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Category: Violent Crimes

New Ninth Circuit ruling paves way for defense lawyers to argue that prior felony convictions for robbery under California statute should not be treated as “crimes of violence”

Posted By admin 2018-06-11 04:51:01

The Federal Sentencing Guidelines are rules that set out a uniform sentencing policy for individuals and organizations convicted of felonies and serious misdemeanors under the United States federal courts system. The Guidelines determine sentences based primarily on two factors: (1) the conduct associated with the offense; and (2) the defendant’s criminal history. I spend a considerable amount of time on each of my federal cases strategizing how to arrive at the most favorable sentence for my clients under the Guidelines. The Guidelines involve a complex series of rules, and it is important for defense lawyers to stay on top of how federal courts interpret controversial areas of these rules.

Thankfully, the Ninth Circuit provided helpful guidance for the defense this past week on cases involving prior felony convictions for robbery. Under the Guidelines, the base offense level for offences can vary depending on whether the defendant has one or more prior felony convictions for a “crime of violence.” The Guidelines define the term “crime of violence” as any offense under federal or state law, punishable for a term exceeding one year, that either: (1) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (2) falls within certain enumerated violent offences.

In Edling, the Ninth Circuit found that the district court erred in treating the appellant’s previous robbery and coercion convictions under Nevada law as a crimes of violence. Accordingly, it vacated a sentence for being a felon in possession of a firearm and remanded for resentencing.

In essence, the Ninth Circuit ruled that robbery, under Nevada law, is not a crime of violence because it can be accomplished by instilling fear or injury to property alone. The panel found that Nevada’s robbery statute sweeps more broadly than the Guidelines’ definition of a crime of violence, which requires physical force against a person. The panel further found that the robbery under Nevada law is unlike generic robbery, listed as an enumerated offence clause for crimes of violence, because generic robbery requires danger to the person, not merely danger to property. Similarly, the panel concluded that the new Guideline definition of extortion, also listed as an enumerated offence in the crimes of violence clause, does not include a threat to property.

I view the Edling decision as an exciting win for California, especially for federal clients with prior felony convictions for robbery under California statute. The Edling holding on robbery under Nevada law will likely control the question for robbery prior convictions under California law. The Ninth Circuit has previously ruled in a few cases that Nevada’s robbery statute is materially indistinguishable from California’s robbery statute. Accordingly, the Ninth Circuit should rule in future cases that robbery, under California law, is not a crime of violence. Going forward, defense lawyers should fight against any prosecutor’s claim that robbery in California is a crime of violence.

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The Golden State Killer Investigation Raises Genetic Privacy Concerns In the Criminal Law Context

Posted By admin 2018-04-29 00:52:43

New technologies are radically advancing our freedoms, but they are also enabling unparalleled invasions of privacy. This week’s arrest of the Golden State Killer suspect, Joseph DeAngelo, has rightfully set off alarms among some scientists and ethicists worried that consumer DNA may be widely accessed by law enforcement. Detectives in California used a public genealogy database to identify the suspect, raising serious concerns about genetic privacy. As a criminal defense attorney practicing in Los Angeles, I am especially concerned about how law enforcement uses consumer DNA to bypass Fourth Amendment protections.

Investigators retained DNA evidence from the Golden State Killer’s crime scenes, but they were not able to match it to any of the convicts’ and arrestees’ DNA profiles stored in the FBI’s Combined DNA Index System. As a workaround, police decided to take advantage of the fact the millions of Americans have had their genetic information tested by various commercial companies, often as part of their personal genealogical research.

The police reportedly drew on the open-source GEDmatch service, which does not test DNA but allows users searching for relatives to them to upload the results of such tests from other companies. Apparently, a relative of DeAngelo had submitted test results to GEDmatch. This familial genetic link led the police to suspect DeAngelo. The police directly connected DeAngelo to the murders and rapes by matching old crime scene DNA to his obtained from some items he had recently discarded in public.

This is not the first case where ancestry DNA testing has been used to identify a suspect. Another case illustrates how the use of such DNA evidence can lead to false accusations. In 2015, after DNA evidence exonerated an innocent suspect in a 1998 murder, police in Idaho Falls combined Ancestry.com records for close matches to DNA at the crime scene, landing on a man named Michael Usry who matched 34 of 35 genetic markers on the Y-chromosome that belonged to the killer. Police wound up arresting Usry’s son, whose name was only cleared after 33 days when another DNA test found to not match his DNA. The privacy repercussions, including false accusations and even wrongful convictions, are troubling.

Such methods of criminal investigation are bound to only become more prevalent as the sizes of companies’ DNA databases grow. Some laws protect against abuses of genetic privacy, but none of those prevent law enforcement from combing through public DNA databases. Many courts have ruled, citing cases involving photographs and fingerprints, that we do not have a reasonable expectation of privacy under the Fourth Amendment in DNA that we leave in public.

Still, the case brings forefront several important issues in genetic privacy. As Tiffany Li, a tech lawyer and resident fellow at the Yale Information Society Project, tweeted in response to the Golden State Killer news, “Reminder: When you give your DNA data to companies like Ancestry.com or 23andMe, you give up not only your own genetic privacy, but that of your entire family.” And while law enforcement may not be able to get its hands on your Ancestry data easily, for example, certain types of insurers could, as could hackers. While some members of the public have expressed that they are fine with giving up their family DNA data to catch a serial killer, this rationale has a slippery slope effect, and can justify almost any invasion of privacy, including facial recognition and iPhone backdoors.

Ultimately, police use of non-criminal genetics databases illustrates the need for standards for genealogical searches in relation to crimes. In the Idaho Falls case, for example, if investigators had used a DNA test that looked at a smaller number of genetic markers, which some crime labs do, Usry might have wound up matching the DNA even though he was innocent. Guidelines for when police may turn to genealogical searches and the quality of DNA evidence they use could help protect innocent people from false accusations and even wrongful convictions.

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U.S. Supreme Court Finds that a Crime-based Removal Provision is Unconstitutionally Vague

Posted By admin 2018-04-23 01:30:28

In California, defense lawyers have a legal and ethical duty to advise clients on their criminal cases’ immigration consequences. This duty is extremely important because a criminal conviction can result in deportation, even for an immigrant who has lived and worked legally in the United States for decades. In light of the Trump administration’s emphasis on the removal of “criminal aliens,” we are seeing an increase in litigation of criminal removal cases, and gaining clarity in this complex area of the law.

As a criminal defense lawyer working in Los Angeles, I represent many clients whose immigration status is threatened by their criminal charges. This is why I am passionate about following developments in criminal-removal cases, and am particularly excited about a U.S. Supreme Court case decided this week called Sessions v. Dimaya. The Dimaya case involved a constitutional challenge to a criminal-removal provision in the immigration laws, which historically have been almost wholly immune from judicial review.

The defendant, James Dimaya, challenged the constitutionality of a provision in the Immigration and Nationality Act (INA) allowing for deportation for aggravated felonies involving “crimes of violence.” An immigrant convicted of an “aggravated felony” under 8 U.S.C. §1101(a)(43) is subject to mandatory removal and is ineligible for most forms of relief from removal. The definition of “aggravated felony” incorporates by reference 18 U.S.C. §16(b). Section 16(b) defines a “crime of violence” to encompass “any … offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” What constitutes a felony involving a “crime of violence” is a murky legal issue that courts have interpreted differently. The result is an unpredictable and counterintuitive body of law.

For example, Mr. Dimaya,had two residential burglary convictions, neither of which involved violence. He was charged under California statute, which defines residential burglary so broadly that it could cover dishonest door-to-door salespeople.

Is a burglary a “crime of violence” when it need not entail any actual violence? Immigration judges held that it was, and that Dimaya’s convictions fell within the “residual clause” of the definition of a violent crime. This allowed Mr. Dimaya’s deportation to move forward. Mr. Dimaya appealed, challenging the constitutionality of this “residual clause.” He argued that the provision is too vague to comport with the Due Process Clause, which guarantees that ordinary people have fair notice of the conduct a law prohibits. The 9th U.S. Circuit Court of Appeals agreed, holding that the residual clause violated due process.

The U.S. Supreme Court affirmed the 9th Circuit’s ruling that Section 16(b) is unconstitutionally vague. The Court noted that to determine whether a person’s conduct falls within the ambit of Section 16(b), “courts use a distinctive form of what we have called the categorical approach.” Rather than assessing whether the particular facts of someone’s conduct pose the substantial risk required under the statute, courts consider the overall nature of the offense, and ask “whether ‘the ordinary case’ of an offense poses the requisite risk.” Defining the “ordinary case” under the “crime of violence” provision poses vagueness and due process problems, including unpredictability and arbitrariness. Mr. Dimaya’s case is illustrative. It defies logic that Mr. Dimaya could be deported for committing a so-called “crime of violence” when the crimes he was convicted of involved no violence.

The Court’s finding that this residual clause deprives immigrants of fair notice as to what qualifies as a “crime of violence” will create more uniform, predicable law. In reaching its decision, the Court pointed to judicial disagreement over what crimes count: Some federal appeals courts have found that car burglary, statutory rape, evading arrest, residential trespass, unauthorized use of a vehicle, stalking, and firearms possessions are crimes of violence. Other appeals courts have reached opposite conclusions. This made it difficult to provide concrete legal advice to clients on how certain outcomes to their criminal cases could affect their immigration status.

Sessions v. Dimaya is beneficial to non-United States citizens who are facing felony charges in the United States for non-violent acts. Such individuals should seek representation from a criminal lawyer who is well-versed in the recent changes to criminal removal case law.

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Skinner’s Bill Could Help the Defense Prove Police Misconduct

Posted By admin 2018-04-02 16:09:28

As an experienced criminal defense attorney practising in Los Angeles, I have won numerous cases by showing that the police acted unlawfully. A key obstacle I tackle when defending such cases is to obtain information about police officers’ prior acts of professional misconduct. Obtaining officer personnel records, which document prior misconduct, is hard-fought but could be made easier by proposed changes to California law.

A Pitchess motion is a request made by the defense in a California criminal case, such as a DUI or resisting arrest case, to access a police officer’s personnel information. Types of police misconduct that could support a Pitchess motion include excessive force, lying about events surrounding the arrest, racial profiling, and coerced confessions.

The defense files a Pitchess motion by alleging an officer’s misconduct in an affidavit to show “good cause” for disclosure of the officer’s records. A showing of ‘good cause’ exists if the affidavit sets forth both a specific factual scenario that supports allegations of officer misconduct in the defendant’s case, and reasons why the misconduct would be material to the defense case. This can be a difficult threshold for the defense to meet. Laying the factual foundation for a Pitchess motion typically demands investigatory resources, and sometimes no evidence exists to corroborate a defendant’s truthful allegations of police misconduct.

If a court grants the Pitchess motion, the information provided to the defense will include the officer’s prior incidents of use of force, allegations of excessive force, citizen complaints, and information gathered during the officer’s pre-employment background investigation.

Thankfully, legislative change could be on the horizon in California and make it easier for the defense to access officer personnel files. State Sen. Nancy Skinner (D-Berkeley) plans to introduce a bill next week that would require the disclosure of investigations of serious uses of force, including police shootings. Currently, the public is completely shut out of the disciplinary process. Besides opening access to use of force investigations, Skinner’s proposed bill would also require the disclosure of confirmed cases of sexual assault and lying while on duty. Public disclosure of police conduct would likely make it easier for defense counsel to obtain some information sought in a Pitchess motion, as well as information that would help lay the factual foundation for a successful Pitchess motion.

California currently has some of the most stringent laws in the United States against disclosing police personnel records. Most information about discipline is presumed confidential, even when complaints are determined to be valid.

The proposed legislative changes would benefit members of the public beyond defendants in criminal cases. Under current law, the Sacramento Police Department investigation of its officers for the fatal shooting of Stephon Clark earlier this month will not become public except through any potential criminal prosecution of the officers or civil litigation against the city. Mr. Clark, a 22-year-old unarmed black man, was fatally shot earlier this month by Sacramento police in his grandmother’s backyard. Discrepancies between the shooting officers’ version of events and a family-funded autopsy of Mr. Clark highlight the importance of the public serving as a watchdog on police misconduct. The autopsy found on Friday that Mr. Clark was shot eight times in his back, contradicting the shooting officers’ assertions that Mr. Clark was advancing toward them as a threat. Seven of those shots were of fatal capacity, the autopsy showed.

Making investigations of police misconduct transparent to the public will help the defense and public check unlawful police acts, which unfortunately are still common today in criminal cases and the broader community.

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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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