Archive for the ‘San Diego Criminal Defense Issues’ Category

Plea bargaining or case settlement is usually referred to negotiation between the prosecution and defense in order to resolve a criminal case without going to trial. Typically, during plea bargaining the defense agrees to plead guilty or no contest to one or more of the charged offenses in exchange for the prosecution’s promise to either drop some of the charges or enhancements, reduce charges to less serious offenses, or file no additional charges. If such an agreement is reached between the parties, the defendant enters a plea, thus resolving the factual issues and the need for trial.

The basic principle underlying plea bargaining is the fact that both the prosecution and defense must abide by the terms of the agreement, and the imposed punishment may not significantly exceed that which the parties agreed upon. As a result, plea bargains are generally governed by the law of contracts, which means that a plea bargain approved by the court is enforceable not under criminal law but under contract principles. Like the parties to a private contract, the state and the defendant are bound by the agreement as between themselves. However, in California the sentencing court is not bound by the bargain. Instead, it is empowered to disapprove it and deny it effect, at least so long as the parties can be restored to their original positions. This gives the accused an opportunity at the time of his or her sentencing to withdraw the original plea in the light of further consideration of the matter pending before the court, and resume proceedings where they left off.

In San Diego, over 90 percent of criminal cases are disposed before trial. The primary reason for plea bargaining is to save money by eliminating court congestion. Pleading guilty or no contest at an early stage of a criminal case eliminates subsequent court hearings and saves the Court’s time. The prosecution may be also interested in case settlement because of concerns related to potential problems of proof, or protecting particular vulnerable victims, for example, small children, from having to testify at trial against his or her accuser. In many cases, an experienced criminal law attorney is able to plea bargain for a more lenient sentence or a less serious charge for his or her client.

An attorney that does not go to trial, however, cannot reliably handicap a plea bargain on behalf of a client.

The San Diego Law Office of Domenic J. Lombardo is dedicated to defending criminal charges in State, Federal, and County courts throughout San Diego. For a free consultation, contact us at (619) 232-5122, or: info@attorneylombardo.com.

No CommentsTags: accused, case settlement, criminal charges, criminal defense attorney, defense lawyer, guilty plea, lenient sentence, plea agreement, plea bargaining, prosecution, punishment, sentencing judge, trial court, withdraw the pleaRead More

Fifteen years after the passage Proposition 215, the San Diego County Probation Department is just now adopting a set of rules on how they will handle sentencing recommendations for medical marijuana patients who have felony probation matters. The Probation Department, of course, makes written recommendations to felony sentencing judges on conditions of probation for felony criminal defendants. The standard recommendation is to prohibit the use of all controlled substances, including marijuana, while on felony probation. The judges always adopt this recommendation. However, the Department will now start making recommendations as to whether a medical marijuana patient should be allowed to continue use of marijuana while on felony probation. While the rules have not been published, I believe that the following guidelines will be in effect from this day forward.

For those patients that are to be sentenced to a grant of felony probation, to lawfully use marijuana the defendant should:

1. Consult with their attorney.

2. Obtain a recommendation for the use of marijuana from a licensed physician.

3. Obtain a Medical Marijuana Identification Card (MMIC) from the San Diego Department of Health and Human Services. For more information phone 619-692-5723. The San Diego County Medical Marijuana Identification Card (MMIC) Program provides patients with the State medical marijuana identification card, a voluntary card registration program that identifies medical marijuana patients under the Compassionate Use Act.

4. Obtain a letter from their personal physician detailing a diagnosis of a medical condition that is currently being treated. The letter must come from the physician actually providing the treatment.

5. Inform the probation officer who is making the sentencing recommendation of the need to use marijuana. The officer will consider the quality of the information provided and make a recommendation to the court.

The sentencing judge will make the final decision and must approve the use of marijuana for medical purposes while on probation.

For those patients already on a grant of felony probation, the defendant should:

1. Consult with a lawyer.

2. Obtain a recommendation for the use of marijuana from a licensed physician.

3. Obtain a Medical Marijuana Identification Card (MMIC) from the San Diego Department of Health and Human Services. See, above.

4. Obtain a letter from their personal physician detailing a diagnosis of a medical condition that is currently being treated. The letter must come from a physician proving the treatment.

5. Notify the supervising probation officer of the need to use marjijuana.

6. Obtain a modification of probation to obtain the judge’s approval for the medicinal use of marijuana while on probation.  This means another trip to court in order to obtain a judge’s approval. For information on modification of probation, see  http://www.attorneylombardo.com/sentencing_probation/jail-restricted

For more information, contact the Law Office of Domenic J. Lombardo:

info@attorneylombardo.com / (619) 232-5122

No CommentsTags: attorney, Compassionate Use Act, conditions of probation, controlled substances, criminal, defendants, diagnosis, felony, felony sentencing, guidelines, judges, lawyer, licensed physician, marijuana, marijuana identification card, Medical Marijuana Identification Card Program, medical marijuana patient, medical marijuana patients, MMIC, modification of probation, probation, Proposition 215, recommendations, San Diego Department of Health and Human Services, Sentencing, smoke, the San Diego County Probation Department, treatmentRead More

Residents of San Diego often encounter various DUI checkpoints located in Pacific Beach, Imperial Beach, Coronado, El Cajon, South Bay, Poway, or Vista. These temporary checkpoints are usually put in place by the San Diego Sheriff’s Department on Friday and Saturday nights between 8 P.M. and 2 A.M. to remove impaired or unsafe drivers from the city’s roadways. These checkpoints are staffed by approximately 15-20 DUI trained deputies who check thousands of vehicles in their pursuit for drunk drivers. During such inspections, individuals are arrested for all kinds of violations, including DUI, driving on a suspended driver’s license, possession of marijuana and other illegal drugs, or driving without proof of current vehicle registration or insurance coverage.  

The operation of sobriety checkpoints, also known as sobriety roadblocks or driver safety checkpoints, must comply with the constitutional principles against unreasonable searches and seizures articulated by the Fourth Amendment to the United States Constitution. To be constitutional, the location of the checkpoint must have a high incidence rate of alcohol-related accidents or arrests, an average length and nature of such detention has to be at a minimum, and drivers must be stopped according to a neutral formula, such as every third, fifth or tenth driver. Advanced publicity related to the operation of a sobriety checkpoint is recommended but not constitutionally required.  

When a trial court finds that a local law enforcement agency that conducted a particular stop at a checkpoint failed to comply with constitutional principles against unreasonable searches, evidence seized during an illegal stop may be suppressed. Such evidence usually includes an individual’s blood alcohol level, drugs or firearm found in a car, or other information collected as a result of the stop. An experienced criminal defense lawyer knows how to determine whether the San Diego Sheriff’s Department or other local law enforcement agency is in full compliance with the constitutional requirements imposed on such agencies when it stops vehicles at sobriety checkpoints.

The San Diego Law Office of Domenic J. Lombardo is dedicated to defending criminal charges in State, Federal, and County courts throughout San Diego. For a free consultation, contact us at (619) 232-5122, or: info@attorneylombardo.com.

No CommentsTags: accident, criminal defense lawyer, driver, drugs, dui, evidence, firearm, Fourth Amendment, illegal search, inspection, law enforcement, marijuana, officer, prosecution, publicity, roadblocks, San Diego Sheriff’s Department, search, search and seizure, sobriety checkpoints, suppression of the evidence, trial courtRead More

I am often contacted by individuals seeking advice about whether they need legal advice before meeting with law enforcement. Often, these individuals do not feel that they have anything to hide from the police and that their lack of cooperation will be viewed with suspicion. Further, because employment obligations, management duties, or insurance policy coverage may require cooperation with law enforcement, failure to meet with law enforcement could create problems in these areas.

Police officers know that people harbor these fears. They also know that most people instinctively want to appease law enforcement, so they will waive their right to remain silent and that they will waive their right to have an attorney present and they will answer any questions freely and voluntarily. Police can nevertheless lie to their suspect in order to obtain a statement, they can minimize the severity of the alleged conduct, and they can hide the true purpose of their inquiry. The police do not have to interrupt questioning to advise a person of their legal rights until that person is placed under arrest. But even when law enforcement is completely honest about their intentions to obtain incriminating information from the person they seek to question, and even when they advise a person of their rights, most people will talk anyway.

Talking to the police without the advice of legal counsel is often a costly mistake. Criminal defense attorneys play a key role in any interrogation involving a potential criminal matter. My colleague has a largemouth bass on a plaque in his office. The caption below the fish reads, “If I had only kept my mouth shut.”

No CommentsTags: arrest, cooperation, criminal defense attorney, criminal defense attorneys, interrogation, law enforcement, lawyer, legal advice, legal counsel, lie, police, questioning, rights, statementRead More

Judge DeAnn Salcido filed a lawsuit against the San Diego Superior Court Presiding Judge, her boss, and the rest of the San Diego bench (the rest of the judges) in an unprecedented and bizarre move apparently aimed at gaining the attention of voters in her upcoming election. Although she claims she filed the lawsuit to keep her colleagues from harassing her into accepting plea agreements that she says violate state law, there is no doubt that the great majority of the legal community views her lawsuit as frivolous. At a press conference, she singled out her boss, the Honorable Judge Peter Deddeh for special criticism for his role in accepting a plea agreement that gave sex offender John Gardner a shorter term than the maximum allowed by law. After his release, Gardner become a murderer in the sensational and shocking killings of Amber Dubois and Chelsea King. The criticism of Judge Deddeh, however, is especially unwarranted given the benefit of hindsight. Judge Deddeh is respected among his colleagues, the prosecution and the criminal defense bar. He is not viewed as a judge who hands out lenient sentences. Judge Salcido, on the other hand, is thought by many to lack the qualifications necessary to fairly administer justice.

No CommentsTags: Amber Dubois, Chelsea King, criminal defense, election, John Gardner, Judge DeAnn Salcido, justice, killings, lawsuit, murderer, Peter Deddeh, plea agreement, San Diego Superior Court, Sex Crimes, sex offenderRead More

Local attorneys and judges are mystified as to why San Diego County District Attorney Bonnie Dumanis ordered her prosecutors to file peremptory challenges in all criminal cases assigned to the Honorable Judge John S. Einhorn. Judge Einhorn is known as a tough, smart judge who routinely handles complex, high-profile criminal matters. He has an excellent reputation in the legal community. So why would the D.A. want one of the best trial judges removed from hearing criminal matters?

Criminal defense lawyers speculate that the D.A. thinks this tough judge wasn’t tough enough in recently denying a defense attorney’s request to bar the prosecution from retrying a murder case. Yes – the Judge denied the request – but that apparently wasn’t good enough for the prosecution. The D.A. believes that the Judge should never have entertained the motion in the first place. Why? Because the hearing on the motion forced the D.A.’s office to defend allegations that exculpatory evidence, which resulted in a nullified verdict, was deliberately withheld from the defense. The D.A. would rather have avoided the hearing entirely by saying, in effect, “trust us, we didn’t cheat.” The boycott therefore appears to be retaliation against the Judge for Dumanis having to defend the conduct of her deputies. For now, the D.A. refuses to reconsider her boycott or give reasons why the boycott exists at all.

No CommentsTags: attorneys, Bonnie Dumanis, boycott, criminal cases, criminal defense lawyers, criminal matters, D.A., deputies, exculpatory evidence, hearing, John S. Einhorn, judge, judges, motion, murder, peremptory challenges, prosecution, retrial, San Diego Criminal Court, trial judge, verdictRead More

The San Diego County Public Defender’s, together with private criminal defense lawyers and local veterans groups, is reportedly putting together a legislative proposal for the diversion of criminal cases for combat veterans. The Penal Code already provides for alternative sentencing for combat veterans suffering from post traumatic stress disorder (PTSD), substance abuse, or psychological problems stemming from “serving in a combat theatre in the United States Military.” The new proposal would go much further in allowing for the diversion of criminal charges for qualifying veterans in the same way that diversion operates for non-violent drug possession offenses. Typically, a diversion qualified drug defendant pleads guilty and sentencing is deferred while the defendant is ordered to complete a treatment program and stay out of trouble for at least 18 months. After successful diversion, the guilty plea is withdrawn and the “arrest is deemed never to have occurred.” Combat veterans who suffer from the above mentioned problems would be allowed diversion in a wide range of cases, from petty theft and burglary to domestic violence. The San Diego criminal justice system has accommodated Vietnam veterans subject to minor prosecutions in the annual Stand Down Court. Accommodating all combat veterans for a broader range of cases is the stated goal of the defense bar. To succeed, the proposal would likely need the support of Office of the District Attorney and law enforcement groups. Hopefully all parties can agree that diversion for combat veterans is in the interests of justice.

No CommentsTags: arrest, burglary, combat veterans, criminal defendant, criminal defense lawyers, criminal justice, defendant, diversion, Domestic Violence, drug possession, guilty plea, law enforcement, Office of the District Attorney, petty theft, post traumatic stress disorder, psychological problems, PTSD, San Diego County Public Defender's, Sentencing, Stand Down Court, substance abuse, treatment program, United States MilitaryRead More

Harvard professor Henry Louis Gates Jr., an African-American scholar, was recently arrested at his residence by Cambridge police officer Sergeant Crowley who was investigating a reported break-in. Professor Gates was arrested after he yelled at the investigating officer repeatedly from inside the residence. He showed identification and then reportedly resisted a demand to step onto the porch. He did eventually follow the officer outside, where Gates continued to upbraid the officer. “It was at that time that I informed Professor Gates that he was under arrest,” the officer wrote in the report.

Law enforcement offices throughout the country no doubt sympathize with the officer’s plight in this situation. The officer thought he was going to get a “thank you” and Professor Gates thought he was a suspect because of his race. So if this case occurred in San Diego County,  under California law, on these same facts, who was acting unlawfully: Professor Gates or the police officer? This is a routine type of question for criminal defense lawyers. San Diego criminal attorneys routinely defend cases that begin with an officer’s claim that the defendant was not cooperating while they lawfully preformed their duties.

While it is not unlawful to yell at a police officer in anger for a perceived wrong such as racial profiling, it is unlawful under California law, to willfully resist, delay, or obstruct a sworn law enforcement office, or an emergency medical technician, in the discharge or attempt to discharge any duty of his or her office or employment. This provision is commonly referred to as “resisting arrest.” Some law enforcement officers no doubt justify arrests under this provision for those that “flunk the attitude” test. Conviction of misdemeanor resisting arrest carries a fine not exceeding one thousand dollars ($1,000), or imprisonment in a county jail not to exceed one year.

Professor Gates may correctly argue, however, that for a resisting arrest conviction to be valid, a criminal defendant must have resisted, delayed, or obstructed a police officer in the lawful exercise of his duties. In California, the lawfulness of the officer’s conduct is an essential element of the offense of resisting, delaying, or obstructing a peace officer. If the officer was not performing his or her duties at the time of the arrest, the arrest is unlawful and the arrestee cannot be convicted under Penal Code section 148 (a)(1)(resisting arrest). Excessive force used by a police officer at the time of the arrest is not within the performance of the officer’s duty. An arrest made with excessive force is therefore unlawful. It is a public offense for a peace officer to use unreasonable and excessive force in effecting an arrest. Professor Gates would claim that after he showed his identification the officer’s duties ended and the excessive force began.

Arresting officer Crowley, on the other hand, may correctly argue that “the time of the arrest” does not include previous stages of law enforcement activities that might or might not lead to an arrest, such as conducting an investigation; it includes only the time during which the arrest is being effected. A conviction for resisting arrest under 148(a)(1) may be lawfully obtained only if the officers do not use excessive force in the course of making that arrest. A conviction based on conduct that occurred before the officers commence the process of arresting the defendant is not necessarily rendered invalid by the officers’ subsequent use of excessive force in making the arrest. For example, the officers do not act unlawfully when they perform investigative duties a defendant seeks to obstruct, but only afterwards when they employ excessive force in making the arrest. Similarly, excessive force used after a defendant has been arrested may properly be the subject of a Civil Rights lawsuit action notwithstanding the defendant’s conviction on a charge of resisting an arrest that was itself lawfully conducted. Sergeant Crowley would thus contend that the professor delayed and obstructed a lawful investigation by failing to cooperate before the arrest outside on the porch.

In any event, no matter who has the best legal argument, any criminal defense lawyer knows that a jury will apply a common sense approach to evaluating the conduct of both of the parties. Clearly, in this case, Professor Gates would not be convicted by a jury of his hypothetical California peers, whether he is absolutely right on the law or not.  And, as California juries are historically reluctant to side against cops, Officer Crowley would also likely escape any claim for money damges based upon a Civil Rights violation.

Contact us to help with your case, (619) 232-5122, or  info@attorneylombardo.com.

No CommentsTags: 148(a)(1), California law, criminal defense lawyer, delaying and officer, Domenic J. Lombardo, excessive force, law enforcement, misdemeanor resisting arrest, obstucting an officer, police officer, Professor Gates, san diego criminal defense attorney, san diego criminal lawyer, Sergeant Crawley, unlawful forceRead More

The El Cajon Police Department yesterday published the names and photographs of men convicted of soliciting an act of prostitution and women convicted of agreeing to an act of prostitution. The men were snared through undercover officers posing as prostitutes. The woman were snared by undercover officers posing as Johns. Prostitution involves agreeing to pay for a sex act together with an act in furtherance of the agreement. The City of El Cajon decided that this crime is so serious that they will specially treat those convicted of prostitution to public shame and humiliation. Currently, El Cajon is the only City in San Diego County to publish the names and photographs of the convicted online, and I hope it will remain that way.  In my view the police should not be publishing this information. Internet publication of offender information goes well beyond what is otherwise in the public record. The public record of conviction does not contain a photograph of convicted person and is not available to anyone with a computer, nor does it need to be. Moreover, internet information may live forever in cached sites. A person is entitled to clear their record though rehabilitation and expungement without being permanently stigmatized. In San Diego, Criminal defense lawyers expunge prostitution convictions every day. If you believe that women are exploited by prostituting themselves, you would agree that they are further exploited and victimized by the stigma of  publishing their conviction and photo to the world. The majority of these women are teenagers. They deserve a second chance. No one can seriously believe that these women will be deterred from their conduct. The men – Johns – obviously have a lot to lose and arguably are deterred by publishing their names and photographs, but why are they also singled out for this public shaming and those convicted of other crimes ignored? They are obviously also entitled to rehabilitation and expugement without having to suffer beyond their punishment. For my part, this San Diego County criminal defense attorney will continue to fight these matters to jury trial, especially in El Cajon. I have had multiple prostitution juries report to me that they believe the time and money spent prosecuting these matter would be much better spent on other crimes.

No CommentsTags: criminal defense lawyer, el cajon, expungement, jury trial, prostitution, san diego criminal defense attorney, san diego lawyerRead More