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California’s Amended Firearm Use Enhancements Open a Door for Skillful Advocacy

Posted By admin 2018-03-29 20:08:21

Californians are no longer subject to a mandatory sentence enhancement for use of a firearm while committing or attempting to commit a felony under state law. Senate Bill 620, effective as of January 1, 2018, amended section 12022.53(h) of the Penal Code of California to make firearm use enhancement discretionary. A state court judge in California may strike or dismiss a firearm use enhancement if doing so would be in the interest of justice. This stands in contrast to federal law, which still requires a mandatory-minimum prison term for possessing a gun during commission of a drug offense or a violent crime.

In California, it is more important than ever for a person charged with a felony involving a firearm to retain an attorney who has specialized knowledge of firearm use enhancements. Defendants and their attorneys now have an opportunity to persuade state courts against imposing the firearm use enhancement. This even includes some cases where firearms enhancements have been ordered. The California Court of Appeal for the Second District just ruled this month in Almanza that the amendment applies retroactively to benefit defendants whose cases were on appeal when the law changed.

Before the amendment, Penal Code 12022.53 automatically added to a sentence for certain violent felonies 10 years’ jail for “using” a gun, 20 years’ jail for firing a gun, or 25 years’ jail to a life sentence for killing or seriously injuring another person with a gun. For remaining felonies, individuals who personally used a firearm or assault weapon in the commission of a crime were automatically subject to an additional and consecutive prison term of 3, 4, or 10 years for a firearm, or 5, 6 or 10 years for an assault weapon. It is laudable and sensible that firearms enhancements are no longer automatic.

In California, mandatory firearms enhancements resulted in countless unreasonably high sentences, especially in cases where the firearms were not operable or loaded. The social costs of mandatory firearms enhancements outweighed any purported public safety benefit. In debate about Senate Bill 620, Californians for Safety and Justice presented research to the Senate showing that firearms enhancements disproportionately increased racial disparities in California’s prison populations, and greatly increased the population of incarcerated persons, without deterring crime.

As a defense attorney in Los Angeles who specializes in violent crimes, I also saw firsthand how firearms enhancements affect people already serving their sentences. Enhanced sentences served for firearms use are sometimes the only obstacle to early parole for some persons under Proposition 57. For example, an individual convicted of assault with a firearm on a peace officer may be subject to an additional term under Penal Code section 12022.53. Any violation of PC 12022.53 is deemed a violent felony under PC 667.5(c), which makes that individual ineligible for early parole consideration under Proposition 57. However, without the additional term under PC 12022.53, that same offender would be eligible for early parole under Proposition 57 because assault with a firearm on a peace officer is not a violent felony under Penal Code section 667.5(c).

Discretionary firearm enhancements allow courts to tailor sentences to each case and offender. However, it is likely that firearm use enhancements will continue to be imposed in many-if not most-state felonies where firearms are used. One reason is that courts will carefully examine the aggravating features of cases involving firearms to decide what enhancements should apply. For instance, in Almanza, the Court decided not to remand the case to trial court to reconsider imposing a lower sentence without firearm enhancements in part because of the case’s egregious facts.

Defense lawyers must respond by taking a meticulous approach to trial advocacy, which includes putting on the record all mitigating factors in their cases that would weigh in favour of striking firearms enhancements. This includes thinking ahead to how firearms enhancements affect parole eligibility. Such submissions are crucial to persuade a trial judge to strike or dismiss a firearms use enhancement, as well as to protect the record for appeal.

The changes to section 12022.53 create room for defense attorneys to advocate for lower, more reasonable sentences for their clients. Individuals charged with felonies involving firearms should look for a lawyer who has a technical understanding of firearms enhancements, preferably under both state and federal law. Courts will be listening closely to defense attorneys’ submissions against firearms enhancements, and attorneys must be prepared at all stages of litigation to address how firearms enhancements affect several dimensions of a criminal case.

Karen L. Goldstein specializes in state and federal violent crimes as well as felonies where firearms are typically used, such as drug offenses. Please call (888) 445-6313 for more information.

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The Case For Taking California’s Sex Offender Registry Offline

Posted By admin 2018-03-29 20:04:53

As a criminal defense lawyer in Los Angeles who specializes in sex crimes, I have witnessed firsthand the devastating effects that California’s online sex offender registry has on offenders’ lives and reputations well after they served their sentences. California has long been one of the toughest states on the punishment of sex offenders. The state has over 105,000 designated sex offenders, and, until recently, California was just one of four states that mandated lifetime enrolment on the sex offender’s registry. The lack of discussion among California lawmakers about who should have access to California’s sex offender registry in the wake of reform is troublesome. Under the revised sex offender registry system, many sex offenders will continue to appear on California’s online public sex offender registry for one or more decades after completing their sentences. Public searches of registrants for improper purposes will continue to imperil offenders’ employment, housing and other opportunities vital to reintegration without any proven public safety benefit. California must next address the registry’s availability to the public online.

In October 2017, California passed a law that will end lifetime listings for lower-level sex offenders who pose little risk of committing new crimes. This law, formerly referred to as Senate Bill No. 384, is a sensible first step toward addressing the deleterious effects of California’s bloated sex offender registry. The bill creates a three-tiered system which lawmakers claim will allow sex crimes investigators to focus on those offenders who pose the greatest risk to public safety. Under the reformed system, low-level sex offenders can petition to be removed from California’s sex offender registry after ten to twenty years if they have not committed another serious of violent felony or sex crime. The highest level of offenders, tier three offenders, will remain on the list for life. If certain criteria are met, tier three offenders may petition to be reassigned as a tier two offender. Those who believe they may be eligible to have their tier three sentences reduced should discuss their options with a lawyer who specializes in sex crimes.

Lawmakers understandably streamlined the sex offender registry to make it a more refined law enforcement tool, but failed to measure or justify the purported public safety benefits of keeping the registry open to the public. This is probably because sex offender registries are not evidence-based approaches to deterring sex crimes.

As a criminal lawyer, I appreciate the sense of concern and urgency that has prompted these laws. Promoting public safety by holding offenders accountable and by instituting effective crime prevention measures is a core government function. At the same time, discussion surrounding the passing of Senate Bill No. 384 highlights that the registration laws are overbroad in scope and overlong in duration, requiring people to register who pose no safety risk. In addition, under community notification laws, anyone anywhere can access online sex offender registries for purposes that may have nothing to do with public safety, even though doing so is outlawed in California. Harassment of and violence against registrants have been the predictable result.

California’s next step in reforming our sex offender registry laws should be to assess whether the registry ought to be taken offline. If our state government will not respond to this issue, a constitutional challenge to the online availability of California’s sex offender registry could be fruitful. For instance, Colorado’s sex offender registry was recently challenged in federal court with success.

In Millard v. Rankin, United States District Court Senior Judge Richard P. Matsch, sitting in the District of Colorado, recently found that Colorado’s sex offender registry constituted cruel and unusual punishment in the case of three plaintiffs. The plaintiffs complained that the Colorado sex offender registry’s requirements made it difficult for them to find employment and housing and set them up for harassment long after they served their prison sentences. Judge Matsch held that the sex offender registry violated provisions of the Eighth and Fourteenth Amendments. His Honour stopped short of granting an injunction in the case, only granting declaratory relief, but noted in his judgment that parties did not provide submissions regarding injunctive relief. A case for injunctive relief could reasonably be made in future litigation.

In September 2017, Montrose County in Colorado took its registry offline in response to the judgment. The action was taken despite the ruling’s narrow application to the applicants, showing that the ruling could have far-reaching implications. The possibility that Judge Matsch’s opinion could be applied statewide was no doubt a factor in the Colorado Attorney General’s appeal announcement. The case could go all the way to the United States Supreme Court and allow the Court to make updated rulings on sex offender registries across the country.

It is time for California to prevent unlimited dissemination of registry information by eliminating the state’s online sex offenders registry. Community notification should be undertaken only by law enforcement officers and only about those registrants who pose a significant risk of reoffending. Senate Bill No. 384 is promising because it shows that California lawmakers are willing to apply common sense when making laws pertaining to sex crimes, but now California must scrutinize the online sex offender registry with similar pragmatism and also an eye for civil rights and the importance of reintegrating offenders back into our neighbourhoods.

Attorney Karen L. Goldstein has been successfully defending people against sex crime charges for 14 years.

Call (888) 445-6313 for a free and confidential consultation to speak with an experienced sex crimes lawyer today.

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