Monder Law Group - News

Understanding The LeBron James Vandalism Hate Crime

LeBron James is a world renowned athlete that plays for the Cleveland Cavaliers is the NBA. Mr. James has won multiple NBA Finals and set numerous individual records. He is currently playing in the NBA Finals once more. Mr. James fame and popularity may be tied to the incident that took place at his Los Angeles home this past week. Someone spray painted the N word across Mr. James gate, which is the entrance to his $21 million-dollar home in the Brentwood neighborhood. The police are checking security cameras at the home and neighboring homes to see if they can get any leads to assist them in their investigation. LeBron James was not home when the vandalism took place.

This would obviously be a crime, but how serious of a crime would it be, and which crimes? It would seem as if the person who did this would be facing a vandalism charge. In addition, this could also possibly be a hate crime, which would increase or aggravate the seriousness of this crime.  We will analyze the crimes to see what the perpetrator may be facing when they are charged for their actions.

When we are looking at vandalism the first element is that you maliciously “defaced with graffiti or other inscribed material,” damaged, or destroyed property. The second element is, that you did not own the property or owned it with someone else. The last element is the amount of the defacement, damage or destruction was either a. less than $400 in a misdemeanor prosecution or b. $400 or more in a felony prosecution. Cal. Penal Code Ann. § 594. All three of elements must be meant in order to be found guilty of vandalism. Thus, there are three elements applicable to vandalism.

Here, the first element would be meant because it is LeBron James’s home the first element would be meant in regard to the defendant not be the sole owner of the property that was damaged, defaced, or destroyed. Maliciously is the mental state requirement for vandalism. It is defined as “intentionally do a wrongful act, or act with the unlawful intent to annoy or injure someone else.” Cal Crim 2900. Because of the racial slur that was spray painted it is easy to identify that the defendant had a malicious intent.

The next part of this element is that one defaced with graffiti or other inscribed material. Graffiti or other inscribed material includes an unauthorized inscription, word, figure, mark, or design that is written, marked, etched, scratched, drawn, or painted on real or personal property. Cal Crim 2900. Because there was a word spray painted on the fence of Mr. James home this would be the basic scenario of what is required. In addition to the spray paint, it was on the fence, which is real property.

Lastly, it is also possible that the property is damaged or destroyed, and that would fulfill the first element. If the property is completely destroyed then it can still be vandalism even though it was defaced or marked. Though the fence is probably not destroyed, and just damaged it is worth mentioning.

The last part of vandalism has to deal with the cost of the damage on the property, so the fence in this case. If the damage is less than $400 it is a misdemeanor prosecution, however, if it is $400 or more it is a felony. Here, it is more than likely a felony. Because the fact that the residence is $21 million dollars it is more than likely that the gate is fairly expensive. We do not know the specifics of this gate but just repainting it can easily be $400, assuming it is good size based on the home size. Because it is probably $400 dollars in damage or more it would be a felony charge.

Therefore, because of the facts stated above, there is a case for vandalism.

Next, we will look at the hate crime aspect of the LeBron James case. A hate crime is where one commits a crime such as assault or vandalism, and one is motivated in part by the fact that the victim’s disability, gender, nationality, race, ethnicity, religion, or sexual orientation, your criminal offense will be considered a “hate crime” . . . and as a result, one may receive an enhanced sentence. California Penal Code 422.7. As discussed above there was a crime of vandalism so that is already meant.

 The second part of a hate crime involves that a specific characteristic that motivated the suspect or that the suspect was biased against.  There is a long list stated above of certain characteristics that would qualify. But the bias does not have to be the only factor motivating the alleged crime. If you had more than motivation, you can still face hate crime charges, as long as the bias was a substantial part of your motivation. Here, there is a possibility that the defendant did the act because he did not want Mr. James and the Cleveland Cavilers to win the NBA Finals, and that it did not have much to do with the Mr. James race. However, a vital fact is what the defendant spray painted on Mr. James fence, it was a racial slur, it was not saying that he hopes the team loses or something generic like that. With the racial slur being present it would show that race had some motivation for the crime. The defendant may argue that he was not motivated by race, however, it is likely that the Mr. James would prevail because the defendant addressed the Mr. James race in the commission of the crime.

Thus, for the reasons stated above it is likely that there is a hate crime present in The LeBron James case.

What kind of punishment will the defendant be facing for the vandalism and hate crime? Punishments always very but in regard to the vandalism we will assume that it is over $400 dollars and a felony and see what kind of punishment that entails. In addition, we will look to see what kind of influence the hate crime has over the defendant’s punishment.

For the vandalism punishment, it would a felony charge because the damage is at least or more than $400 hundred dollars. Cal Pen Code § 594. If the charge is a felony the max amount of time would be one year in county jail and a fine not exceeding ten thousand dollars. However, if the damage exceeded ten thousand, then the fine could potentially be up to fifty thousand dollars. Here, it would not exceed the ten thousand dollars so the fifty thousand dollar fine would not be applicable.

Next, we will look at the significance to the charge of the hate crime the suspect will be facing. The enhancement of punishment relies much on the underlying criminal charge. In relations to this case, it is likely that the suspect would have a felony hate crime charge because they caused more than $400 dollars in damage. If it is a felony hate crime charge the suspect could face anywhere from sixteen months to three years longer in prison. Plus, a fine up to then thousand dollars. The prosecution can use discretion in determining what punishment to pursue, thus it is possible in some case they charge a misdemeanor hate crime if the underlying crime was a misdemeanor. This is known as a “wobbler” because it can go either way.

Thus, it is possible that the defendant can spend up to four years in prison because of spray painting a racial slur on Mr. James gate entry to his Brentwood home.

In conclusion, with the limited facts given to us in the news article, it would seem as if the defendant here has a pretty strong case of a hate crime and vandalism against them. It is possible with the hate crime the suspect may face up to four years in prison. It shows that one act can be adjoined with multiple crimes and the punishment will be enhanced because of it.

If you have questions about the criminal process, feel free to contact San Diego Criminal Lawyer Vik Monder 619-405-0063 or visit San Diego Criminal Lawyer

Monder Law Group - News

Cold Case Murder in LA Solved Because of Abandonment DNA

After six years of two unsolved murder cases, it seems as if there would be no hope of catching the person responsible for the crime. This is not the case here, Geovanni Borjas was arrested last Thursday for the rape and murder of two young women in the Lincoln Heights area of Los Angeles. Borjas has pleaded not guilty to the crimes and is due back in court June 22^nd. He will remain in jail without bail. The first victim is 17-year-old Michelle Lozano, she was last seen alive on April 24, 2011. The following day her body was discovered of the 5-freeway nude and wrapped in plastic bags and placed in a container. The second victim is 22-year-old Bree” Anna Guzman. On January 26^th, 2012, her body was found in Glendale also off of a freeway ramp. Guzman had been reported missing for about a month.

But what lead to the arrest of Borjas? Apparently, there was evidence on both the bodies that matched which in turn linked the two murders together. When the investigation went on they looked into the DNA bank and no matches showed up, which would seem like the end of the road.  However, the investigators would then conduct a familial search. A familial DNA search is a search by law enforcement in DNA databases for genetic information indicating a relative of a person they seek to identify. When a search for an exact match to a DNA sample comes up fruitless, a familial DNA search may bring back a partial match, indicating a sibling, child, parent or another blood relative. Find Law DNA Search Article. In this case, this search leads to Borjas Father, who was arrested in the past in a completely different case, but DNA was kept in the collection. The DNA was close but no match, but the police then investigated the Son, Geovanni Borjas.

The police would then be investigating Borjas without his knowledge. They would follow him throughout the day and see if they could find anything. They also waited for Borjas to spit on the sidewalk and then they collected the saliva from the ground. The officers then gave the saliva sample to the investigators which deemed the DNA to be a match. Geovanni Borjas was then arrested.

We will look at this type of evidence, which is called abandonment DNA, just how powerful it is. In addition, how this evidence is legal. Also, we will discuss how allowing this evidence can affect citizens. Lastly, we will discuss if or how this can be changed.

What is abandonment DNA? Abandoned DNA is defined as any amount of human tissue capable of DNA analysis and separated from a targeted individual’s person inadvertently or involuntarily, but not by police coercion. Elizabeth Joh, Law Review of Northwestern. It is essential that it is clear that abandonment DNA is known to be different from taking blood to check to see what one’s blood alcohol content is. An example of abandonment DNA is where one is done smoking a cigarette and flicks it on the ground or in the trash. After it is ‘abandoned’ it is then taken by the police or investors and tested. Here, the abandoned DNA would be the saliva Borjas left on the sidewalk when he spat. This would be the DNA, and abandoned by borjas all in one motion. It is also noted that there does not have to be a great amount of the DNA for accurate testing, just a little bit is more than enough to yield acceptable and accurate test results. Therefore, abandonment DNA is a slight amount of DNA that a person can inadvertently leave behind.

Is the use of abandonment DNA legally allowed in court? To some surprise, the answer is yes.  One would feel that the taking of saliva of the ground would infringe on one’s reasonable expectation of privacy under the Fourth Amendment under The United States Constitution. However, it was that “DNA testing of a surreptitiously collected cigarette butt, which defendant had voluntarily discarded by tossing it onto a public sidewalk, did not constitute a search under the Fourth Amendment to the federal Constitution, since defendant had no reasonable expectation of privacy in the testing, where the testing was done only to identify defendant as a suspect in an ongoing criminal investigation.” People v. Gallego, 117 Cal. Rptr. 3d 907 (Cal. App. 3d Dist. 2010).  This is analogues with Borjas spitting as he is walking down the street because he voluntarily discarded his saliva in a public area, thus there is no search and Borjas had no reasonable expectation privacy from the saliva being tested.

The Fourth Amendment usually deals with a reasonable expectation of privacy to one’s homeland or belongings. Not so much with this kind of DNA. The use of the Fourth Amendment actually treats the use of Abandonment DNA like one’s garbage that they set out on the curb. The case law states that where suspects knowingly expose items to public view, the Court has held that collection of such evidence by the police falls outside the Fourth Amendments protections. Katz v. United States, 389 U.S. 347, 361 (1967). Here, because the spit or a used cigarette that is on the public sidewalk, in the public view has no protection for it. This is why the police were allowed to take the spit off the sidewalk from Borjas and use it as evidence and later to arrest him for the two alleged murders.

This is completely different from when a government forcibly removes DNA from a person.  “The obtaining of physical evidence from a person involves a potential Fourth Amendment violation at two levels; the seizure of the person necessary to bring him into contact with government agents, and the subsequent search for and seizure of evidence. United States v. Dionisio, 410 U.S. 1, 8 (1973). A scenario that would trigger this would be police making one spit into a jar or holding them down and taking their blood.  None of this took place in regard to the Borjas situation, but as an example of what would violate The Fourth Amendment.

What kind of affect can this have on citizens? This could possibly result to a mass hysteria. The idea that a search warrant is not required to take people’s DNA while they complete normal daily actions can lead to reasonable fear of invasion of privacy. Los Angeles Police Department took a cup of coffee out of the trash and used it as a sample of DNA to convict Adolph Laudenberg of murders that occurred years ago. One may argue that this is good it catches criminals but the problem would then be where do we draw the line. In Victoria, Australia the police were using everyday household items and creating banks of people who were not being investigated, just so the police would have a sample in case their DNA was at a crime scene they would be able to identify them with little effort. The police office even admitted there was no protocol for the sampling and creating the bank and there was no law which regulated how the police conducted the sampling of abandoned DNA. In response to the public outcry by legal and privacy advocates, Victoria’s attorney general has recently promised to examine the legal loophole and to review the lack of safeguards on the practice. Patrick Murphy, Call for Ban on Covert DNA Sampling, AUSTRALIAN, Nov. 23, 2004.

As alluded to above, there benefit of allowing abandon DNA is that this does take people who committed crimes and take them off the street. Adolph Laudenberg was tied to four killings in the 1970’s and was convicted which is a good thing. People should pay for what they have done wrong. As our technology advances, so does our investigation processl. Which means we should be able to have a safer community because we are able to convict the people who make the community less safe.

How can we limit the use of abandonment DNA? The courts have pretty much spoken and said this is legal.  Thus, the only way to limit this would be to pull a page out of the Victoria governmental system and send the law to the legislator to fix the layout of the law. This could set limits or guidelines on how abandonment DNA is treated.

This is a debate that we as a society will deal with more and more with as we become more technologically advanced. Safety v. Individual rights to privacy.

If you have questions about DNA in your criminal case, please feel free to contact San Diego Criminal Attorney Vik Monder at 619-405-0063 or visit San Diego Criminal Defense Attorney

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Man Convicted of 5 Years Probation for Stalking Sandra Bullock

Famous movie actress, Sandra Bullock, woke up one night to the sound of one walking on the third floor of her Hollywood Hills mansion, right above her room. With the noise coming of surprise, Ms. Bullock decided to investigate. She got up and peered down the hall and saw a man in all black shuffling down the way. When Ms. Bullock saw the man, she ran back into her room and locked herself in her closet. When she was in the closet she called the police, and stayed on the line for 15 minutes, and lead the police through her house via phone until they found the man. Once the man was arrested he was yelling apologies at Ms. Bullock and asked for her not to press charges.

When the man was detained the officers searched him and found a journal which showed signs that he had an obsessive stalking behavior. In addition, he had written a love letter to Sandra Bullock. The love letter said, “you are my wife by law, by the law of God you now belong to me.” Joshua Corbett is the man who was in Ms. Bullocks home. Corbett stated that he had only broken in to the home to show Ms. Bullock that her security system was lacking and that she was not safe in her own home. The investigation had shown that Corbett had been watching the home for days. Corbett did not have any weapons in him when he was detained. The trial is now over and Corbett received 5 years of probation and a 10-year restraining order from Ms. Bullock.

Stalking is a term that we hear about pretty regularly on the news and everyday life. It may be used for a verity of different things, but we will look at what stalking means legally. Stalking is outlined for as, “Any person who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family is guilty of the crime of stalking.” California Penal Code 646.9. It is also common for us to hear about someone stalking a celebrity. With the technology, we have available to us today it is a lot simpler to find out information about people, Especially celebrities like Ms. Bullock.

We will look at all the elements of stalking and what it all entails. To do this we will break down the elements and apply the facts given to us from the Bullock and Corbett situation. For stalking the first element that one willfully, maliciously, and repeatedly followed or willfully and maliciously harassed another person. The second element is that one made a credible threat against that person. The last element is that one did so with the specific intent to place that individual in reasonable fear for their safety or for the safety of their immediate family. California Penal Code 646.9.

The first element is that one willfully, maliciously, and repeatedly followed or willfully and maliciously harassed another person. Willfully means with a purpose or willingness to commit the act. It is not necessary that one intends to break the law. CALJIC 1.20. Maliciously means that you intend to commit a wrongful act or to intentionally anger, disturb, annoy, or injure another person in an unlawful manner. CALJIC 1.22. Harassing means to engage in a knowing and willful “course of conduct” directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person. Here, because Corbett broke into Ms. Bullock’s home it can be seen he was willful. There are facts showing us that he blacked out and did not know where he was or that he was taken there against his will. In addition, Corbett had the love note for Ms. Bullock which would show that he would have a reason for entering her home. Moreover, Corbett acted maliciously because breaking into one’s home is a wrongful act and would anger, disturb, annoy, and possibly injure another in an unlawful manner. Lastly, Mr. Corbett’s overall conduct did seriously alarm Ms. Bullock, therefore, fulfilling the last part of the element. Thus, the first element of stalking is meant. 

The second element we will look at is that one made a credible threat against that person. This can fall within a gray are because what is considered a credible threat. A credible threat is one that causes the threatened person reasonably to fear for his/her safety or for the safety of his/her immediate family.” In order to be “credible”, the person making the threat must have the apparent ability to carry out the threat even if they do not actually intend to do so. California Penal Code 646.9. Here, because Mr. Corbett did not have a weapon it may seem as if he did not pose a credible threat against Bullock. However, Corbett would not need an actual weapon to be a threat to MS. Bullock, presence alone could do it in a private place like her home. Because Corbett was in Ms. Bullock’s home, and a night which adds a little more of a fear factor to the satiation there would a credible threat. It is possible that Corbett could have harmed Ms. Bullock even though he did not have the intention to do so. Therefore, the second element of stalking is meant.

The last element that the prosecution will have to prove is that one did so with the specific intent to place that individual in reasonable fear for their safety or for the safety of their immediate family. The person charged must have wanted to place another in fear, it is basically their goal to do so. Reasonable means the threat must place a normal person in fear. The victim must not be abnormally sensitive. This is a pretty broad requirement, and a lot of different things can fulfill this part of the rule. The usual qualifications would be anything involving bodily injury. However, there have been cases of one sending dead flowers to another daily that constituted as stalking. Here, it is not too difficult to see that Ms. Bullock would be placed under a reasonable fear from Corbett being in her home and watching her and her house. In addition, there was Mr. Corbett’s love letter stating that she is his by law and by God. This kind of behavior from another, epically one you have never meant would place them in a reasonable amount of fear. As stated above this is broad and able to fit into multiple situations, including this one. Thus, all the element of stalking would have been meant by Mr. Corbett’s behavior and actions.

The penalties for stalking can vary greatly. There is no set punishment for a stalking charge. It is very open to the discretion of the state. This means that stalking can be charged as a felony or a misdemeanor. This is referred to as a “wobbler” because it can be charged as either felony or misdemeanor.  The prosecution will look at the specifics of the case and the person who is charged criminal history when deciding whether to pursue felony or misdemeanor punishments. Here, Corbett did not receive any prison time which means the stalking was charged as a misdemeanor. There are some possible mitigating factors that lessened the charge to the misdemeanor. It is not stated, but this more likely Corbett’s first offense and he probably has no prior history of stalking. In addition, he did not have a weapon or threaten to really hurt Ms. Bullock, this would help him since he did not act with violence. There was also a possible stipulation in reducing time in return for the 10-year restraining order that demands him to stay away from Ms. Bullock. Therefore, the charge Corbett received was a misdemeanor.

In conclusion, stalking is defined as “Any person who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family is guilty of the crime of stalking.” California Penal Code 646.9. With all the facts and circumstances taken into consideration, it does seem as if Mr. Corbett was stalking Ms. Bullock.

If you have questions about the criminal procedure process in San Diego, feel free to contact San Diego Criminal Lawyer Vik Monder at 619-405-0063 or visit San Diego Criminal Defense Lawyer

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San Diego Fitness Model Cross-Country Robberies Extradition

David Byres, a famous male fitness model from Solana Beach, California has allegedly committed multiple cross country robberies.  Most of these alleged robberies took place in Greenwich, Connecticut.  However, there is also alleged bank robberies, pursuits, and grand theft auto charges in California, New York, Pennsylvania, and Arizona. Byres was arrested by the FBI in the North Park area of San Diego on May 2^nd. He has appeared in the Superior Court of San Diego where he pleaded not guilty to the grand theft of an exercise rowing machine. Byres bail was set to at $35,000, however, he remains in jail and is facing extradition back to Connecticut.

With Byers committing a series of crimes in Connecticut and then being apprehended in California means he will have to be extradited back to that state to face his charges. The extradition process can be very tricky because each state is considered its own jurisdiction. We will look at the extradition process that David Byres will be going through in depth and what he and the other states in involved will have to do in order to have him back in their own jurisdiction.

The term “extradition” refers to one state or nation transporting custody of an individual to another state or nation. The person facing expedition is usually referred to as a “fugitive from justice.” Reasons people may be facing expedition is because they allegedly escaped imprisonment, committed a crime, or violated the terms or conditions of their bail, probation, or parole. There are two types of fugitives: those who are being charged with a crime, who have escaped imprisonment, or who have violated their bail, probation or parole and who have purposely fled the state in which that alleged crime/violation took place in order to avoid punishment or capture, and those who have travelled or moved unaware that they have done anything wrong or are wanted for criminal proceedings.  These individuals may not even become aware of this fact until, for example, they are pulled over for speeding, and the officer runs a check and subsequently arrests them pursuant to a warrant. In regard to Byres, the reason he is facing extradition is that he allegedly committed a crime, which refers to the robberies and the stolen cars. Moreover, it can be inferred that he was aware of these crimes because it is not like it was unpaid citation and he then moved unaware of his an unpaid debt. The State where the person is arrested or taken into custody is commonly known as the Asylum, in this case, that would be California. In addition, the state or nation asking for the individuals return is known as the demanding or home state, in this case that would be Connecticut.

It seems as if there would be a clash of state laws in determining on how to go about the extradition process because each state, in essence, can make its own guidelines and laws on certain processes. However, extradition is laid out on the Federal level in order to have some uniformity.

Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State, District, or Territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, the executive authority of the State, District, or Territory to which such person has fled shall cause him to be arrested and secured, and notify the executive authority making such demand, or the agent of such authority appointed to receive the fugitive, and shall cause the fugitive to be delivered to such agent when he shall appear. If no such agent appears within thirty days from the time of the arrest, the prisoner may be discharged.

8 U.S. Code § 3182. This U.S. Code lays out for us what the states have to do to in order to complete the extradition process. Here, it essentially requires California to hold Byres as long as Connecticut has issued a demand for him.

In addition to the Federal laws, there is the Uniformed Criminal Extradition Act (UCEA). The UCEA is a little more common, and has been adopted by most states. The UCEA primary purpose is to regulate the process of interstate extradition. Much like the Federal Rules, the UCEA establishes clear steps that each state must follow whether they are the demanding state or the asylum state when they are involved in an interstate extradition. However, it should be noted that the Federal law does predominate state law, states may have their own laws affecting extradition, as long as those laws do not conflict with federal law.

Because David Byres has been obtained in California we will look at their extradition process which pretty much mirrors the UCEA. In order to be extradited from California, the state must receive a proper demand from the home state, and also have issued a California Governor’s warrant, and conducting a probable cause/identification hearing to ensure that you are not being falsely accused or improperly subject to extradition. UCEA.

A proper demand from a home state basically would inform California that the person they are demanding committed a crime, escaped from jail or violated the terms of their agreed upon bail, probation, or parole. For the Byres situation, Connecticut would have to send California a demand stating that Byres is charged with multiple robberies in their state. Because he allegedly committed a crime that is all that the demanding state must show, violating terms and escaping jail is not needed and not applicable to Byres.

The next step would be the Governor’s warrant. When the home state executes a proper demand, the California Governor must sign a California arrest warrant. This warrant authorizes law enforcement to arrest you at any time/place where you are found, and deliver you to an agent of the demanding state. California Penal Code 1549.3. For Byres to be sent to the home state, Connecticut, Governor Jerry Brown must sign this warrant in order for his arrest to take place.

However, there is some initial discretion left to law enforcement. If there is a situation where there is not a warrant for one’s arrest it does not mean officers have no grounds to obtain the individual. The law states that,

The arrest of a person may also be lawfully made for extradition from California by any peace officer, without a warrant, upon reasonable information that the accused stands charged in the courts of any other state with a crime punishable by death or imprisonment for a term exceeding one year, or that the person has been convicted of a crime punishable in the state of conviction by imprisonment for a term exceeding one year and thereafter escaped from confinement or violated the terms of his or her bail, probation or parole. When so arrested, the accused shall be taken before a magistrate with all practicable speed and complaint shall be made against him or her under oath setting forth the ground for the arrest.

 California Penal Code 1551.1. This directly relates to Byres because he was arrested by the FBI. Because the FBI had knowledge of Byres alleged crimes they were able to act even in the absence of the governor’s warrant, and the fact they act as Federal Officers and not the usual state peace officers. There is a condition that they must get the arrested in front of a Judge as speedy as possible to hear whether the arrest is allowed and that the expedition is punishable by death or a year or longer in prison. Because Byres has multiple robberies worth a substantial amount of money he would have meant all of these requirements.

The last part of this process there is the extradition hearing. If the one is arrested on the Governor,s warrant, it is not a given that they will be handed over to the demanding state. In some states, like California, if one decides to fight the extradition they can. The court will look to probable cause and the person’s identification. The extradition hearing will look into the case, and decide whether one can be sent to the demanding state. The main thing that will be inspected is probable cause and identification.  Probable cause is just one of the things the court will look at while determining whether the extradition should be granted.  Probable cause is defined as, a reasonable belief that you are or were involved in criminal activity. Some states have a different time period that this must take place within, however, most have a rule stating that this hearing must take place within ten days of your arrest. If the Judge finds probable cause to believe the arrested person is the same person specified in the conditional order and the order for return, the judge must remand the person to custody without bail and direct the delivery of that person to agents of the other state. However, the district attorney may stipulate, with the concurrence of the other state, to the release of the person on bail or own recognizance pending the arrival of duly accredited agents from the other state. Here, it would seem as if it is pretty simple to establish probable cause for Byres because there are witness testimony and surveillance of him committing the alleged crimes. In addition, the FBI had been chasing him in five different states. One can elect to have an attorney at these hearings. These hearings main purpose is to make sure there has not been a mistake made. For example, two people share the same name and the wrong one was arrested.

Byres could waive his right and agree to be extradited to Connecticut if he chooses to. This could be applicable if he wanted to speed up the process and get to the state and face the charges. If Byres opted for this there would not be a Governor’s Warrant needed or a hearing.  California Penal Code 1555.1.

There is also another wrinkle for Byres. It is alleged that he stole a car while in California. Because this is present the California can hold Byres and not extradite him to Connecticut. “If a criminal prosecution has been instituted against a person charged under Section 1551 under the laws of this state regarding extradition from California and is still pending, the Governor, with the consent of the Attorney General, may surrender the person on demand of the executive authority of another state or hold him or her until he or she has been tried and discharged or convicted and served his or her sentence in this state.” California Penal Code 1553.1. Here, if Byres is charged with stealing the car California can sentence him and once he finishes his sentence then extradite him to the Connecticut, the demanding state. Therefore, it is possible that Byres spends some time in California.

Thus, Byres may be facing the extradition process for crimes he allegedly committed across the United States.

 If you have questions about the criminal procedure process in San Diego, feel free to contact San Diego Criminal Lawyer Vik Monder at 619-405-0063 or visit San Diego Criminal Attorney

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Tiger Woods Accused of DUI for Allergic Reaction to Prescription Drugs Is Not a Defense to a DUI

Golfer Tiger Woods was arrested on Memorial Day in Florida for suspicion of driving under the influence of a controlled substance. In the State of California this charge would be filed under a VC 23152(e); which is specifically designated for DUI cases where prescriptions drugs are involved and no alcohol is present.

It is still illegal to be driving under the influence of drugs in any state and each state treats the penalties for a DUI differently depending on the jurisdiction. In San Diego, these cases can result in a 5-year probationary period with significant fines and classes required to get your license back. Often times these cases are expert specific where a forensic toxicologist would be necessary to testify in a case where the amount of the controlled substance in the defendant’s blood stream at the time of driving would be the most critical part of the case.

These cases are subjective because there is no per se law for the amount of the prescription drug someone would need to have in their system before it is determined they are impaired. For drugged driving cases it depends on the interpretation one makes regarding the impact the drug would have on the driver at the time of driving. Most likely a blood test was conducted at the station and is sent for analysis at the Florida Sheriff’s crime lab.

The amount of drugs in someone’s system is measured in nanograms per milliliter. It will be interesting to see the amount of the controlled substance in Tiger’s bloodstream at the time. Most prosecutor expert toxicologists will testify any amount above 500 nanograms per milliliter is enough for a person to be under the influence of that controlled substance at the time of driving.

An allergic reaction to the controlled substance or prescription drug is not a defense in a DUI case. It will come down to how a jury interprets the expert testimony and how Tiger Woods performed on the field sobriety examination.

The field sobriety test is a combination of balancing tests and nystagmus examinations to indicate the probability of impairment. Field sobriety test on their own are not enough to prove someone is guilty beyond a reasonable doubt. It will be up to a jury to decided under the totality of circumstances if Tiger Wood’s toxicology report in combination with the field sobriety test and driving patterns at the time are enough to determine he was under the influence at the time of driving.

If you have questions regarding a DUI case in San Diego, attorney Vik Monder specializes in cases involved with drugged driving in San Diego County. Feel free to contact him anytime at 619-405-0063 or visit San Diego Criminal Lawyer

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San Diego Navy SEAL Found with Child Pornography

            Gregory Seerden is a Navy SEAL who was stationed in Coronado, California, he has been charged with several different felonies the main one being in possession of child pornography.  This investigation began when a woman claimed that Seerden had sexually assaulted her one night when they went out.  The woman claims that Serdeen and her went out for drinks and then she blacked out and woke up to find out that they had sex and reported him. This had taken place in Norfolk, Virginia. While investigators were looking into the sexual assault claim they took Seerden’s cell phone to look through it. This is where they discovered 78 pictures of suspected child pornography. There was also pictures with Seerden committing lewd acts with the victims.

            Seerden has now been expedited to Norfolk, Virginia from San Diego, and pleaded not guilty to the charges last week. He is set for trial in the middle of July.

            It would seem as if there was not much hope for Seerden to put forth a defense to these charges. When there are pictures and video of one committing the act it seems as if all of the go to defenses to child pornography crimes are not applicable, the main one being that the person charged did not knowingly have the images. With the person charged being in the pictures and saved on his phone that defenses would offer no help.

However, there is another defenses strategy that Seerden can take. Each and every case has a theme. A theme is something that the details what this specific case stands for, what is the meaning of it, and what impact will it have on others after the ruling. The prosecution’s theme will most likely play to the juror’s emotions, even though emotions should be excluded from the court proceedings it would be very difficult to do that in a case like this. The prosecution can easily paint a picture to make Seerden look dangerous and that it is the best interest of the community to lock dangerous people who prey on children up. This would be a very compelling theme and is difficult to rebuttal.

The defense’s strategy would be to deemphasize the facts of this case, which is Seerden having possession of child pornography and making the theme something bigger and more general, something that one can relate to. In addition, the defense would rather have a motion to suppress the evidence and not have to go in front of the jury at all. For this case, a good strategy would show that is was not in the reasonable course of the investigation to go through Seerden’s cell phone, where all of the evidence was found. This idea can also play into the fears that some have of the government overreaching and abusing their power. Some may see this as a domino effect, if it is allowed that the investigators can look through things that are not related to the case during an investigation. If this is allowed citizens may suffer from an invasion of privacy. But, this does greatly depend on of there was a warrant, and what the warrant specifically stated.

If there was an investigation and Seerden was questioned and then arrested with no search warrant the defense would have an easier time at trying to suppress the cell phone. For exclusion to be appropriate, the deterrence benefits of suppression must outweigh the rule’s heavy costs. Under a line of cases beginning with United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677, the result of this cost-benefit analysis turns on the “flagrancy of the police misconduct. When the police exhibit “deliberate,” “reckless,” or “grossly negligent” disregard for Fourth Amendment rights, the benefits of exclusion tend to outweigh the costs. Herring, supra, at 144, 129 S.Ct. 695. Davis v. U.S., 564 U.S. 229 (2011). The benefit of suppression would be great here because it could be seen that the investigators may have deviated from the heart of the investigation and freelanced a bit. A sexual assault does not really encompass a defendant’s cell phone because it is not a part of the crime. This is distinguishable from a case where one is accused of selling drugs because it is the scope of the crime that the drug dealer would use their cell phone for business purposes. A cell phone in a sexual assault case may appeal to the court as being outside of the scope of the investigation.

This has also happened before in Military Courts where a person’s cell phone was searched while being investigated general misconduct. The court stated “Cell phones may not be searched without probable cause and warrant unless search and seizure falls within one of the recognized exceptions to the warrant requirement.” U.S.C.A. Const. Amend. 4. U.S. v. Wicks, 73 M.J. 93 (App. Armed Forces 2014). This further seals up the decision that a person’s cell phone is not allowed for search with no probable cause of the investigators. This case also held that, Government improperly exceeded scope of service member’s initial private search of accused’s cell phone, when detective scrolled through some text messages, absent information as to extent of initial search, and any remaining expectation of accused’s privacy was eliminated when Government sent phone to county for forensic analysis, and used these results for further computer forensic examination, searching over 45,000 text messages. Id. Wicks. This seems to analogous with Seerden’s case. Because it was unlawful to go through Wicks text messages it would seem as if it would be unlawful to go through the photos in Seerden’s phone. This could possibly have a compelling argument to the court as an overstep by the investigators into Seerdens privacy.

In the scenario where a warrant has been issued would be more complex and difficult for the defenses. A search warrant is pretty complex, it has multiple requirements to be valid. To be valid the search warrant must meet four requirements: (1) the warrant must be filed in good faith by a law enforcement officer; (2) the warrant must be based on reliable information showing probable cause to search; (3) the warrant must be issued by a neutral and detached magistrate; and (4) the warrant must state specifically the place to be searched and the items to be seized. With all of those requirements meant the warrant would be valid.

It is noted that Police may only search the particular area and seize the specific items called for in the search warrant. Police may search outside the scope of the warrant only if they are protecting their safety or the safety of others, or if they are acting to prevent the destruction of evidence. Police may seize objects not specified in the warrant only if they are in plain view during the course of the search. People v. Scott, (1968) 259 Cal.App.2d 268, 279. This relates to the Seerdens case specifically because it states that the warrant must list out the items that the investigators are allowed to search for and to ultimately seize. With these being required the warrant had to state that the cell phone is allowed to be confiscated. Where it might seem like it relates to the crime Seerdens was investigated for, sexual assault, with how much people use their cell phones now, it could essentially be related to anything, if one tries hard enough to do so.

The warrant must have fully stated that the cell phone should be seized. It is not enough if the warrant is vague and has a generalization of evidence that might be related. The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant. People v. Smith, (1994) 21 Cal.App.4th 942, 948. The defense would have to look to see if the warrant meets this standard in relation to Seerdens cell phone. The standard is the warrant would have to specify that the investigators can look into and seize the phone. This rule takes away the general search for evidence and is more of a specific detailed search. Being a California case this would act as a persuasive authority and not binding on th court as the other supreme court cases used above. However, it is a general concept in California in regards to the warrants, thus it is possible that it have some pull.

In addition, it is possible that there is not probable cause to issue the warrant in the first place. Here, because it was reported that Seerden had sexually assaulted a person may not be enough to launch an investigation and a search warrant. It was a claim from another person and there does not seem to be other witnesses who stated that they had seen this occur, thus turning this into a ‘”he said she said” situation. This makes it more difficult for the prosecution to actually have probable cause.

Thus, there may be some possibilities for the defenses to try to suppress Seerdens cell phone which contains all of the evidence for several of the felonies he is now charged with.

If you are being investigated for child pornography in San Diego, feel free to contact San Diego Criminal Lawyer Vik Monder at 619-405-0063 or visit San Diego Criminal Defense Attorney

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Understanding the Aaron Hernandez Criminal Appeal

A man who was a star on a Super Bowl winning team, to one who was sitting in a prison cell not knowing when or if he would get to see freedom again. Aaron Hernandez had been given a life sentence with no chance of parole for the murder of Odin Lloyd, a semi-professional football player. Hernandez was also charged with the murder of two other people, which he was not guilty of. Hernandez had appealed the original murder conviction, with some thinking that he may have a good chance to overturn his conviction because he was guilty was found mostly on circumstantial evidence, and an unpredictable jury was of no help. But before Aaron Hernandez ever made it to the appeals court he did something that no one expected, he took his own life. After everyone experienced shock, the main question now is what happens to Hernandez’s appeal?

In a few states, seven to exact, Massachusetts, where Aaron Hernandez is charged, is one of them, there is an old common law doctrine that still applies, it is known as abatement ab initio. Abatement ab initio is Latin for “from the beginning.” The doctrine would essentially wipe away all of the crimes and criminal proceedings that one has not been able to appeal before their death.  the doctrine of abatement holds that when a criminal defendant dies during the pendency of his direct appeal, the entire criminal proceeding is extinguished ab initio so that in the eyes of the law, it is as if he had never been indicted or convicted. See United States v. Moehlenkamp, 557 F.2d 126, 127–28 (7th Cir.1977). This judge-made rule is usually explained in terms of fairness or lack of finality or both. This takes away the conviction in question and gives the person a clean slate and are no longer guilty in the eyes of the law. There are two different ways people usually feel about this old doctrine, that it is right, or that it is wrong. The argument for it being right is that one is innocent until proven guilty. The argument for it being wrong is that it is unfair to the victim and their families. However, it should be noted that the Judge must approve of this for it to take full effect, which he has not done so yet.

It is of standard American knowledge that “we are innocent until proven guilty.” This is one of the rights that set us apart from some of the other legal systems in the world and which help modernize or criminal justice system before a lot of others. A person who disagrees with this movement by the defense might argue that Aaron Hernandez was proven guilty because he was already convicted of the original murder. However, the entire criminal process is not over until the defendant has used all of their appeals. With Volpendesto’s death proceeding his appeal to several accounts of racketeering and fraud he would not have concluded his criminal proceedings. U.S. v. Volpendesto, 746 F.3d 273 (7th Cir. 2014). Here, because Hernandez never made it to his appeal the criminal proceedings were not over. Because there was not an end to the criminal proceeding Hernandez will not be considered guilty of the crime of which he appealed, the original murder of Odin Lloyd. The people that support the abatement doctrine agree with this because there was not a ruling and someone like Hernandez could have possibly been ruled as innocent. With this possibility, it would seem unfair to label a person as guilty when they have not fully exhausted all of their resources to the appeal. In addition, there are a number of cases that are overturned in the appellate courts, therefore the possible clearing of Hernandez’s name is not out of the realm of possibilities. Thus, there will not be an official ruling on Hernandez’s trial because he did not make it to his appeal, upholding the basic idea of innocent until proven guilty American standard.

The fact that there is not a final ruling may not seem significant, however, it does make a substantial difference to the victim’s family. This is where the people that oppose the abatement ab initio doctrine have a disagreement with the practicality. The rule states that without a final criminal conviction, there can be no order of restitution under 18 U.S.C. § 3556. U.S. v. Volpendesto, 746 F.3d 273 (7th Cir. 2014). This is significant because restitution of under 18 U.S.C. § 3556 is stated as, “The court, in imposing a sentence on a defendant who has been found guilty of an offense shall order restitution in accordance with section 3663A, and may order restitution in accordance with section 3663. The procedures under section 3664 shall apply to all orders of restitution under this section.”  Here, the victim’s family may be unfairly punished because the court may lack the power to order them restitution. The restitution is supposed to help make the victim’s family whole again. There are a couple of different theories behind the criminal justice system, one is revenge. It may make the victim’s family feel as if they have gotten revenge for what the defendant did to the victim. There are some different forms of this but the money is the most common go to. However, the abatement doctrine will deprive the victim’s family of more than pecuniary restitution. Some people may want the defendant to have the title of guilt for whatever crime they allegedly did, or were convicted of. As alluded to above, the abatement doctrine will also deprive the victim’s family of the defendant being recognized as a criminal or the person who hurt or killed their beloved family member. The people that usually oppose the abatement doctrine do not support for these reasons, it may seem as if it is a loophole to the criminal justice system, because the person on trial dies, or in this case took their own life, the guilt is washed away. Thus, because the lack of victim’s justice some people do oppose the abatement ab initio doctrine.

There is a strong counter argument to those who oppose the abatement doctrine. The idea that the victim’s family is left with nothing is not entirely true, there is another way for them to receive restitution. However, they must take their claim to the civil court. Forfeiture of “monies, negotiable instruments, securities, or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance” does not abate on the death of property owner, since the provision is primarily civil in nature. Comprehensive Drug Abuse Prevention and Control Act of 1970, § 511(a)(6), 21 U.S.C.A. § 881(a)(6). U.S. v. $84,740.00 Currency, 981 F.2d 1110 (9th Cir. 1992). This refers to a case where one was selling drugs and was later detained by the FBI for a number of counts, and the defendant was found guilty at the trial court and was murdered in prison while waiting for their appeal date. Because the defendant did not make it to the appeal date the abatement doctrine took place which negated the crimes they had been charged with. Including the restitution to the victim, which in this case is the United States of America because of tax fraud and other things. This is pretty analogoues with the Aaron Hernandez situation. Hernandez was found guilty and had died before the appeal, leaving the victim without any damages. But with the knowledge that the civil court is still an option that is available to the alleged victim’s family for restitution despite the abandonment doctrine, it might seem as if there is still justice available to the victim’s family. While this is true if they do seek monetary damages, it may not still fulfill the desire of revenge by labeling the defendant as a criminal, or as a murder in this case. Thus, this is a strong counter argument that the victim’s family is unjustly hindered by the abatement doctrine, however, it does depend on what the victim’s family seeks.

Therefore, as of now, the Judge has agreed to vacate Aaron Hernandez’s murder conviction under the abatement ab initio doctrine, however, there is a summary judgment in civil proceedings favoring Odin Lloyds mother for monetary damages, but we can expect that there will be much more litigation to take place.

If you have questions about the law in San Diego, feel free to contact San Diego Criminal Lawyer Vik Monder anytime at 619-405-0063 or visit San Diego Criminal Defense Lawyer

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San Diego DUI Suspect that Injured 6 year old Boy Pleads Not Guilty after 15 Deportations 

The defendant Banda-Acosta pleaded not guilty to three serious felony charges of DUI which caries a total of 7 years in prison. The charges include driving under the influence resulting in serious bodily injury and felony hit and run resulting in serious bodily injury. These types of cases are the most serious type of DUI cases and are treated similarly to vehicular homicide cases in DUI fatality cases.

The Chula Vista Courthouse is one of the hardest on felony DUI cases throughout the county. The District Attorney will treat this case as a sentence to court and let the judge make the final decision about the outcome of the case. South Bay Court Judge Garry G. Haehnle is notorious for handing out LID offers and Split Sentences on serious Felony DUI cases. However, Banda-Acosta is not eligible for a split sentence simply because he is not a United States Citizen. Split sentence eligibility are only available under certain type of offenses if the defendant is a United States Citizen and does not have any known prior criminal record. Here, Banda-Acosta is not a United States Citizen and it is likely he has a lengthy criminal history in the United States. Often people on split sentences will receive an early release on supervised release but they must remain in San Diego and check in periodically with probation or parole.  For example, if it is a 4 year commit on a 2-2 split then the defendant may end up getting released before serving an actual two years in custody and will be on supervision for the remaining time of the 4 year commit. The reason for this is that every defendant is awarded 4019 credits so each day they are in custody is another day they do not have to serve. This was enacted because of the overcrowding issues in our prison population. 

The most common offer for this type of offense will be a 7-year LID sentence to court. This means the sentencing judge has all the discretion and can sentence the defendant anywhere from the maximum 7 years or just give him time-served sentence and let him get deported again. The biggest part of the sentencing will be the victim impact statements the judge will hear on the day of sentencing in weighing his decision for the amount of time for Banda-Acosta to serve.   

There is no doubt that the defendant Banda-Acosta will be doing a prison commit. The amount of time he will be doing before being deported once again is going to be the big questions. The fact that he has already been deported 15 times for other crimes will be a significant aggregative factor the Judge will take into consideration for purposes of sentencing. 

It is inevitable that Banda-Acosta will be deported. From a criminal defense standpoint would be the sooner he gets to ICE the quicker he gets out of this country. Potentially the fastest way for Banda-Acosta to get deported would be to post the $230,000 bail that was set and let Immigration pick him up from the detention facility and begin to process him for deportation proceedings. However, Banda-Acosta may end up losing the bail posted or immigration may just hold him until the outcome of the criminal case. The superior court here in San Diego has no authority or authorization to make immigration orders. The federal government alone has supremacy over immigration cases and the state cannot take action against those facing federal immigration matters. It is unlikely any state court judge could hold any material witness facing deportation proceedings in the pending case. 

If you have questions about the criminal procedure process or the immigration implications on criminal cases, feel free to contact San Diego criminal defense attorney Vik Monder at 619-405-0063 or visit San Diego Criminal Attorney  

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Logan Heights Hate Crimes are on the Rise in San Diego

A man was beaten in the Logan Heights area last week. This would seem to be just a normal battery charge. However, the victim in the beating was an African American man, and the suspect was reported to have said that he did not like black people moments before the beatings occurred. In addition, to the suspect stating that he does not like black people he also yelled racial slurs at the victim when he continued to beat him. The suspect started with only his fist, but then he grabbed a bamboo stick and hit the victim in the head multiple times. When the suspect was done with the beating, he walked away and still has not been arrested. The victim went to the hospital with non-life threating injuries. The charge the suspect would be facing could also be “battery causing serious bodily harm.” However. there is more the suspect could be charged with, and that would be a hate crime.

The issue is whether the suspect here has committed a hate crime. A hate crime is where one commits a crime such as assault or vandalism, and one is motivated in part by the fact that the victim’s disability, gender, nationality, race, ethnicity, religion, or sexual orientation, your criminal offense will be considered a “hate crime” . . . and as a result, one may receive an enhanced sentence. California Penal Code 422.7. We will look through the facts we are given by the news article and see if there is any standing for a hate crime charge against the suspect.

We must look to see if the first element of a hate crime is meant with regard to the suspect committing a crime.  The suspect must willfully injure, intimidate, interfere with or threaten someone in a way that could prevent them from exercising their rights under the laws of California, the California Constitution, federal law, or the United States Constitution; OR Knowingly damage or destroy someone’s property for the purpose of interfering with their legal and constitutional rights. California Penal Code 422.6. Here, the suspect did beat the victim, because he beat the victim he would have fulfilled the requirement of committing a crime. A battery is more than sufficient to be the underlying offense for a hate crime. Moreover, because the suspect used a bamboo stick on the victim it is possible that there is an even high charge than a battery.  Thus, the first element required to be able to charge the suspect with a hate crime is present.

The second element of a hate crime involves that a specific characteristic that motivated the suspect or that the suspect was biased against.  There is a long list stated above of certain characteristics that would qualify. But the bias does not have to be the only factor motivating the alleged crime. If you had more than motivation, you can still face hate crime charges, as long as the bias was a substantial part of your motivation. Here, the most applicable characteristic of the victim would be based one race. This is because the suspect told the victim that “he did not like black people.” In addition, the suspect did more than that because he yelled racial slurs at the victim as he continued to beat him. The suspect may argue that he was not motivated by race, however, it is likely that the victim would prevail because the suspect addressed the victims race multiple times during and before the attack. It’s important to note that one can commit a hate crime in California even if it turns out that the victim did not have one of the characteristics listed above, as long as they believed or perceived that they did. California Penal Code 422.55. Therefore, it is very likely that the second requirement of a hate crime would be present to this situation.

Next, we will look at the significance to the charge of the hate crime the suspect will be facing. The enhancement of punishment relies much on the underlying criminal charge. In relations to this case, it is likely that the suspect would have a felony hate crime charge because he used the bamboo on the victim’s head. If it is a felony hate crime charge the suspect could face anywhere from sixteen months to three years longer in prison. Plus, a fine up to then thousand dollars. The prosecution can use discretion in determining what punishment to pursue, thus it is possible in some case they charge a misdemeanor hate crime if the underlying crime was a misdemeanor. This is known as a “wobbler” because it can go either way. Thus, the suspect, in this case, may receive three years in prison if he is charged with the hate crime.

Lastly, we will look at any possible defenses the suspect may have available for a hate crime charge. The first defense is the possibility of not being guilty of the underlying crime. The second would the crime was not motivated by a bias. The third would be the words were protected by the First Amendment. The last defense would be that these are false accusations. Thus, there are some possibilities of defenses to a hate crime charge.

The first being the suspect is not guilty of the underlying crime.  Here, the best way to use this would be to the suspect was acting in self-defense.  If the suspect was the original victim and he had to protect himself then he would not have fully completed a battery. This would be somewhat hard to do. We are given limited facts, but it does state the suspect used a bamboo stick on the victim when he was down. This does not negate the defense because it is possible the suspect did not use the bamboo as the victim stated or at all. Or that the bamboo was a reasonable use of force so that he could protect himself. Thus, there may be a possibility of this defense working for the suspect. 

The second defense that the crime was not motivated by a bias. This defense seems as if it would be a stretch with the limited number of facts given to use. However, if the suspect could show that he was not motivated by the fact the victim was an African American then the hate crime could be dropped.  But this would be difficult to convince a jury of because the fact the suspect addressed the victims race before and during the altercation. However, when all the facts and circumstances are present there may something to show the strength of this defense being applicable to the suspect.

The third being in relation to the First Amendment. This would not be applicable to the suspect in this case because he was violent and maybe even committed a criminal act.  If he was just stating what he believed in a non-threating or violent matter this may be an appropriate defense to him.

The last defense discussed would be false allegations.  Here, there may be another side to the story. It is possible that the suspect and victim got into an altercation and the victim now wants to bring charges against the suspect. Furthermore, it is possible the suspect said nothing about the victim’s race and that they just fight because of something else entirely. Depending on the suspect’s side of the story this defense could be completely applicable to this situation. The suspect may have even committed battery or battery with serious bodily injury but the hate crime is not present and thus, lessening his punishment.

In conclusion, with the limited facts given to us in the news article, it would seem as if the suspect here has a pretty strong case of a hate crime and other charges possible. It is possible with the hate crime the suspect may face up to three more years in prison. However, there may a couple of different defenses that may help him plead his case.

If you have questions regarding the details of your criminal case in San Diego, feel free to contact San Diego Criminal Attorney Vik Monder at 619-405-0063 or visit San Diego Criminal Lawyer .

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California Officers Allegedly Reselling Illegal Guns in Southern California

The head of ATF department in Los Angeles sent memos to police chiefs and Sheriffs that Police Officers are buying and illegally reselling guns. California Police Officers are allowed to buy certain firearms that are not obtainable by the general public.  However, the ATF is claiming that officers are buying hundreds of guns and then reselling them to the public who cannot legally own the gun. As most are aware, California is very strict on gun laws and who owns them, and what kind. The ATF also alleges that the officers are “Straw Purchasing.” This means that they bought the gun with the direct intent to resell it as soon as it came into possession for an inflated price. In addition, some of these firearms are being found at crime scenes. Which suggest they are now being sold. An interesting statistic by the ATF is that it takes on average 10 years from when the gun was bought legally to when it would be found in a criminal investigation. When a firearm is found quicker than that it hints at the possibility of straw purchasing. It was not stated how quickly the guns were found in police investigations though.  In 2015, a former Sheriff’s Deputy in sacrament was found guilty of reselling 25 guns illegally and received 18 months in prison. Thus, there is an ongoing investigation through police departments throughout the state concerning firearm sells.

            There are Federal laws that are applicable to the accusations by the ATF, however, we will look at the state laws regarding the selling of firearms. California Penal Code 26500(a) states that no person shall sell, lease, or transfer firearms without a license to do so.  Even then, the transfer must be for the type of firearm authorized under the permit. In California, a firearm is defined as any device, designed to be used as a weapon, from which is expelled through a barrel, a projectile, by the force of any explosion or other form of combustion. California Penal Code 16520(a). Moreover, this includes all types of firearms including pistols, revolvers, rifles, shotguns, and assault rifles. In regard to the rule, it plainly states that “no one shall sell, lease, or transfer firearms without a license to do so.” So, it would seem like a pretty simple case that the officers had acted illegally of the allegations are true because just transferring the guns would be in violation of the law. Thus, the rule seems plain and simple regarding the selling of guns.

            However, like most rules, there is an exception. Peace Officers may purchase and transport “non-roster” firearms. These are guns that are illegal for the public to buy in the state of California. Police officers can buy them legally and use them for their duty.  There are a lot of nuances involved when it comes to this crime because you have California requirement and the Federal Requirements regarding protocol. This is all concerning a licensed dealer to a qualified buyer. The Officers in the investigation were buying the firearms from a licensed dealer because they were being reported to the Federal government. This is known because the ATF was aware of the all the purchases by the Officers. In addition, because Police Officers have exemptions and higher authority they can buy most types of guns with zero waiting days since it is for work and they are considered professionals. This is not where the laws were broken.

            The law was being broken when the Police officers resold the guns that they had previously purchased. Some states allow individuals to sell firearms out of their homes, in newspaper ads, online, and even at garage sales. These unlicensed individuals are exempt from conducting background checks of their buyers. Because of this, it is possible they can sell guns to people otherwise not allowed to possess or own firearms. California, however, requires that all transactions involving firearms even those between private parties must be completed through a licensed dealer. California Penal Code 26705. Because of the strict California law, the officers making the firearm sale would have to have a dealer or licensed individual look over the sale run the background check and administer the entire process. Thus, this is to ensure people who cannot legally own a gun are not sold one.

People Who cannot own a gun are felons that are, anyone convicted of any felony offense in any jurisdiction, does not matter the state the felony was charged in, persons who are addicted to narcotics, persons with two or more convictions under Penal Code 417, California’s law against brandishing a weapon, persons convicted of certain misdemeanor offenses, persons who suffer from mental illness, and minors that is, anyone under 18. California Penal Code 29800(a)(1), 29805, 29610. In regard to the police officers selling guns that were found at crime scenes, it can possibly be concluded that people who are not allowed to buy a gun were possibly able to. Therefore, it is possible that the guns fell into the hands of those that were not legally allowed to have them.

For further clarification, for the police officers to legally sell their firearm they would have to have a person with a license to sell firearms present. For one to be licensed to sell firearms they must have a valid federal firearms license, any regulatory or business license or licenses required by your local government, a valid seller’s permit issued by the State Board of Equalization a certificate of eligibility issued by the Department of Justice “DOJ; a local one-year license issued by the authorized licensing authority in one of the following forms: a. in the form prescribed by the California Attorney General, b. in a regulatory or business license that clearly states “Valid for retail sales of firearms” and is endorsed by the appropriate licensing agency, or  c. in a letter by the appropriate licensing agency that states that the jurisdiction does not require a license to sell firearms and or does not restrict or regulate firearms sales. California Penal Code 26705. Because of the strict requirements, and all of the paperwork it is unusual for people other than dealers to be able to legally sell firearms. Furthermore, because of this rule if the police officers did not have someone with all of this paperwork the sale would not have been properly sold. Thus, it is required to have all of the proper paperwork in California to sell firearms.

The charge of illegally selling a firearm alone is a misdemeanor. The punishment is a one thousand dollar fine and up to six months in jail. It is also possible that each gun that is sold qualify as a separate count. California Penal Code 26500(b). However, there is always discretion in the punishment. As seen above the Sheriffs Deputy in Sacramento, California was sentenced to 18 months in prison when he illegally sold 25 guns. In addition, an important note from the article is that the ATF discussed the violation of Federal crimes which could possibly add on top of the state crimes or hold higher penalty depending on the police officer’s intent, and possibly the type of firearm being sold.

Therefore, the police officers do have more freedom when it comes to the overall purchasing of firearms, however, there are some exceptions when it comes to selling and the ATF has said that they will be conducting further investigations throughout the state.

If you are facing serious gun charges in San Diego, feel free to contact San Diego Criminal Lawyer Vik Monder to discuss the specifics of your case. Please visit San Diego Criminal Defense Attorney to learn more about your case or call 619-405-0063.