently, Riverside County instituted a program under which juveniles are put on criminal probation as a result of having poor academic grades.
While this may seem like an extreme use of probation, and, in fact, from the article, the ACLU has instituted a lawsuit against the program, it does illustrate the use of criminal probation to punish juveniles, a discussion of probation and its specific application to minors will follow below.
What are the Rules of Probation in California?
Criminal probation, refers to the supervision of a convicted defendant for a specific period of time, in place of serving time in prison. Typically, the convicted will be ordered to meet various conditions by the court, and failure to do so may result in the imposition of the prison term.
By way of examples, convicts are typically required to surrender any firearms in their possession, remain employed (or participate in an educational program), abide by a curfew, live at a specified residence, obey the orders of a probation officer, and/or not leave the jurisdiction. In some cases, convicts may be required to retain a tracking device, such as an ankle bracelet, to track their movement.
California has two types of probation – summary and formal. Summary, also known as court probation, typically is imposed when one is convicted of a misdemeanor crime, or a wobbler crime, and where the convict is deemed not to be a danger to the community.
Formal, or felony, probation occurs when the convict has deemed a danger to the community. Formal probation, which is more restrictive, requires regular meetings with a probation officer to ensure that the convict is meeting all the conditions of the probation, while also ensuring that he/she has not left the jurisdiction.
What are the Types of Juvenile Probation?
When the convict is a juvenile, the types of probation available become more nuanced, as, in some cases, the probation allows the juvenile to be removed from his/her place of residence. Differing from adult probation, in juvenile matters, there is also non-wardship and wardship probation. The primary difference between these two types of probation is that, in wardship probation, the probation-ordering court will have jurisdiction over the juvenile as if it was the juvenile’s parent.
This jurisdiction includes the ability to remove the juvenile from his/her place of residence. In the majority of cases, juvenile probation is for a six-month period, after which a determination is made regarding whether the juvenile successfully met all conditions of the probation, or whether charges will be filed, and/or a prison sentence will be imposed.
When the probation is non-wardship, voluntary diversion programs between the probation officer, the juvenile, and his/her parents, are an option. Successful completion of the program means that the matter is closed, and no further action is taken.
Failure to complete the program means that a formal petition is filed with the Juvenile Court, which can lead to another round of informal, non-warship probation, in which the court will put the sentence on hold to allow successful completion.
Hire A Criminal Defense Attorney
If you are aware of a juvenile who has been charged with a crime, and are curious about the possibility of probation, contact the experienced criminal defense attorneys at the Los Angeles law firm Manshoory Law Group, APC as soon as possible.
Our knowledge of criminal law is extensive and we will use this knowledge to formulate the best strategy to defend against criminal accusations. Attorneys are available 24/7 to take your call. Contact us today for an initial consultation.
As the U.S. Supreme Court winds down its term, every June and October, a flurry of opinions is typically released. This June was no exception. One case, in particular, touched on an issue that has been addressed by the Court in previous matters – an individual’s expectation of privacy, particularly from searches by the government.
Such an expectation varies according to the circumstance – trash left on the curb for pickup, for example, is accorded no expectation of privacy, and can be accessed by law enforcement without a warrant – and an attorney experienced incriminal defense lawyer can help combat warrantless searches if the circumstance demands it. In this instance, the Court held that, even though one is not listed as the authorized driver on a rental vehicle agreement, he/she still has an expectation of privacy just as if he/she was the authorized driver.
A discussion of this recent Supreme Court case, as well as how it may be applied going forward, will follow below.
The Fourth Amendment’s Expectation of Privacy
The Fourth Amendment to the U.S. Constitution generally prohibits warrantless searches and seizures. However, case law has diluted this prohibition to, as stated above, various circumstances. Prior to this holding, most federal courts have held that a driver whose name is not listed on the rental contract does not have any right to challenge a search of that vehicle.
Unanimously, however, the Court rejected that viewpoint and maintained that one who has lawful possession and control of a vehicle will generally have an expectation of privacy. The Court specifically made the analogy that if a friend allowed another friend to drive his/her vehicle (or, pointed to a previous case, if a person is permitted to stay at a friend’s apartment), the driver (or the apartment dweller) would have an expectation of privacy.
Further, in this case, the Court noted that the fact that one is not on the rental contract is not, per se, illegal (the contract did not specify that such an act would void the agreement). Consequently, lawful possession of a rental vehicle would be if the rental company, or, in this case, the rentee, allowed the individual to operate the vehicle.
Even if the rental contract did indicate that the agreement would be void, the Court seemed to imply that this fact was irrelevant, as the agreement is actually about risk allocation of the rental vehicle, and not necessarily an effort to block someone from allowing another person to drive it.
Effect of the Holding
At first glance, it would seem that the effect of this holding is clear when it is applied to situations just like the one at issue. However, it is important to note that the Court remanded the case back to the trial court to determine if any exceptions to the Fourth Amendment’s prohibition on warrantless searches and/or seizures would apply (ex. consent, plain view, stop and frisk, or vehicle with probable cause).
Consequently, the Petitioner is not out of the woods just yet. Nevertheless, the holding does give some guidance – if no exception applies, then the fact that one is not listed on the rental agreement as an authorized driver does not destroy his/her expectation of privacy.
Hire A Criminal Defense Attorney
While the Supreme Court case discussed in this post is somewhat narrow, if you have been charged with a crime in which you believe law enforcement may have searched your person or your effects improperly, and potentially violated your rights, contact the experienced criminal defense attorneys at the Los Angeles law firm Manshoory Law Group, APC as soon as possible. If indeed, evidence was seized in violation of the Fourth Amendment, the attorneys at our office will use their skill to argue against its introduction at trial.
Attorneys are available 24/7 to take your call. Contact us today for an initial consultation.
As summer is officially here, more stories of individuals leaving children in hot vehicles start to appear. Even more unfortunate are the horrific stories of children who perish as a result of heatstroke due to rising ambient temperatures while trapped in the vehicle.
While it is extremely rare for the adult to intend the child harm, in many cases, the individual responsible for the child, in fact, intended to leave the child in the vehicle, and just may not have appreciated the danger of doing so.
Regardless of the circumstances leading to criminal charges for leaving a child in a vehicle, the individual responsible for doing so should engage the services of acriminal defense attorney to assist with the legal ramifications.
In this case, the mother’s attorney is asserting that the death, while obviously unfortunate, is an accident and that the child’s mother truly did not realize that she left her daughter in the vehicle, believing until she saw her daughter’s lifeless body, that she had taken her to daycare.
A discussion of California’s Unattended Child in Motor Vehicle Safety Act (USMVSA), as well as potential arguments against prosecution, will follow below.
What Age Can You Leave a Child in The Car?
In 2002, the California Legislature passed the USMVSA, which made it a fineable offense to leave a child, aged 6 or younger, in a vehicle without supervision of someone 12 years of age or older if:
doing so presents a significant risk to the child’s health and/or safety, or
the vehicle is running or the keys are left in the ignition.
Importantly, this Act does not prevent the individual responsible for the child from being charged with any other provision of the California Penal Code, such as manslaughter.
In any event, there are a number of precautions an individual responsible for a child can take to ensure that leaving a child in a vehicle unattended does not occur, even accidentally, including:
Practicing a “Look Before Lock” routine, to get into the habit of looking in the back seat before locking the vehicle;
Avoiding distractions;
Scheduling a call as a reminder to ensure the child arrives at his/her destination; and
Placing a reminder in the vehicle to check the back seat at one’s destination, such as placing a stuffed toy in the front seat, and getting into the habit of putting it in the child’s car seat every time the vehicle is emptied.
Are There Any Defenses to Leaving a Child Unattended in a Car?
While many believe there is no excuse for leaving a child unattended in a vehicle, there are countless stories of parents making honest mistakes that, unfortunately, have led to devastating consequences.
In some cases, children can remain so quiet or sleep so peacefully that it is easy to forget they are in the back seat. In other cases, an individual’s daily routine has changed, which can lead to honest forgetfulness about dropping off or picking up a child from daycare.
Unfortunately, the heat of the summer does not concern itself with the reasons why a child has been left unattended in a vehicle, and, as illustrated above, disastrous results can occur. While it will never erase the tragic loss of a child to vehicular heatstroke, an experienced criminal defense attorney may be able to help the individual responsible for the child if his/her actions were a truly honest mistake.
In addition, evidence the accused was not responsible for the child or caused the dangerous condition could also be used to combat this charge.
Should I Hire a Lawyer If I’m Criminally Charged for Leaving a Child in a Car?
If you have been charged with violating the Unattended Child in Motor Vehicle Safety Act, contact the experienced criminal defense attorneys at the Los Angeles law firm Manshoory Law Group, APC as soon as possible.
Although the results may, unfortunately, be tragic, extenuating circumstances may mitigate any punishment you can receive, and the attorneys at Manshoory will use their expertise to build a defense to obtain the best possible results.
Attorneys are available 24/7 to take your call. Contact us today for an initial consultation.
The ability to identify individuals is an important priority for law enforcement. As time goes by, the amount of cold cases only increases, and the potential to associate a suspect with a crime can go a long way toward solving these cases. To assist law enforcement in this endeavor, in 2004, California passed Proposition 69, the “DNA Fingerprint, Unsolved Crime, and Innocence Protection Act.”
Essentially, this Act required law enforcement to take a DNA sample of everyone who is arrested on suspicion of a felony. The DNA sample is then checked against a national database to see if the arrestee was involved in another criminal matter. Anytime criminal charges are a possibility the services of an attorney experienced in criminal defense should be secured because defending against a charge in which DNA has implicated a person is almost impossible to do alone.
Further, the California Supreme Court recently upheld Proposition 69 as not violating either California or U.S. Constitutions. A discussion of this decision, and what it will mean going forward, will follow below.
People v. Buza
As alluded to above, in 2004, Proposition 69 was passed and codified into law, which directed law enforcement to obtain a DNA sample of every person arrested under suspicion of committing a felony.This direction applies to everyone arrested for a felony, including those apprehended without a warrant or any finding by a judge that there was sufficient cause for the arrest. The State then stores these DNA samples and allows these samples to be searched continuously by other law enforcement agencies around the country.
The primary issue people have with this law is that it is overreaching, in that it affects anyone arrested for suspicion of a felony, including those who are never charged with a crime, approximately 33% of all such arrestees.As a result, law enforcement agencies have this immensely private information at their disposal for an infinite amount of time. This, opponents assert, is a tremendous invasion of privacy.
The law does provide for a means by which one can have his/her sample destroyed and any registration of information contained within the sample purged from storage. However, it is a very complicated process to have it destroyed and purged, if not impossible.
The Aftermath
Initially, it is important to note that the holding in Buza is specifically limited to the facts of that particular case, and the California Supreme Court did not speculate on the constitutionality of the law as applied under different circumstances. In fact, the court noted that an individual arrested in the future without, as in Buza, probable cause, could have a valid challenge to the adequacy of the law’s expungement procedures or other aspect of the law.
The law does allow a person to refuse to submit to a DNA test. However, doing so is a misdemeanor, punishable by up to $500 in fines and up to 1 year in prison, and creates a criminal record that brings its own set of issues.
Additionally, also as mentioned above, there is a destruction and purge process. An experienced criminal defense attorney can definitely assist in this procedure to ensure the technicalities of the rules do not block a legitimate request.
The best scenario is the California Legislature corrects the serious privacy issues with the law, which it started to do in 2015, after the California Supreme Court initially granted review of this case. But, whether those revisions will materialize in the wake of the Court’s decision remains to be seen.
Hire A Criminal Defense Attorney
If you have been arrested on suspicion of a felony, and have been required to provide a sample of your DNA to law enforcement, contact the experienced criminal defense attorneys at the Los Angeles law firm Manshoory Law Group, APC as soon as possible. The attorneys at Manshoory will use their expertise to hopefully force law enforcement to destroy the sample, and help you keep your private information private.
Attorneys are available 24/7 to take your call. Contact us today for an initial consultation.
A sad reality is that anyone can be a victim of domestic violence. To protect these victims, domestic violence laws have been established. While such laws, as any law proscribing conduct which society has deemed to be detrimental, have gone a long way in punishing aggressors, in some cases, the laws, as written, cast such a wide net that unintended persons are caught.
An experienced domestic violence attorneycan help these individuals. California’s Domestic Violence Prevention Act is one of these such laws, written in such vague terms that unwarranted restraining orders have been levied against persons who are not the intended targets – that is, persons whose actions do not rise to the level of aggression intended by the California Legislature when drafting the statute.
A discussion of the vagueness of the California Domestic Violence Prevention Act, and the consequences of being accused of its violation, will follow below.
What Is California’s Domestic Violence Prevention Act?
In 1993, the California Legislature enacted the Domestic Violence Prevention Act, which is intended to prevent the abuse of a person by an aggressor with whom the person has a special (sometimes called intimate) relationship. Specifically, the law prohibits the following actions:
Intentionally or recklessly causing or attempting to cause bodily injury;
Sexual assault;
Placing a person in reasonable apprehension of imminent serious bodily injury to that person or to another;
Engaging in the following types of behavior: molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, destroying the personal property of, contacting either directly or indirectly by mail or otherwise, and/or disturbing the peace of another party.
As mentioned above, there must be a special relationship between the aggressor and the victim. Specifically, the victim must be any of the following:
A current or former spouse;
A current or former cohabitant;
A person in or formerly in a dating or engagement relationship;
A co-parent (i.e., the two persons are parents of a child together);
A child of a party; or
Any other person related by blood, marriage, or adoption within two degrees.
What are the Consequences of Domestic Violence?
As written, the statute is very vague as to what specifically constitutes domestic violence. However, as noted by a Professor of Law in the story linked above, the statute should be vague so that a wide range of detrimental behavior can, in fact, qualify as domestic violence, but it is then up to a judge to make sure the language is being applied in a fair way to every particular situation.
However, this is not necessarily what occurs, and consequences of being found in violation of the statute – the imposition of a restraining order against the violator – can have a wide-ranging effect. In fact, the article notes that a phone call or calling someone a name can be considered domestic violence, assuming they qualify as an intimate partner or household member.
Restraining orders are public records, and any individual can conduct a search to find out who has a restraining order imposed against them, including potential employers. To this end, many employers will not hire such a person. Further, some professions require termination when such an order has been imposed. Additionally, security clearances can be revoked for these people. Such restraining orders also appear in law enforcement databases.
Another issue is that one may not own a firearm during the enforcement period of the restraining order, which typically would mean the loss of a job for someone who uses a weapon in their employment, not to mention a loss of rights for anyone who owns a weapon for self-defense or for hunting. Finally, a restraining order can have a material effect on custody and visitation, potentially preventing a parent from interacting with his/her child.
If you have been charged with violating California’s Domestic Violence Law, and do not believe your actions are consistent with the intent of the statute, contact an experienced criminal defense attorney as soon as possible. The attorneys at the Los Angeles law firm Manshoory Law Group, APC will use their skills to build a defense on your behalf to obtain the best possible results.
Attorneys are available 24/7 to take your call. Contact us today for an initial consultation.
When apprehending or subduing a suspect, law enforcement is allowed to use reasonable physical force. Typically, such use of force would include bracing a suspect against a wall or the ground as he/she handcuffs the suspect.
If a suspect resists, then law enforcement is authorized to counter the resistance with additional degrees of force, including lethal. In most cases, the use of force by a law enforcement officer is justified.
However, when the degree of force trips the reasonable line into excessive, and, in some cases, fatal, the services of an experienced criminal defense attorney may be needed. The California Legislature is currently considering legislation that would restrict the use of lethal force by law enforcement to those situations in which it is necessary to prevent imminent and serious bodily injury or death.
A discussion of the excessive use of force by law enforcement, as well as the proposed law, will follow below.
Current Use of Force Law
The use of force generally means the amount of effort required by law enforcement to compel compliance by an unwilling individual. Use of force doctrines are employed by law enforcement in an effort to balance the needs of security with ethical concerns for the rights and well-being of individuals.
In other words, law enforcement is permitted to use physical force to the extent necessary to secure observance of the law or to restore order only when the exercise of persuasion, advice, and warning is found to be insufficient.
Excessive force refers to situations where law enforcement, otherwise legally entitled to use force, exceed the minimum amount necessary to diffuse an incident or to protect themselves or others from harm.Constitutionally speaking, an individual’s right to be free from the excessive force is found in the reasonable search and seizure requirement of the Fourth Amendment and the prohibition on cruel and unusual punishment in the Eighth Amendment.
Existing California law authorizes law enforcement to arrest individuals pursuant to a warrant or based upon probable cause. Under this law, an arrest may be made by the actual restraint of the individual or by submission to the custody of the arresting law enforcement officer. Further, this law authorizes a law enforcement officer to use reasonable force to effect the arrest, to prevent escape, or to overcome resistance.
Additionally, current law does not require a law enforcement officer to retreat or desist from an attempt to make an arrest because of resistance or threatened resistance of the individual being arrested.
If an arrestee dies due to excessive force, the homicide would most likely be justifiable if committed when the individual has committed a felony and is either fleeing or resisting the arrest.
California’s New Regulation on Excessive Force
AB 392, if passed, would redefine the situations in which a homicide by law enforcement is justifiable. Specifically, homicide would be justifiable if in self-defense or the defense of another, or when necessary to prevent the escape of a felon whose immediate apprehension is necessary to prevent death or serious injury.
Further, the bill would deem a homicide unjustifiable if law enforcement acted in a criminally negligent manner, including if the criminally negligent actions created the necessity for the use of deadly force.
How Much Force Can Police Use During an Arrest?
The U.S. Supreme Court has held that the right of law enforcement to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat. However, the degree of force used by law enforcement must be proportional to the threat and only escalate in response to the threat.
Excessive force refers to situations where law enforcement uses force that exceeds the amount necessary to diffuse an incident or to protect themselves or others from harm. The Constitutional right to be free from the excessive force is found in both the reasonable search and seizure requirement of the Fourth Amendment and the prohibition against cruel and unusual punishment of the Eighth Amendment.
Again, turning to the Supreme Court, the Court has set the floor by noting that lethal force can only be used during an arrest if:
Such force is necessary to prevent the escape of the suspect; or
Law enforcement has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.
In California, the law notes that, when law enforcement has reasonable cause to believe a suspect has committed a crime, he/she “may use reasonable force to effect the arrest, to prevent escape or to overcome resistance.”
If the suspect flees or forcibly resists, law enforcement “may use all necessary means to effect the arrest.” Finally, it should be noted that, if a suspect is aware or should be aware that he/she is being arrested, they are required “to refrain from using force or any weapon to resist such arrest.”
Additionally, the U.S. Supreme Court has held that law enforcement, only with probable cause to believe a suspect poses a threat of serious harm to the officer or others, may use deadly force to prevent escape. However, law enforcement is instructed to warn a suspect before using deadly force.
Actions that Can Be Considered Excessive Force by Police
As mentioned above, the California Assembly is debating a bill that would raise the floor set by the U.S. Supreme Court, and permit law enforcement to use lethal force only when necessary to prevent imminent and serious bodily injury or death to law enforcement or a third party.
Accordingly, the lethal force would only be justified in the following situations, given the totality of the circumstances:
There are no reasonable alternatives available, including warnings or other non-lethal means; or
Where law enforcement has probable cause to believe that the person has committed or intends to commit, a felony involving serious bodily injury or death, and there is an imminent risk of serious bodily injury or death to the officer or to another person if the subject is not immediately apprehended.
Additionally, the bill would make a homicide committed by law enforcement justifiable only if, as stated above, the use of lethal force was necessary given the totality of the circumstances, but, importantly, would exclude those situations in which the gross negligence of law enforcement contributed to the necessity.
Can I Sue the Police for Excessive Force?
If you are the subject of the excessive use of force by law enforcement, engage the services of an experienced criminal defense attorney as soon as possible. The Los Angeles attorneys at the Manshoory Law Group, APC handle a wide variety of criminal offenses and know how to use evidence of the excessive force to convince judges and prosecutors to dismiss, drop or reduce criminal charges.
Attorneys are available 24/7 to take your call. Contact us today for an initial consultation.
Typically, criminal trials occur in two phases – a first phase to determine guilt, and, if the determination is positive, a second phase to determine the sentence. While most people assume, due to the prevalence of trials in television dramas where the verdict ends the show, that the trial ends at this point, in reality, the trial of the now-convicted defendant moves to asentencing phase. In the sentencing phase, new and additional evidence may be presented to the court that could result in a reduced sentence.
However, there is also the possibility that the prosecution will present evidence that may have the opposite effect – increasing, or enhancing, the sentence. California has many statutes relating to sentence enhancements; its Habitual Offender Laws (also known as Three Strikes Laws) is one of the more well-known. As a result, over 80 percent of those incarcerated in California prisons are serving an extended period of time, due to at least one enhanced sentence provision.
However, the California Legislature is considering a bill to reform two of the more commonly used enhancements. A discussion of how sentence enhancements work, as well as what the bill is intended to reform, will follow below.
Sentencing Enhancements
Generally, an enhanced sentence is a sentence that is increased from one classification of offense to another, with higher classification, as a result of a prior conviction or the nature of the circumstances involved. Enhanced sentence laws are present in both federal and state laws, and, as such, vary by jurisdiction.
Looking at California, its Habitual Offender Law requires a defendant convicted of a felony, and who was previously convicted of a serious felony, to be sentenced to twice the prison term required by the newer felony. And, further, if a defendant is convicted of a serious or violent felony, with two or more prior convictions, the law mandated a prison term of at least 25 years to life, though, amendments passed in recent years allow for a sentence reduction if the third conviction was for a non-violent offense.
The intent of this law is to deter a convicted offender from committing new crimes upon release. However, and the primary reason the Legislature is considering these reform bills, there seems to be little evidence that the deterrence factor of sentence enhancing laws actually works (on the other side, proponents of sentence enhancement assert that they are necessary to allow sentences to accurately reflect one’s criminal history).
Specifically, research, including that by the National Institute of Justice, maintains that long sentences do not serve to deter people from committing further crimes, and, in fact, contribute, instead, to overcrowded prisons and cost taxpayers money.
Senate Bills 1392-1393
If enacted, the two bills, currently in the Appropriations Committee, would eliminate a one-year sentence enhancement for defendants with prior jail or prison terms, as well as allow a judge to ignore a defendant’s prior felony conviction for purposes of imposing additional sentence terms for serious felonies. According to the California Department of Corrections and Rehabilitation, these two enhancements affect 16,177 and 19,677 sentences, respectively, through Dec. 1, 2017.
It is to be noted, regarding the last aspect stated above, it is not as if the prior felony conviction will have no effect. Rather, it will be up to the judge’s discretion whether to include it when he/she is considering sentence enhancements. In this case, having an experienced criminal defense attorney on the side of a defendant is critical to convincing the judge to disregard the defendant’s prior criminal history.
Hire a Criminal Defense Attorney
If you have been charged with a crime, and have a previous criminal history, seek representation by an experienced criminal defense attorney as soon as possible. The attorneys at Manshoory Law Group have a breadth of knowledge regarding criminal law in California and will know what arguments and evidence will put you in the best possible situation. Attorneys are available 24/7 to take your calls. Contact our Los Angeles office today for an initial consultation.
So begins one of the more well-known speeches in American criminal jurisprudence. Whenever an individual is about to be interrogated, law enforcement officers must repeat this statement – known as one’s Miranda rights.
Further, after this statement has been read, the individual is given a choice – remain silent or waive his/her rights and speak. Unfortunately, criminal cases are full of stories about suspects who have been deemed to have waived these rights unknowingly or unwittingly.
To protect minors, who do not understand the gravity of such a waiver, the California Legislature enacted a law, which went into effect this year, prohibiting those under 16 from waiving these rights without consulting with legal counsel. A discussion of the Miranda Rights, generally, the need for this new law, and what to do if a minor is taken into police custody and interrogated, will follow below.
How Do Miranda Rights work?
The Miranda Rights have their modern incarnation in the U.S. Supreme Court’s decision of Miranda v. Arizona. Generally speaking, before any law enforcement agency may question an individual whom they suspect has broken a law, that agency must inform the individual of some of his/her basic rights, guaranteed by the Constitution, as well as other information that the individual should know prior to speaking to that law enforcement agency.
Specifically, the Miranda Rights include:
the right to remain silent;
the knowledge that anything the individual says or does, going forward, will be used against him/her in a court of law;
the right to have an attorney present before answering any questions; and
the right to have one appointed on his/her behalf if an individual cannot afford one.
How are Miranda Rights Different for Juveniles?
It is a common belief that those under 16 are not mature enough to fully comprehend their legal rights. Concerningly, law enforcement officers are trained to obtain admissions and confessions from individuals they believe have committed crimes. Part of this training includes offering false assurances (that the individuals will not be imprisoned if they speak), tricking individuals into confessing to crimes they did not commit, and questioning individuals for hours in an attempt to wear them down.
These strategies have been successful, resulting in many closed cases without great expenditure of time and money by law enforcement agencies. Their success is based, partially, on the fact that humans will generally wilt under the pressure of law enforcement interrogation, are looking for a way out of their failures, and/or will just become exhausted.
Unfortunately, while adults are able to freely make the decision whether to waive one’s rights of silence and legal counsel and fully comprehend the consequences of doing so, as mentioned above, minors under 16 typically do not possess this ability. Additionally, these children may more easily succumb to law enforcement tactics and may say something that, when used against them, and even if untrue, will have lifetime ramifications.
Accordingly, anew law was enacted and become effective this year that is intended to compensate for this lack of understanding by children under 16, through conditioning a valid waiver of Miranda Rights on prior consultation with legal counsel. This measure ensures the minors are fully aware of the consequences of any waiver of their Miranda Rights before negative effects attach, an act that calls for skilled legal representation by someone on their behalf.
Juvenile Legal Support with Miranda Rights
If a minor you know has been brought in for questioning by a law enforcement agency, contact the experienced criminal defense attorneys at Manshoory Law Group as soon as possible.
They will ensure that the child is treated properly, and maintains all rights afforded to him/her by the Constitution. Attorneys are available 24/7 to take your call. Contact us today for an initial consultation.
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