Category Archives: criminal defense

Can Police Search if They Smell Marijuana?

Can Police Search Me if They Smell Marijuana?

With some exceptions, police may not search a suspect or his/her property solely because they smell marijuana.

Proposition 64, known as the Adult Use of Marijuana Act, was enacted November 9, 2016. It prohibits a search based on legal possession or use of marijuana.

In order to conduct a search, police must have reason to believe the marijuana possession or use is illegal or that the suspect is engaged in some other illegal activity (In Re D.W.).

What Can Police Do if They Smell Marijuana?

Police MAY investigate further based on the smell or issue a notice to appear in court. Below is a discussion of some scenarios where police can arrest a suspect when they smell marijuana.

smell marijuana

Driving Under the Influence

Driving a vehicle while “under the influence” of marijuana is illegal under Vehicle Code Section 23152(f).

Police may arrest the driver if they have probable cause to believe the driver is under the influence of marijuana.

Illegal Marijuana Activity

Police may arrest a suspect if they have probable cause to believe the suspect is illegally using, transporting, cultivating, selling, possessing marijuana, or manufacturing concentrates. See Health & Safety Code Sections:

smell marijuana

Search Incident to Lawful Arrest (“Sila”)

Police may search a suspect who in the process of being arrested or has been placed under arrest.

Police may search a suspect and the suspect’s immediate area for weapons or evidence that can be concealed or destroyed (Chimel v. California).

Probable Cause

Probable cause means law enforcement is aware of facts and circumstances that would lead a reasonable person to believe that the person is guilty of a crime (Brinegar v. United States).

smell marijuana

Probable Cause for Marijuana-related Crimes

Common facts and circumstances used by law enforcement to support probable cause include:

    • Smoke or paraphernalia in car.
    • Smell marijuana smoke on hands or breath.
    • Strong smell of marijuana in vehicle.
    • Appearance and actions of driver.
    • Failed field sobriety test(s) (ok to refuse).
    • Suspect confesses to illegal conduct.
    • Pay/owe sheets, scales, large quantities of money.
    • Driver is sole occupant and/or car full of luggage.

criminal defenseContact

(805) 635-7766
RABLAW805@gmail.com

Prop 47 Case Law Update

What is Prop 47?

Prop 47 makes certain drug and property offenses under $950 a misdemeanor.

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Prop 47 Case Law

Prop 47 was passed on November 4, 2014. Since then, courts have ruled that the following charges should also be misdemeanors:

Proposition 47 Does Not Apply to the Following Charges

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Proposition 47 Applies to the Following Charges:

  • Shoplifting – Penal Code 459 – Shoplifting
  • Forgery – Penal Code 470-476
  • Fraud/Bad Checks of $950 or less – Penal Code 476a
  • Grand Theft of $950 or less – Penal Code 487
  • Petty Theft/Shoplifting of $950 or less – Penal Code 484, 484/666
  • Possession of Methamphetamine – Health & Safety 11377
  • Possession of Controlled Substance – Health & Safety 11350
  • Possession of Concentrated Cannabis – Health and Safety 11357(a)
  • Receiving Stolen Property – Penal Code 496

prop 47

Prop 47 is Retroactive

Proposition 47 applies to cases prior to November 4, 2014. Inmates must file a petition in the county courthouse where they were convicted. The petition forms vary by county and can be accessed here.

criminal defenseContact

(805) 635-7766
RABLAW805@gmail.com

 

SCR 48: Resolution to Reform Felony Murder Rule

SCR 48 – Senate Concurrent Resolution

SCR 48 is a senate concurrent resolution passed on September 22, 2017. It recognized the need for statutory reform to more equitably sentence offenders according to their involvement in the crime.

Although SCR 48 did not make any changes to existing law, it laid the foundation for Senate Bill 1437 – Accomplice Liability for Felony Murder.

Senate Bill 1437 is making its first pass through the California state legislature. After the Committee on Public Safety approved the bill by a vote of 6-1, it was referred to the Senate Appropriations Committee. A meeting before the Appropriations Committee is currently set for May 7, 2018.

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SCR 48 – Punishment Should Match the Crime

Currently there are 2 laws – felony murder and aiding and abetting – that impose a punishment that is disproportionate to the criminal activity. SCR 48 recognizes that it is fundamentally unfair and in violation of basic principles of individual culpability to punish a person for the unforeseen results of another’s action.

SCR 48 – Overcrowded Prisons are Expensive

According to SCR 48, California continues to house inmates in numbers well beyond its maximum capacity at an average of 130% of capacity. WASCO, for example, is 2,000 inmates over the designed maximum capacity. Incarceration of an inmate in California costs taxpayers $70,836 per year. There are currently approximately 118,000 inmates incarcerated in California.

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Malice

“Malice” is a deliberate unlawful intention to take away the life of another. Malice is required for a conviction for first or second degree murder, except in the case of felony murder.

Felony Murder

Under felony-murder, a defendant does not have to intend to kill anyone, nor commit the homicidal act, to be sentenced to first-degree murder. A defendant can be sentenced to first-degree murder even if the killing was unintentional, accidental, or negligent.

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First-Degree Felony Murder

A conviction for first-degree murder results in a sentence of 25 years to life.

To be convicted of first-degree felony murder, the prosecutor only needs to prove that the killing was committed in the perpetration or attempt to perpetrate a felony specified in Penal Code Section 189.

Those felonies are arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, torture, sodomy, lewd act on a child under 14, oral copulation, and rape by instrument.

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Second-Degree Felony Murder

A conviction for second-degree murder results in a sentence of 15 years to life.

To be convicted of second-degree felony, the prosecutor only needs to prove that the killing was committed in the perpetration or attempt to perpetrate an “inherently dangerous felony.”

Inherently dangerous felonies include but are not limited to discharging a firearm at an inhabited dwelling, manufacturing methamphetamine, maliciously burning a car, and possessing a bomb in a residential area.

criminal defenseContact

(805) 635-7766
RABLAW805@gmail.com

Using Penal Code 1473 To Remove Past Convictions

Withdrawal Of Plea Using Penal Code 1473

Penal Code 1473.7 allows a person no longer imprisoned to vacate a conviction or a sentence. Undocumented person who are in danger of deportation may file a motion in order to clear their record of criminal convictions.

If the conviction is overturned, the criminal case starts again. Undocumented defendants will face the original criminal charges and will need to fight the case or enter a plea that does not have immigration consequences.

penal code 1473.7

Reasons To Withdraw A Plea

Under Penal Code 1473.7, there are 2 reasons to withdraw a guilty plea:

  1. If there was a prejudicial error during proceedings that damaged the person’s ability to meaningfully understand, defend, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere; or
  2. New evidence of innocence exists and requires the withdrawal of a plea.

Failure to Understand Immigration Consequences

If the prosecution opposes the Penal Code 1473.7 motion, they will need to provide evidence that the defendant understood the immigration consequences at the entry of plea. This evidence may include a signed waiver of constitutional rights, a probation or sentencing order, a transcript or recording of the entry of plea, and declarations or testimony from witnesses.

penal code 1473.7

Incompetent Counsel

A plea entered after January 1, 2017 can be withdrawn due to ineffective assistance of counsel. To do so it must be shown:

    1. That counsel’s performance was deficient in that it fell below an objective standard of reasonableness; and
    2. That he or she was prejudiced by that deficient performance

A plea entered before January 1, 2017 can only be withdrawn if the defendant asks his or her attorney about the immigration consequences of a plea and is given incorrect immigration advice. (People v. Landaverde).

When To File A Motion Under Penal Code 1473.7

The motion cannot be filed until:

  • The party receives a notice to appear in immigration authorities that asserts the conviction or sentence as the basis for removal.
  • The date a removal order based on the conviction or sentence becomes final.

The motion shall be filed with reasonable diligence after the later of the above dates.

The motion must also be filed without undue delay from the date the moving party discovered or could have discovered the evidence that provides the reason for the withdrawal of the plea.

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After Filing The Motion

The court clerk provides a hearing date when the motion is filed. At the hearing the Judge will decide whether or not to overturn the conviction. If the conviction is reversed, the defendant still faces criminal charges and will need to enter a plea or fight the case.

Entering An Immigration-Neutral Plea

In order to avoid deportation, a non-citizen defendant must enter a plea that does not have immigration consequences. One option is to plead to a charge or charges that are immigration-neutral but give the court and prosecution equivalent convictions and sentences.

criminal defenseContact

(805) 635-7766
RABLAW805@gmail.com

California Becomes A Sanctuary State

California Becomes A “Sanctuary State”

On October 5, 2017, Governor Jerry Brown signed the California Values Act. The “sanctuary state” law aims to protect California’s 2.3 million undocumented citizens from federal immigration authorities (ICE).

sanctuary state

Currently local authorities may release inmate information, including citizenship status, to federal immigration authorities. When the law becomes effective on January 1st, 2018, ICE will no longer be notified when undocumented immigrants are released from jail.

When Does The Sanctuary State Law Start?

The sanctuary state law is set to go into effect on January 1, 2018. If the Trump administration, which opposes the law, challenges the law in federal court, the start date of the law could be delayed until the conclusion of court proceedings.

sanctuary state

What Changes?

The California Values Act does not prevent ICE from looking for people without documentation or executing search warrants for non-citizens. The law does ban state and local agencies, excluding the California Department of Corrections and Rehabilitation, from enforcing “holds” on people in prison custody.

The act blocks the deputization of police as immigration agents and bars state and local law enforcement agencies from asking about immigration status. It also prohibits new or expanded contracts with federal agencies to use California law enforcement facilities as detention centers.

sanctuary state

California Responds To Trump Administration

State and local governments are locked in a battle with Attorney General Jeff Sessions over Sessions’ move to slash federal grant funding from “sanctuary jurisdictions.” A number of California cities have become sanctuary cities or cut ties with immigration authorities, including San Francisco and Los Angeles.

Proponents of the law argue that it makes immigrant communities safer by encouraging trust, cooperation and communication between immigrants and local authorities. Research has shown sanctuary cities have lower crime rates and that immigrants commit fewer crimes than U.S. citizens.

The Trump administration has tried to draw a link between undocumented immigrants and increases in violent crimes.

sanctuary state

Santa Barbara County Sheriff

Santa Barbara Sheriff Bill Brown, president of the California State Sheriff’s Association, opposed the California Values Act. Brown says people will be victimized as a result of the new law.

criminal defenseContact

(805) 635-7766
RABLAW805@gmail.com

Proposition 47 Early Release From Prison

Proposition 47 – Reducing Charges

Proposition 47 reduces the punishment for certain felony drug and property offense charges under $950 to a misdemeanor. It does not apply to registered sex offenders and people with prior convictions for serious or violent crimes.

Re-sentencing For Inmates

Prop 47 permits re-sentencing for people currently serving a prison sentence, or with prior felony convictions. Charges eligible to be reduced to misdemeanors are listed below.

Proposition 47

Must File A Petition

No one is automatically released from prison under Proposition 47. Instead you must petition the court to reduce your charges and re-sentence you.

Eligible inmates who petition the court are required to be resentenced unless the court finds an unreasonable risk to public safety.

Risk To Public Safety

When determining the risk to public safety, the court may consider the offender’s criminal history, the types of crimes committed and when they occurred, the extent of injury to victims, the length of prior prison commitments, the inmate’s disciplinary and rehabilitation records while incarcerated, and any other relevant evidence.

What Is The Deadline To Petition?

Your petition must be filed with the court before November 4, 2022.

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How Do I File A Petition?

Under Prop 47, in order to petition for a reduction of a crime to a misdemeanor, you must first obtain a copy of your criminal record. Next, you must obtain a petition form for reclassification. Most counties have created petition forms that can be found here.

For counties that have not created petition forms, contact the local courthouse and ask which form to use.

Once the petition is complete, send one copy to the District Attorney’s Office in the county where you were convicted. The other copy is sent to the Superior Court in the county where you were convicted.

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Proposition 47 Applies To The Following Charges:

  • Shoplifting – Penal Code 459 – Shoplifting
  • Forgery – Penal Code 470-476
  • Fraud/Bad Checks of $950 or less – Penal Code 476a
  • Grand Theft of $950 or less – Penal Code 487
  • Petty Theft/Shoplifting of $950 or less – Penal Code 484, 484/666
  • Possession of Methamphetamine – Health & Safety 11377
  • Possession of Controlled Substance – Health & Safety 11350
  • Possession of Concentrated Cannabis – Health and Safety 11357(a)
  • Receiving Stolen Property – Penal Code 496
  • Embezzlement of $950 or less – Penal Code 503 (People v. Warmington)
  • Joyriding of a vehicle worth $950 or less – Vehicle Code 10851 (People v. Page)
  • Attempting to cash a check worth $950 or less – Penal Code 459.5 (People v. Gonzales)
  • Theft of Account Information of $950 or less – Penal Code 484e(d) (People v. Romanowski)

criminal defenseContact

(805) 635-7766
RABLAW805@gmail.com