San Diego Criminal Defense Lawyer

Former Arizona Congressman Must Face Public Corruption Charges

Liz Fletcher — Thu, 01 Mar 2012 02:01:06 +0000

Members of the United States Congress are generally protected from being criminally prosecuted for their “legislative acts” under the Speech or Debate Clause of the United States Constitution. Pursuant to the clause, members of both Houses of Congress are privileged from being arrested, except for treason, felony, or breach of peace, during their attendance of sessions of Congress, and when their speech or debate held in Congress related to “legislative acts.” A similar clause in the California Constitution also protects members of the state legislature. The clause provides absolute protection for particular legislative activities, and it applies in equal force regardless of a member’s alleged motivation.

Despite its broad application, the clause is not without limitations. A promise to deliver a speech, to vote, or to solicit other votes at some future date in exchange for private gain is not considered to be a “speech” or “debate” within the meaning of the clause. Likewise, a mere promise to introduce a bill is not a legislative act. As a result, a member of Congress may be prosecuted on public corruption charges when evidence shows that in negotiating with private parties a member of the legislature solicited a bride or sought other personal gain. In investigating such charges, neither a member of Congress nor his or her aide may refuse to testify at grand jury proceedings if the testimony does not concern or impugn a legislative act.

The prosecution of a former Arizona Congressman, Richard G. Renzi, provides a good example to illustrate this point. Renzi has been charged with using his public office to benefit himself. In particular, it was alleged that Renzi had offered two private parties a deal in which they would buy private land owned by his former business partner in exchange for his promise to support future public land exchange legislation favorable to both parties. The evidence showed that the sale of land was supposed to generate enough cash to repay a debt owed to Renzi by his former business partner. The Ninth Circuit held that Renzi’s alleged conduct surrounding his negotiation was not protected under the Speech or Debate Clause because his negotiation with private parties was not a privileged legislative act under the Constitution.

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.

For more information on white collar crimes, see the following:

http://www.attorneylombardo.com/theft_white_collar_crimes/embezzlement-fraud

Supreme Court Reverses Decision of a San Diego Federal Judge

Liz Fletcher — Thu, 01 Mar 2012 01:56:23 +0000

The United States Supreme Court has held that a San Diego federal district court judge Barry Ted Moskowitz was not authorized to impose a prison sentence in order to promote the defendant’s rehabilitation. In reversing defendant’s criminal sentence, the court has ruled that Judge Moskowitz erroneously lengthened a prison term in order to allow the defendant, a long time drug addict, to qualify for and complete a drug treatment program while serving her time in a federal prison. In coming to this conclusion, the court effectively overruled the Ninth Circuit’s precedent holding that a district court judge may consider the defendant’s rehabilitation needs in setting the length of a prison term.

As a general matter, in determining the appropriate sentence courts are guided by the federal Sentencing Guidelines. Under the Guidelines, a sentencing judge must impose at least one of the following sanctions: imprisonment, probation, or a fine. In determining the appropriate sentence from among these options, a judge is required to consider specific factors, including retribution, deterrence, incapacitation, and rehabilitation. However, the Supreme Court has determined that imprisonment is not an appropriate means of promoting correction and rehabilitation, and, from now on, district court judges are prohibited from considering rehabilitation in imposing or lengthening prison sentences.

Despite this finding, courts are still permitted to consider rehabilitation in ordering other kinds of sentences. For example, in deciding whether to impose probation or supervised release, a federal district court may require an offender to undergo available medical, psychiatric, or psychological treatment, including treatment for drug or alcohol dependency. Yet, a district court judge has no authority to order a defendant to be placed in a particular facility or program when it imposes a sentence requiring incarceration. Rather, the authority to make such a placement rests within the Bureau of Prisons, and a federal judge may only recommend that the Bureau of Prisons place a defendant in a particular facility.

Supreme Court Explains the Mental State Requirement for Arson in California

Liz Fletcher — Fri, 27 Jan 2012 04:10:28 +0000

In California, there are two main statutes criminalizing conduct that results in a fire. An individual may be prosecuted for committing the crime of arson or the crime of recklessly causing a fire. A person is guilty of arson when he or she willfully and maliciously sets a fire, burns, or assists another person in burning any structure, forest, land, or property. The offense of unlawfully causing a fire, on the other hand, covers reckless accidents or unintentional fires, which are committed by a person who consciously disregards a substantial and unjustifiable risk that his or her act will set fire to forest, land, or other property. Thus, the key element of arson is that the burning must be intentional and not simply accidental.

Nonetheless, California courts disagreed on whether arson required additional showing that an individual must actually intend to cause a fire or commit another wrongful or harmful act associated with such conduct. For example, an individual may light a firecracker during the Fourth of July celebration without intending to cause a fire to the surrounding area. Recently, however, the California Supreme Court has ruled that an intentional act of throwing that firecracker into dry brush will be sufficient to establish the requisite mental state for arson even though the person did not intend to cause the fire. The court reasoned that under such circumstances the burning of dry brush is the direct and probable consequence of throwing the firecracker. Thus, an individual’s intent to do a wrongful act will be presumed or implied from his or her deliberate and intentional ignition of a firecracker.

As a result, the prosecution is no longer required to prove that persons knew or were subjectively aware that the fire would be the probable consequence of their acts. Rather, individuals may be guilty of arson if they act with awareness of facts that would lead a reasonable person to realize that the direct, natural, and highly probable consequence of their actions would result in burning of a structure or land. Most notable examples of such conduct include throwing a firecracker into dry brush resulting in the burning of the hillside, or lighting the weeds in a cleared area in a canyon that has heavy brush, trees, and grass.

For more information on California felony and misdemeanor offenses, see the following:

http://www.attorneylombardo.com/felonies_misdemeanors/san_diego_arrested

Sentencing: California Felony Convictions Increase Punishment under Federal Law

Liz Fletcher — Mon, 09 Jan 2012 02:22:49 +0000

It is a federal crime for a convicted felon to be in unlawful possession of a firearm, and the ordinary maximum sentence for that crime is 10 years of imprisonment. However, under the Armed Career Criminal Act (Act), a convicted felon unlawfully in possession of a firearm is subject to a 15-year minimum prison sentence if that individual has previously been convicted of a violent felony or serious drug offense. This federal Act has been enacted to specifically target the so called “armed career criminals” whose criminal history shows that they are more likely to deliberately point the gun and pull the trigger at an innocent person.

Under the Act, a serious drug offense may be an offense under state law involving manufacturing, distributing, or possessing with intent to manufacture or distribute, any controlled substance for which a maximum term of imprisonment is ten years or more. An actual prison term of ten years is not required. Rather, the fact of conviction for such drug offense will be enough. Also, subsequent changes in state law cannot simply erase an earlier conviction for purposes of federal sentencing proceedings unless a conviction has been expunged or set aside, or an individual has been pardoned. Thus, it is critical to consult with an experience criminal defense lawyer, who will be able to provide an accurate legal advice as to the possibility of expunging prior criminal record.

A violent felony under the Act is a crime that has as an element of use, attempted use, or threatened use of physical force against another person. As such, assault with a deadly weapon, robbery, burglary, arson, or extortion, are all considered qualifying offenses for purposes of the Armed Career Criminal Act. In addition, courts usually take into account other felony convictions involving conduct that presents a serious potential risk of physical injury to another. Most recently, the United States Supreme Court has held that a state conviction for vehicle flight is a violent felony under the Act because defendant’s determination to escape makes a lack of concern for the safety of others an inherently dangerous part of the offense.

For more information on drug crimes, see the following:

http://www.attorneylombardo.com/drug_crimes/possession-sale-controlled_substance

For more information on clearing criminal records, see the following:

http://www.attorneylombardo.com/clearing_criminal_record/expungement-clearing-sealing

Supreme Court: BAC Reports Subject to the Sixth Amendment Scrutiny

Liz Fletcher — Mon, 09 Jan 2012 02:18:10 +0000

Recently, the United States Supreme Court has ruled that the prosecution is prohibited from introducing a forensic laboratory report containing a BAC (blood alcohol concentration) certification through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification. The court reasoned that analyst’s certification of evidence prepared in connection with a criminal investigation was “testimonial” in nature, and, therefore, fell within the core statements protected by the Confrontation Clause of the Sixth Amendment to the United States Constitution. From now on, forensic analysts who write reports to be introduced as evidence against defendants at trial must be made available for defense counsel’s cross-examination. Otherwise, such evidence will be inadmissible, and the case may be dismissed.

Under the Sixth Amendment, every accused in a criminal prosecution has the right to be confronted at trial with the witnesses who testifies against that individual. The Confrontation Clause permits the admission of testimonial statements of witnesses who are not present at trial only where such witnesses are unavailable, and only where the defendant has had a prior opportunity to cross-examine those individuals. A forensic laboratory report stating that the accused’s blood alcohol concentration was over .08% is ranked as testimonial pursuant to the Sixth Amendment’s Confrontation Clause because it is created for the sole purpose of introducing it against the defendant at trial to secure his conviction.

Absent stipulation, the prosecution may no longer be able to introduce such a report by eliciting the testimony of a live witness who had neither participated in nor observed the test on the defendant’s blood sample. This decision casts serious doubt upon the validity of the California rule that allows the introduction of DNA evidence against the defendant at trial based upon the testimony of a forensic specialist who did not perform the original testing. Since DNA and BAC testing remains the most common forensic examinations performed in San Diego, this ruling enables defense attorneys to be more compelling in arguing for dismissal of a criminal prosecution based upon a violation of the defendant’s Confrontation rights.

Supreme Court: Age of a Child is a Relevant Factor in Miranda Cases

Liz Fletcher — Fri, 23 Dec 2011 18:31:08 +0000

Recently, the United States Supreme Court has held that the age of a child subjected to police questioning is a relevant factor to consider in determining where a minor must be given Miranda warnings before being questioned by law enforcement officers. Under Miranda, an individual must be advised of the rights to remain silent and request an attorney before being questioned by the police while in custody. All statements taking in such custodial settings are presumed to be compelled and inadmissible unless there is a showing that individuals have made a knowing and voluntary waiver of their Miranda rights. The purpose of the rule is to safeguard the constitutional guarantee against self-incrimination by allowing individuals to invoke their right not to speak with the police when they are subjected to custodial interrogation.

Pursuant to Miranda, suspects must be warned that they have a right to remain silent, that any statement they make may be used as evidence against them, and that they have a right to the presence of an attorney, either retained or appointed. Both adult and minor suspects are entitled to such warnings as long as they are questioned in custodial settings. Unlike adults, children are generally more vulnerable to outside pressures, and often lack the necessary experience to recognize and avoid choices that could be detrimental to them, including giving statements to the police that could implicate them in a crime. Until recently, however, there was no clear requirement to take the minor’s age into account in evaluating whether an individual was in custody for the purposes of the court’s analysis.

A reasonable child subjected to police questioning may feel pressured to continue answering questions when a reasonable adult would feel free to go and terminate his or her encounter with the police. In recognizing this important difference, the Supreme Court has held that so long as the child’s age is known to a police officer at the time of police questioning, or would have been objectively apparent to a reasonable police officer at the time of such an encounter, it must be included in the custody analysis. This does not mean that the age of a child must be a determinative factor in every case. Rather, the courts must now take the minor’s age into account when considering where there has been such a restriction on a child’s freedom as to render him or her in custody.

This office handles all aspects related to juvenile defense in San Diego County. For a free consultation, contact us at (619) 232-5122 or: info@attorneylombardo.com

For more information on juvenile crimes, see the following:

http://www.attorneylombardo.com/juvenile_defense/delinquency-record

California Allows Prison Inmates To Earn Work Time Credits While Incarcerated

Liz Fletcher — Fri, 23 Dec 2011 18:21:50 +0000

In California, defendants convicted of a crime and sentenced to a determinate term in the state prison are required to serve their entire sentence imposed by the court, except for a reduction in the time served as a result of their performance in work, training or education programs organized by the prison administration. This reduction in an inmate’s prison sentence is usually referred to as work time credits, which allow inmates to earn custody credits against their term of imprisonment. Under the law, for every six months of continuous incarceration, a prisoner may be awarded credit reductions for up to six months from his or her term of confinement. Accordingly, it is possible for a prisoner to receive a 50 percent reduction in his or her sentence.

However, a credit is a privilege, not a right. It has to be earned, and may be forfeited if an inmate has committed a crime, has refused to satisfactorily perform labor, or has not satisfactorily complied with the reasonable rules and regulations. The law also imposes an additional limitation on inmates’ ability to earn work time credits when they are convicted of violent felonies. Such individuals are ineligible to receive work time credits in excess of 15 percent even though they may be otherwise eligible for a 50 percent work time credits. A violent felony includes mayhem, rape, sodomy, robbery, arson, kidnapping, or any felony in which the defendant inflicted great bodily injury on another person. A person who is convicted of murder, however, is not entitled to receive any work time credit.

An important issue arises, when, for example, an individual is convicted of both violent and nonviolent felonies. Whether an inmate will still be eligible for a 50 percent reduction in his or her sentence? Last term, the California Supreme Court held that such defendants were entitled to only 15 percent work time credits, even when the sentence for a violent felony was stayed by the trial court. In the same manner, an individual who is convicted of murder and another offense, for which such a person is eligible for a 50 percent sentence reduction, is not entitled to any presentence conduct credit even if the trial court stayed the execution of the sentence for murder. Since the court’s decision applies retroactively to inmates who were released on parole, many of them must return to prison to complete their newly calculated prison terms.

This office handles all aspects related to criminal sentencing in San Diego County. For a free consultation, contact us at (619) 232-5122 or: info@attorneylombardo.com

Defending Wobbler Offenses in San Diego

Liz Fletcher — Tue, 20 Dec 2011 16:58:39 +0000

There are three categories of offenses in California: those that are punished as a felony, misdemeanor, or an infraction. A felony is a crime which is punishable by death or imprisonment in the state prison. Every other crime or public offense is a misdemeanor except those offenses that are classified as infractions. Infractions are not punishable by imprisonment unless to satisfy an infraction fine. Often, however, a criminal statute prescribes a punishment for a specific offense as either local time in a county jail or the state prison. In such situations, the prosecution has the discretion to charge them as either felonies or misdemeanors. Such offenses that can be prosecuted as either misdemeanors or felonies are commonly called “wobblers.”

When an individual is convicted of a “wobbler” offense, and is granted probation without the imposition of a sentence, his or her offense is deemed a felony unless it is subsequently reduced to a misdemeanor by the sentencing court. The court’s discretion to reduce a felony to a misdemeanor is not abrogated by California’s “three strikes” law. This means that the trial court may still reduce a conviction for a “wobbler” offense to a misdemeanor to avoid sentencing an individual under the “three strikes” law as a qualifying prior. At the same time, though, the court’s discretion to reduce a “wobbler” offense does not include the power to relieve the defendant of the duty to register as a sex offender pursuant to the Sex Offender Registration Act.

Reduction of a felony offense to a misdemeanor can be done either on the court’s own motion or on that of defense counsel. The prosecution’s consent is not required for the court to reduce a “wobbler” offense to a misdemeanor conviction. As a result, the trial court usually decides such requests by reviewing motions filed by defense counsel. Usually, the court looks to sentencing factors to decide whether reduction a felony to a misdemeanor is permitted. If the court reduces a felony offense to a misdemeanor, it is treated so for all purposes except that it retains the felony statute of limitations. Hence, it is critical to contact an experience criminal law attorney, who can provide accurate legal advice as to the possibility of reducing a particular “wobbler” offense to a misdemeanor.

This office handles all types of matters related to reduction of a felony offense to a misdemeanor, expungement, certificate of rehabilitation, governor’s pardon, or sealing arrest records in San Diego County. For a free consultation, contact us at (619) 232-5122 or: info@attorneylombardo.com.

For more information on clearing a criminal record, see the following:
http://www.attorneylombardo.com/clearing_criminal_record/expungement-clearing-sealing

Indeterminate Commitment on Certain Sexually Violent Offenders

Liz Fletcher — Tue, 20 Dec 2011 16:54:50 +0000

In California, the Sexually Violent Predators Act provides for the involuntary indeterminate civil commitment of certain offenders who are found to be SVP’s. A “SVP” is a person who has been convicted of a sexually violent offense against one or more victims, and who has a diagnosed mental disorder that makes that person a danger to the health and safety of others and predisposes such an individual to commit sexually violent offenses. Certain sex crimes constitute sexually violent offenses within the meaning of the statute, including rape, sodomy, oral copulation, sexual penetration, or lewd or lascivious acts, when committed by force, violence, duress, menace, or fear of immediate unlawful bodily injury of the victim or another person.

An indeterminate civil commitment is not considered a punishment. Rather, its purpose is to provide treatment to those offenders who suffer from a mental illness that increases the risk of harm to the public. Nonetheless, since a civil commitment involves a significant deprivation of liberty, a defendant in an SVP proceeding is entitled to due process protections. This protection provides certain procedural rights, entitling the person to a trial by jury, the assistance of counsel, the right to retain experts or professional persons to perform an examination on his or her behalf, and to have access to all relevant medical and psychological records and reports. The main purpose of SVP proceedings is to determine whether persons posses a danger to others, and that they are likely to engage in sexually violent offenses in the future.

Currently, there are approximately 700 patients in California who have been committed to the SVP treatment program. The probability of successfully completing the sex offender treatment program is less than 5%. In other words, the vast majority of the individuals who are civilly committed may never be released because they will never be able to successfully complete their state prescribed treatment program. As a result, the importance of an excellent legal representation of those individuals who are facing SVP proceedings before the completion of their prison terms is critical. In many instances, this will mark the difference between being released from custody or confined indefinitely to a state mental institution with a stigma of a SVP offender.

This office handles all aspects related to the defense of sex crimes in San Diego County. For a free consultation, contact us at (619) 232-5122 or: info@attorneylombardo.com

California Imposes Life Sentences for Specified Sex Crimes

Liz Fletcher — Mon, 05 Dec 2011 03:23:29 +0000

In California, many people are familiar with the terms “three strikes” or “multiple strikes” convictions. Such terms refer to a California law that has dramatically increased punishment for individuals convicted of felony offenses who have previously been convicted of one or more serious or violent felonies. Persons with two or more “strikes” earn no good time credits and face a minimum sentence of 25-years-to-life in prison. In addition to the three strikes law, California has also enacted the “one strike” law that provides for enhanced indeterminate terms of either 15 or 25-years-to-life for those defendants who commit enumerated felony sex offenses under specified circumstances. Among the enumerated sex crimes, the law includes rape, sexual penetration, lewd or lascivious act, sodomy, oral copulation, or continuous sexual abuse of the child.

Pursuant to California’s one strike law, the court is requires to impose a life sentence when an individual is convicted of an enumerated sexual offense, and the prosecution has pleaded and proved one or more of the specified aggravating circumstances. The list of the aggravating circumstances includes, for example, that the defendant personally inflicted bodily harm on a child, personally used dangerous or deadly weapon during the commission of the specified sex crimes, the defendant engaged in the tying or binding of the victim or administered an illegal drug to the victim during the commission of the crime, or that the defendant has been convicted of sex crimes against more than one victim.

So, how many life sentences the trial court must impose on an individual who has been convicted of multiple sex offenses committed against different victims on separate occasions? In sentencing such a defendant the one strike law requires the trial court to impose one indeterminate life term per victim per occasion. This means that the one strike scheme contemplates a separate life term for each victim attacked on each separate occasion, no matter how many specified sex offenses the defendant had actually committed against a particular victim on a particular occasion. The court has no authority to strike a conviction for the purpose of sentencing. However, the court may still exercise its discretion in imposing concurrent or consecutive life terms. For example, the trial court is permitted to sentence the defendant to three consecutive or concurrent terms of 15 years to life for committing lewd or lascivious acts upon two different victims on three different occasions.

This office handles all aspects related to the defense of sex crimes in San Diego County. For a free consultation, contact us at (619) 232-5122 or: info@attorneylombardo.com

For more information on defending sex crime cases, see the following:

http://www.attorneylombardo.com/sex_crimes/child-molestation_defense