PRESS

2015 was a big year for the office.  Kate Hardie successfully secured the release of a man facing a Sexually Violent Predator petition at jury trial.  That client had been in custody for 20 years including prison and state hospital time and the State was attempting to commit him indefinitely as a Sexually Violent Predator based on his molestation priors.  The jury found the petition not true and the client is now with his family after spending 20 years in custody.

Later in the year, Kate secured a dismissal for a man facing four felony counts of battery on a firefighter.  At the preliminary hearing, the case was reduced to a misdemeanor and then dismissed on the date of trial.

A charge of attempted car jacking and three charges of attempted kidnapping were reduced to one count of driving a car without the owners consent in a disposition obtained by Kate in Pomona for an incident caught on videotape.  A shooting into a car in Compton was also settled for time served and no probation during the summer months.

Most recently in January of 2016, Kate secured the release of a man facing 26 years on multiple child molestation and rape charges after a full acquittal on all charges by the jury.  This man had been fighting this case for almost 18 months and waited in jail after one mistrial for discovery violations by the prosecution and one dismissal by another prosecutor who was unwilling to try the case within the time period.  Luckily, the client’s patience paid off and his record is clean and freedom restored.

Smaller resolutions included probation on a felony multi count sex crimes case, dismissal of a misdemeanor speed exhibition case, dismissal of an identity theft case, dismissal of a cocaine sales case on the eve of trial, probation on a residential burglary with person present and priors, and a dismissal of an assault with a deadly weapon and burglary case at preliminary hearing.

A new bill went into effect for the New Year authored by my very own Senator Ted W. Lieu.  This bill seeks  to avoid wrongful convictions from false confessions.  The juvenile brain is not fully developed and is more prone to suggestion and impulse.  Many juveniles have been wrongly convicted because they are coerced into a confession by the police.  This new bill requires the police to videotape a juvenile confession to allow an attorney to better assess whether that confession was coerced or tainted and to help incentivize more ethical police behavior in eliciting confessions.  If a bad confession is videotaped, it will be easier to argue for it to be thrown out if the video tape is available for the Judge to view and verify that what defense counsel argues is truly what happened and not just one biased side of the story.

In my practice, I have seen and heard of countless times when harsh questioning, lies, ruses and false promises are given by the police to induce a confession or admission.  The police will hold an individual for long periods of time and promise to release them if they just “tell the truth.”  This is never the case.  This is not a church confession, you are under arrest and the police are allowed to lie to get what they want.  A confession just makes the State’s case much stronger and leaves fewer options to the defense.  Remember, the police are often ruthless in obtaining these confessions and are older, smarter and have more insight than most juvenile clients.  It is only fair that the law provide safeguards to prevent the conviction of innocents.

See information on the bill here:

http://sd28.senate.ca.gov/news/2013-10-13-gov-brown-signs-bill-help-reduce-false-confessions-juveniles-charged-homicide

 

 

DUI Check points and the Constitution

 

The holidays always bring on overindulgence- in food and alcohol- with the countless office parties, New Year’s soirees and for some just an attempt to cope with stress and family during this demanding time of year.   Many have also probably noticed the increased publicity regarding drunk driving around this time of year as well as an increase in check points.   DUI arrests increase around drinking holidays such as New Year’s Eve, Fourth of July and even smaller days such as Cinco de Mayo (Cinco de Drink-o) and St. Patty’s.

Not only is it dangerous to drink and drive, even if everyone ends up unharmed, a DUI arrest will cost a lot of money and potential employment.   This article is in no way intended to educate people on how to avoid a DUI arrest when driving after drinking; it is simply an exploration of Sobriety Checkpoint law in California.  It never hurts to know your rights, right?

The Constitution (in theory) protects individuals from unreasonable stops, search and seizure.  A DUI checkpoint involves the stop of a car without observing any sort of violation.  How is this ok?

Well, DUI checkpoints are authorized by California Vehicle and Government Code sections in order for California Peace Officers to educate motorists about DUI dangers and deter DUIS by handing out leaflets and not make the purpose of a checkpoint to gather evidence of a crime and make arrests.    Sounds a bit like a façade but this has been tested and case law has held that these check points pass constitutional muster if the meet certain standards.

What are these standards?  These stops are considered administrative stops and only an Officer in charge or command level personnel can approve and organize sobriety checkpoints.  This was established to that inferior officers would not have the power to make arbitrary stops under the guise of a DUI checkpoint.

In addition to authority to set up a check point, there must be “predetermined neutral criteria” in which cars are stopped in the field- it cannot be left to officer discretion.  This means something like “stop every 3rd car.”

A motorist may not be ordered to move to the side or get out of the car unless there is DUI evidence.

The checkpoint must have safe conditions such as lighting, uniformed officers, flashing emergency lights and be visible to drivers from a great distance.

As for the location of the checkpoint and advance notice, it must be at a reasonable location decided by the higher up and a warning sign must be posted early enough to allow motorists to turn off and avoid it.  In addition to this, advance notice time and location of checkpoint is required which is why you see websites posting them.

Most importantly, checkpoint investigations must NOT turn into prolonged detentions or then they are unconstitutional.  The police must conduct these checks quickly and if there are no objective symptoms of DUI, the driver must be sent on his or her merry way.  What are these symptoms?  The obvious: bloodshot, watery eyes, odor of alcohol on the breath, slurred speech.  If it looks like the driver is impaired then the officer may order them to pull to the side and do further investigation and field sobriety tests.

The benefit of a sobriety checkpoint is that it is random and the police need to get through all of the cars.  It isn’t the same as a traffic stop where the officer has already presumably witnessed a traffic violation and might be fishing for more to turn a ticket into arrest.    In a sobriety checkpoint, cars are regularly stopped for short periods of time.  A traffic stop can take much longer if the officer has witnessed an infraction which can already point toward impaired driving.

Be safe out there and remember that cab fare is always cheaper than a DUI- even that wild $357 Uber ride is much smaller than the first time DUI fine which is about $1890 right now when you tack on penalty assessments.

The law of self-defense in the state of California is an affirmative defense.  That means that you can still be charged with the underlying crime, even if it was done in defense of yourself.  Once the crime is charged, it is the defendant’s burden to put on the affirmative defense of self-defense.  A defendant need not prove this defense beyond a reasonable doubt, however, the burden of proof still remains on the prosecution to prove not only that the crime was committed but that it was not committed in self-defense once the issue is raised and the jury instruction is given.  To convict in a crime where someone properly asserts self-defense, the jury must believe BEYOND A REASONABLE DOUBT that the defendant did not act in self-defense.  If there are doubts, the juror must vote for an acquittal.    If a homicide occurs, it is justifiable if done in self-defense.  This means that it was a lawful killing.

 

The defense of self-defense has its roots in common law and people still refer to it as the “Castle Defense.”  I first looked into the roots of the castle defense when I was defending a man accused of slashing his neighbor with a samurai sword while in his own home.  The neighbor had forced his way in and, not surprisingly, alcohol was involved.   A friend of the client kept asking about the “Castle Defense” and insisting my client should automatically “get off.”  Well, that sounds too good to be true, and what was common law in medieval England does not necessarily fly in the Los Angeles Superior Court although some might argue there are many similarities- especially when looking at the plumbing at Clara Shortridge Foltz Criminal Justice Center.  So what is the Castle Defense and what is left of it?

The Castle Doctrine was a principle originating from Roman Civilization and became common law in 17th Century England.  Jurist Sir Edward Coke wrote that “an Englishman’s home is his castle” in The Institutes of the Laws of England, 1628.  This rule was brought to the United States and individual states still have it codified.  This rule of defending one’s castle against intruders precluded civil suits and criminal prosecutions of those who injured or killed trespassers in their homes.   It is separate from the law of self-defense which can be used in a justifiable homicide.

 

California does not have a Castle Doctrine, although some U.S. states such as Louisiana, Illinois and Iowa have legislation that allows for deadly force in one’s home or on one’s property.  Some states even extend this doctrine to any place.  This is the controversial “Stand your ground” law where certain states have laws saying there is no duty to retreat even in a public place.

 

California does have various laws that allow for the defense of self, others and property that can be used to establish self-defense to justify a homicide or other non-deadly assault.

What are those laws and how might they be applied?

This article will address self-defense law when the force used is not deadly, as opposed to the law in justifiable homicide.   That law will be addressed in a later article.

What is the law on the defense of oneself or others?  The answer is that it depends.  What did the defender do?  Did anyone die? Did someone think they or someone else was at risk of death or great bodily injury when they acted in defense?

California Criminal Jury instructions addresses what the law is when someone asserts the defense of self-defense:

3470. Right to Self-Defense or Defense of Another (Non-Homicide)

The defendant is not guilty of (insert the act such as assault with deadly weapon, battery, attempted murder, etc)  if he used force against the other person in lawful (self-defense/ [or] defense of another). The defendant acted in lawful (self-defense/ [or] defense of another) if:

 

This first paragraph addresses when the jury must find an individual not guilty if the force was used in lawful self-defense of one’s self or another.  This means you may defend someone else if lawful.  Say someone attacks your friend and you go attack that person to stop their attack on your friend.  This would be an example.  The instruction goes on to define the mental intent and reasonable belief necessary to use force to defend oneself or another:

1. The defendant reasonably believed that (he/she/ [or] someone else/ [or] <insert name of third party>) was in imminent danger of suffering bodily injury [or was in imminent danger of being touched unlawfully];

2. The defendant reasonably believed that the immediate use of force was necessary to defend against that danger;

AND

3. The defendant used no more force than was reasonably necessary to defend against that danger.

This third element is key and is what the prosecution often uses to argue against a self-defense claim when the force used was great.  The force used needs to be reasonably necessary.  This suggests you can’t bring a grenade to a simple fist fight but really it is not as simple as that.  One might escalate the violence if one reasonably believes it is necessary.  Often it is ok to bring a weapon to a fist fight based on all of the circumstances.  I have successfully litigated cases where a weapon was used to combat force without a weapon and the jury found self-defense.  In one case that was dismissed, a woman was charged with assault with a deadly weapon.  She had used her sharp clear plastic stripper heel to split her boyfriend’s head open.  Clearly a crime, but she had an affirmative defense.  Her boyfriend had a history of abusing her and was much larger.  He had been drinking when he became violent and attacked her.  Photos of the crime scene showed her hair on the floor.  She escalated to using a weapon before him because she feared serious harm would occur and was looking for a way out.  A Judge dismissed this matter at preliminary hearing after hearing from the alleged victim.    This fear must be immediate and in the moment however and CalCrim 3470 elaborates on this:

Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was imminent danger of violence to (himself/ herself/ [or] someone else). Defendant’s belief must have been reasonable and (he/she) must have acted because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the defendant did not act in lawful (self-defense/ [or] defense of another).

If someone threatens future harm and then leaves, even if you truly believe it, you don’t get to go instigate a violent act in response to the threat and claim self-defense.  This fear of harm must exist at the time the force is used.  If you are in a safe place, better to contact the authorities than use force and avoid prosecution.  If someone has threatened future harm, that might even qualify as a criminal threat on their part.

What else can be considered by the jury?  The next paragraph of CalCrim 3470 suggests that other factors known by the defendant might be relevant to determining what was reasonable and what the defendant might have believed:

When deciding whether the defendant’s beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant’s beliefs were reasonable, the danger does not need to have actually existed.

So maybe the threat wasn’t actually real, but the defendant reasonably believed it was.  That is ok.  If the defendant used force in a fight with someone they knew to be violent and knew of their often using force yet in the instant the aggressor wasn’t actually planning to hurt the defendant, they just acted that way, the defendant till might have been reasonable.  If a known violent bully comes running towards you with a scary look on their face, your mistaken belief they will attack, if reasonable is grounds to act in self-defense, even if that bully was really charging the person behind you or playing a joke.

[The defendant’s belief that (he/she/ [or] someone else) was threatened may be reasonable even if (he/she) relied on information that was not true. However, the defendant must actually and reasonably have believed that the information was true.]

Say someone told you the bully after you was violent and had done time for killing someone in a bar fight.  Now this bully is charging you.  You will reasonably be more scared than you would not knowing this.  You act in self-defense and whack the bully with your walking stick.  Then you find out that the bully never killed anyone, just a rumor.  Doesn’t matter if you believed this information and relied on it in making the call the hit the bully.  What else counts?  Prior interactions between the defendant and the victim.  Going back to my dancer case with the shoe, a jury could consider prior violence perpetrated by the “victim” on my client.  As reasonable people, we all make decisions based on our past experiences.  If we regularly experience violence at the hands of someone or see them commit acts of violence, of course we react accordingly.  The law accounts for that:

[If you find that <insert name of victim> threatened or harmed the defendant [or others] in the past, you may consider that information in deciding whether the defendant’s conduct and beliefs were reasonable.]

 

[If you find that the defendant knew that <insert name of victim> had threatened or harmed others in the past, you may consider that information in deciding whether the defendant’s conduct and beliefs were reasonable.]

[Someone who has been threatened or harmed by a person in the past is justified in acting more quickly or taking greater self-defense measures against that person.]

[If you find that the defendant received a threat from someone else that (he/she) reasonably associated with <insert name of victim>, you may consider that threat in deciding whether the defendant was justified in acting in (self-defense/ [or] defense of another).]

Prior acts of violence and threats can be considered in putting on an affirmative defense of self-defense or defense of others.  It is important to document all of these acts or know who might be able to attest to these prior acts or threats to help present a complete picture to a jury or judge.

Just how far can you go?  And if you can run, do you need to?  No, says CalCrim, if the other elements are present:

[A defendant is not required to retreat. He or she is entitled to stand his or her ground and defend himself or herself and, if reasonably necessary, to pursue an assailant until the danger of (death/bodily injury/ <insert crime>) has passed. This is so even if safety could have been achieved by retreating.]

The People have the burden of proving beyond a reasonable doubt that the defendant did not act in lawful (self-defense/ [or] defense of another). If the People have not met this burden, you must find the defendant not guilty of <insert crime(s) charged>.

 

While self- defense is an affirmative defense, meaning an individual will be charged with the underlying act as a crime and then must raise the defense, the Prosecution still has the burden.  Once a claim of self-defense is raised to the point of requiring the jury be instructed, the Prosecution must then prove beyond a reasonable doubt that the accused DID NOT act in self-defense.  It is important to avoid confusion.  The defendant and his or her counsel need not prove to the jury beyond a reasonable doubt that self-defense was used.  Quite the opposite.  If the jury thinks it is reasonable the defendant acted in self defense that is a doubt.  They are required to vote not guilty under California law in this situation.

I have argued self-defense to the jury on multiple occasions.  You can read about one of them here:

http://latimesblogs.latimes.com/lanow/2009/08/stabbing-of-fan-at-dodgers-home-opener-was-selfdefense-jury-rules.html

 

In the People v. Alvarez case, the jury acquitted Mr. Alvarez in a short amount of time of stabbing a man who had punched him and thrown a bottle at his car.  In this case, reasonable force, duty to retreat and defense of property were all at play.  California allows some force to be used to defend property.  Also, one is not required to retreat.  Mr. Alvarez got out of the car because a drunken bully he had been at a Dodger game with threw a beer bottle at his beloved pickup truck.  When he got out to confront the bully for this act of throwing the bottle (acceptable under a defense of property standard), the bully punched him in the face, knocking him to the ground in one blow.  This bully had not only been known to do this to the defendant, he was much larger and prone to fighting when drunk.  The jury found that Mr. Alvarez was justified in using his pocket knife to stab the bully five times while the bully continued to try to fight him, likely not feeling the wounds because of his level of intoxication.  While many people are shocked to find out that someone could bring a knife to a fist-fight, this was the classic example of more force being acceptable because of the beliefs of Mr. Alvarez  coupled with his relative size and having been dropped with one punch and the bully not showing signs he would back down after that.  While some might say they would have stayed in the car, and that is fine, the law does not require this when someone is throwing bottles at your car or acting in such a threatening manner.

 

**None of this article is intended to offer actual legal advice for your situation; every case is different.  This is merely an exploration of California’s self-defense law and how is has been used on past cases to achieve desirable results for my clients.