Posts Tagged ‘san diego criminal lawyer’

Juvenile adjudications (convictions) can be used against adult criminal defendants under the “three strikes” law even though juvenile defendants have no right to a jury trial. The California Supreme Court, in People v Nguyen, held that prior juvenile adjudications that qualify as serious or violent felonies (”strikes”) can used to substantially increase an adult criminal defendant’s felony sentence, despite the fact that juveniles are not entitled to a trial by jury. 

In Nguyen, the Court emphasized that a defendant is still free to contest the fact of a prior conviction in the adult case, and, of course, a defendant can always challenge whether the juvenile adjudication actually qualifies as a serious or violent felony offense. Juvenile cases from outside of California are example of those types of cases often subject to successful challenge on the issue of whether they qualify as a strike offense.  But for now, criminal defense attorneys can no longer successfully raise 5th 6th and 14th Amendment objections against the use of the juvenile case as a strike solely due to the lack of a jury trial right in juvenile court. 

The California Supreme Court may get overruled on this issue by the U.S. Supreme Court.  Criminal defense lawyers therefore must continue to object to the use of juvenile offense as strikes in order to preserve this issue for appeal, especially for criminal defendants looking at a life sentence.

No CommentsTags: adult criminal convictions, attorney, California Supreme Court, criminal defendant, criminal defense, criminal defense lawyer, felony, jury trial, juvenile, juvenile adjudication, juvenile strike, People v. Nguyen, prior conviction, san diego criminal defense attorney, san diego criminal lawyer, sentence, three strikes, U.S. Supreme CourtRead More

In serious drug prosecutions, criminal defense lawyers cannot blindly trust police crime lab reports supposedly confirming that a substance is really cocaine, methamphetamine, marijuana, or heroin.  For that matter, anything coming out of the crime lab, such as blood toxicology results, DNA results and chain-of custody receipts should not be blindly trusted, either. The United States Supreme Court , in Melendez-Diaz v. Massachusetts, recently confirmed that crime  lab reports are so important that the analyst that prepared the report and did the testing must be called as a witness and subjected to cross examination by the defense attorney for the results to be used as evidence. The Court held that the Confrontation Clause of the Sixth Amendment of Constitution guarantees this right to defendants seeking to challenge crime lab results. The Court was concerned with the possibility that the report could have been faked or the test may not have been completed properly, and cross examination is the best vehicle for proving problems with the report.

Indeed, here in San Diego, I have recently come into possession of material indicating that a lab analyst who formerly produced reports that were regularly relied upon by San Diego prosecutors, committed perjury while working at another job by faking lab reports and results of confirmatory lab tests. (In crime labs, the presumptive test alone is not valid to conclude the actual presence of the controlled substance; a more reliable, confirmatory test is needed). The information showed that 1000’s of tests were faked.  These false lab reports of drug results are clearly relevant to proving that his work product – in fact anything he touched – cannot be trusted. In many drug cases, the alleged controlled substance may be available for retesting or the defense may conduct their own tests. The defense lawyer should also consider a complete review of the chain-of-custody for each and every lab item sought to be used by the prosecutor.  

The lesson a bad lab analyst imparts only reinforces what every good defense lawyers knows: don’t assume that any piece of evidence is infallible.

Contact us for help with your case, (619) 232-5122, or  info@attorneylombardo.com.

No CommentsTags: analyst, chain-of custody, cocaine, confirmatory lab tests, confirmatory test, Confrontation Clause of the Sixth Amendment, controlled substance, crime lab, criminal defense lawyer, criminal lawyer, cross examination, Domenic J. Lombardo, Drug Cases, drug prosecutions, false lab report, heroin, lab report, lab reports, law enforcement, marijuana, Melendez-Diaz v. Massachusetts, methamphetamine, perjury, presumptive test, san diego criminal defense attorney, san diego criminal lawyer, San Diego Police Crime lab, San Diego prosecutorsRead More

Harvard professor Henry Louis Gates Jr., an African-American scholar, was recently arrested at his residence by Cambridge police officer Sergeant Crowley who was investigating a reported break-in. Professor Gates was arrested after he yelled at the investigating officer repeatedly from inside the residence. He showed identification and then reportedly resisted a demand to step onto the porch. He did eventually follow the officer outside, where Gates continued to upbraid the officer. “It was at that time that I informed Professor Gates that he was under arrest,” the officer wrote in the report.

Law enforcement offices throughout the country no doubt sympathize with the officer’s plight in this situation. The officer thought he was going to get a “thank you” and Professor Gates thought he was a suspect because of his race. So if this case occurred in San Diego County,  under California law, on these same facts, who was acting unlawfully: Professor Gates or the police officer? This is a routine type of question for criminal defense lawyers. San Diego criminal attorneys routinely defend cases that begin with an officer’s claim that the defendant was not cooperating while they lawfully preformed their duties.

While it is not unlawful to yell at a police officer in anger for a perceived wrong such as racial profiling, it is unlawful under California law, to willfully resist, delay, or obstruct a sworn law enforcement office, or an emergency medical technician, in the discharge or attempt to discharge any duty of his or her office or employment. This provision is commonly referred to as “resisting arrest.” Some law enforcement officers no doubt justify arrests under this provision for those that “flunk the attitude” test. Conviction of misdemeanor resisting arrest carries a fine not exceeding one thousand dollars ($1,000), or imprisonment in a county jail not to exceed one year.

Professor Gates may correctly argue, however, that for a resisting arrest conviction to be valid, a criminal defendant must have resisted, delayed, or obstructed a police officer in the lawful exercise of his duties. In California, the lawfulness of the officer’s conduct is an essential element of the offense of resisting, delaying, or obstructing a peace officer. If the officer was not performing his or her duties at the time of the arrest, the arrest is unlawful and the arrestee cannot be convicted under Penal Code section 148 (a)(1)(resisting arrest). Excessive force used by a police officer at the time of the arrest is not within the performance of the officer’s duty. An arrest made with excessive force is therefore unlawful. It is a public offense for a peace officer to use unreasonable and excessive force in effecting an arrest. Professor Gates would claim that after he showed his identification the officer’s duties ended and the excessive force began.

Arresting officer Crowley, on the other hand, may correctly argue that “the time of the arrest” does not include previous stages of law enforcement activities that might or might not lead to an arrest, such as conducting an investigation; it includes only the time during which the arrest is being effected. A conviction for resisting arrest under 148(a)(1) may be lawfully obtained only if the officers do not use excessive force in the course of making that arrest. A conviction based on conduct that occurred before the officers commence the process of arresting the defendant is not necessarily rendered invalid by the officers’ subsequent use of excessive force in making the arrest. For example, the officers do not act unlawfully when they perform investigative duties a defendant seeks to obstruct, but only afterwards when they employ excessive force in making the arrest. Similarly, excessive force used after a defendant has been arrested may properly be the subject of a Civil Rights lawsuit action notwithstanding the defendant’s conviction on a charge of resisting an arrest that was itself lawfully conducted. Sergeant Crowley would thus contend that the professor delayed and obstructed a lawful investigation by failing to cooperate before the arrest outside on the porch.

In any event, no matter who has the best legal argument, any criminal defense lawyer knows that a jury will apply a common sense approach to evaluating the conduct of both of the parties. Clearly, in this case, Professor Gates would not be convicted by a jury of his hypothetical California peers, whether he is absolutely right on the law or not.  And, as California juries are historically reluctant to side against cops, Officer Crowley would also likely escape any claim for money damges based upon a Civil Rights violation.

Contact us to help with your case, (619) 232-5122, or  info@attorneylombardo.com.

No CommentsTags: 148(a)(1), California law, criminal defense lawyer, delaying and officer, Domenic J. Lombardo, excessive force, law enforcement, misdemeanor resisting arrest, obstucting an officer, police officer, Professor Gates, san diego criminal defense attorney, san diego criminal lawyer, Sergeant Crawley, unlawful forceRead More

The most commonly prosecuted theft offenses involve the alleged taking of property from a retail merchant. Often the dollar value of the items is relatively small and the accused has no prior criminal record. Yet a conviction for petty theft is a serious matter. The law requires at least one day in jail, a “book and release” that can take as long as 20 hours to accomplish, a fine and possibly a theft counseling class for another 8 hours. The maximum sentence is up to 6 months in jail and a $2,000.00 fine. And the stigma from a petty theft conviction is difficult to overcome. Employers are understandably reluctant to hire a convicted thief.

San Diego Criminal defense attorneys often negotiate lesser offenses in these cases -especially to avoid jail – but the possible availability of a Civil Compromise is rarely explored.

In fact, in many other matters where a person is charged with a misdemeanor and the misdemeanor resulted in a victim incurring financial loss, the defendant’s charge may be dismissed through the process of civil compromise. Charges of minor vandalism, hit and run and theft are common examples of violations where a civil compromise may be appropriate.  While the result of a successful civil compromise is generally very advantageous for criminal defendants, as it results in a complete dismissal of the charges, it can be a tricky procedure to negotiate.

Civil compromises are subject to several statutory limitations.  For example, a civil compromise is not permissible when a misdemeanor is committed riotously or with the intent to commit a felony. Compromise is no longer available in domestic violence matters, violations of a court order, or crimes against elders or against children.  If none of the limitations apply, the alleged victim must then be “satisfied” for the injury they have suffered. This usually involves the payment of money, which can be problematic for an inexperienced attorney or a defendant without representation, especially considering that communicating the wrong message to a victim can be viewed as witness intimidation.  Once the alleged victim is “satisfied” for their loss, the Judge has the power to dismiss the case even over the objection of the Prosecutor. 

Regardless of these obstacles, in the 18 years that I have been practicing as a criminal defense attorney and negotiating civil compromises, it has been my experience that most people are willing to eventually agree to a civil compromise simply because it is the right thing to do in many theft-related situations. Retailers are more difficult: the store’s attorney must be convinced that the matter is atypical because of some special circumstances involving the alleged offense or the defendant.  A successful result requires an advocate who can explain why this option is in the best interest of the alleged victim, the court and the defendant, and if you are facing theft charges a competent attorney must explore this option.

We have obtained dismissal by compromise in many cases this year alone. Contact us to help with your case, (619) 232-5122, or  info@attorneylombardo.com.

No CommentsTags: book and release, case dismissed, civil compromise, clear a criminal record, criminal defense lawyer, criminal lawyer, defense lawyer, felony theft, misdemeanor theft, petty theft, san diego criminal defense attorney, san diego criminal lawyer, theft, theft crimes, vandalismRead More

False confessions undeniably lead to the convictions of innocent suspects. Despite this harsh reality, we now have an appellate court decision reaffirming the principle that law enforcement can be trusted to use deception in order to obtain a suspects confession. However, San Diego Criminal lawyers remember well the lessons derived from the Richard Tuite case. Tuite was convicted in the stabbing death of 12-years old Stephanie Crowe while she lay asleep in bed. Stephanie’s brother and his two friends were initially charged with the killing after aggressive interrogation lead to incriminating statements. The boys were inconveniently innocent. Their statements were later thrown out by the court after an analysis of law enforcement interrogation techniques, including the infamous use of Detective McDonough’s ”lie detector machine.” Law enforcement lied to the boys about the validity of the machine and the results in order to break down their free-will and obtain a statement. Tuite, who was questioned in the killing right from the beginning, was dismissed as a suspect as the cops focused on the boys.  The lies were only part of the problem- but a major problem – with the reliability of the statements. The boys were kept from their parents, interrogated for hours non-stop, and every effort was made to undermine their wishes to cease the interview.

 Recently in the case of People v. Mays a California appellate court found that incriminating statements made by a criminal defendant were voluntary and admissible even considering that the police lied in obtaining the statement by showing the defendant falsified results of a police conducted polygraph test.  Specifically, the detectives were attempting to establish that a suspect was at the scene of the crime.  “[T]he police placed on [the suspects] body patches connected to wires, pretended to administer a lie detector test, fabricated written test results, showed defendant the fake results, and told him the results showed he failed the test.  The detective suggested that perhaps defendant failed because he was present during the crime and felt some guilt about that. Defendant then admitted he was present at the shooting.”   The trial court permitted evidence of this admission, and on appeal the court found “no grounds for reversal.”

Generally, when a confession is coerced by police actions, it is considered an involuntary statement and is therefore inadmissible in court.  But, can the police lie to a suspect and engage in trickery without their action being considered coercion?  Many courts have held that police trickery that occurs in the process of a criminal interrogation does not, by itself, render a confession involuntary.  While the extent of the deception employed by the police in the Mays case is abnormal, it is not uncommon for the police to lie to a suspect in an attempt to further an investigation.  Mays is simply another cautionary example of how far the police are willing and permitted to push the envelope. A good criminal attorney can possibly demonstrate how lies helped render a confession involntary.

Contact us to help with your case, (619) 232-5122, or  info@attorneylombardo.com.

No CommentsTags: coerced statement, confession, detective, interrogation, involuntary confession, lie detector, people v. mayes, police lies, richard tuite, san diego criminal defense attorney, san diego criminal lawyer, stephanie croweRead More