Should California's Three Strikes Law be Reformed?

Most of the country thinks California is a very liberal, relaxed, surfer-dude kind of place. But California criminal attorneys and California politicians know that is not so. Over the years, California has imposed some jail and prison sentences that would make the allegedly tough Texans seem like they are running day-spas.

Since 1994, California has proudly boasted that it has the toughest Three Strikes Law in the country. Until then, California judges were seen as being “soft on crime”. The new law took away the judge's ability to use discretion when sentencing a criminal defendant. As a result, the new law made any felony a potential life sentence if the defendant had two serious felonies or “strikes” at any other point in their lives.

The new law listed serious and violent felonies in Penal code sections, 1192.7 and 667. The list had other felonies added to the list every year just to give legislators something to earn their pay and lawyers more laws to memorize.

To get an idea of this law's effect, let's look at the profile of a potential “Three Striker” defendant under the law we have now. As a young man of 18, this defendant entered a supermarket or convenience store and stole a case of beer on a fraternity dare. When he tried to get away, he was chased by the security guard, and got into a fight over the stolen beer. The security guard got several bruises, because the defendant fought with him while holding onto his “prize”.

This bona fide factual scenario is called an “Estes robbery”, named after a legal case which held that if a thief uses force against the victim to hold onto stolen merchandise, a petty theft can be converted into a robbery. A robbery is of course a violent crime and a strike.

Let's say that a year or two later, this young hard-headed, beer-drinking defendant were to get into a fight, and caused the person he was fighting serious bodily injury, such as a broken nose, a fractured cheekbone, and lacerations requiring stitches. He would now have his second strike and be sentenced to prison for at least 4 years.

Fast forward a few years to where this defendant is now a hard-working, 50-year-old father, who has not been in trouble for 30 years. If this same man were to commit ANY kind of felony (not just something classified as a serious felony) — such as stealing anything, or being in possession of any amount of drugs other than marijuana, or deciding to go hunting with his buddies when he is not allowed to have a rifle in his possession — then this 50 year old man would be sentenced to 25 years to life under the Three Strikes Law.

When this defendant turns 60 or 70 (take into consideration that he may NOT have changed ALL his ways, such as still being a drug abuser or an alcoholic), and you have an older person with more severe health problems in custody, like a failing liver. Heck, if he was out of jail or prison and just sat at home eating a lot of hamburgers and French fries and drank a lot of soda, while watching games on the sofa, he may have heart problems, high blood pressure, Type 2 diabetes.

Defendants with medical problems who are “lifers” because of California's Three Strikes Law are VERY EXPENSIVE to taxpayers. Even if the public wants to lock up criminals and give them bread and water, the 8th Amendment to the U.S. Constitution outlaws “cruel and unusual punishment”. That means if an inmate gets sick, he must be cared for. If his condition is dangerous, he may need surgery and rehab just like regular older people who are not in prison.

The Public will have to decide in November 2012, if it is better to be the toughest state on crime, and continue to have prisons with geriatric wards, or to change the law, to at LEAST require that the third strike should also be a serious or violent felony. That way, if the frat-boy, who's now grown up, bald, and fat gets into trouble a third time, he will at least have to commit a serious crime (not just something that can be classified as a felony) to land in the prison geriatric ward.

If you or someone you know have been accused of a crime, arrested, or contacted by police, contact San Jose criminal defense attorney Maureen Baldwin at (408) 279-4450 to learn your options today!

When a Friend or a Loved One is Arrested

When someone gets arrested for allegedly committing a crime, it can be scary - not just for the person arrested, but for his or her family and friends as well.

If this happens to someone you know, don't panic. Try to contact an attorney as soon as possible.

When calling an attorney, it's helpful to have:

The full name and date of birth for the person arrested;

Which law enforcement agency arrested him or her. (For example, San Jose Police Department, Santa Clara County Sheriff's Office, etc.)

His or her booking number and PFN. You can get this information from the Santa Clara County Jail's Inmate Locator.

Don't be afraid to talk to more than one attorney to get an opinion. You can find some helpful tips on choosing an attorney here.

If you or someone you know have been accused of a crime, arrested, or contacted by police, contact criminal defense attorney Maureen Baldwin at (408) 279-4450 to learn your options today!

How to Choose the Right Criminal Defense Attorney

Choosing the right criminal defense lawyer can be difficult. After all, your lawyer’s ability to defend your case can be the difference between a fine or jail time. When choosing the right attorney:

Do Lots of Research Beforehand

Ask around and see if you can get a referral. When you have some names, start looking online. First and foremost, you should check the Website for the State Bar of California. This will show you whether the attorney is a specialist or has ever been disciplined. Also check your local bar association and sites like yelp.com and avvo.com for reviews by other people.

Does the firm have a website? Check out how informative it is. Does it say how long the attorney has been practicing? What is their background? How experienced are they with your kind of case?

It is important to find a lawyer that has experience specifically dealing with the types of charges you are facing. For instance, some attorneys specialize in defending people against domestic violence charges, or charges relating to petty theft. Although nothing is guaranteed, the more experience the attorney has with situations similar to yours, the more likely it is to get a favorable result.

Go For a Consultation

Always set up an initial consultation to see if you like the attorney, and bring as much information about your case as possible. Note how they interact with you. Does the attorney seem to be listening closely? Is he or she asking you questions about your case? Does he or she give you an idea of how the prosecution might argue its case? How does the attorney’s staff treat you?

Don’t be afraid to get a second (or third) opinion before you sign a fee agreement. You should never feel pressured into hiring a specific attorney. After all, if you don’t like or trust the attorney handling your case, chances are the judge or jury won’t like them either.

Understand there are No Guarantees

A good lawyer understands that unexpected factors can throw even the strongest case out of whack. In fact, giving a guarantee may violate the California State Bar Rules of Professional Conduct. (See e.g., Rule 1-400). Ask the attorney to give you an idea of anything that may hurt your case, or whether there is anything the prosecution might be able to use against you.

If you or someone you know have been accused of a crime, arrested, or contacted by police, contact San Jose criminal defense attorney Maureen Baldwin at (408) 279-4450 to learn your options today!

When Your Car, Truck or RV Gets Impounded in “Vehicle Jail”

For about 20 years, provisions in the California Vehicle Code require a vehicle to be impounded in “vehicle jail”as it were, for 30 days at the owner’s expense where a motorist is driving with a license suspended for unpaid moving violations, DUI, or a host of other reasons.

Note that this section of the Vehicle Code applies to the owner of the car. That means if let a friend drive your car, and your friend is stopped for driving on a suspended license, YOUR car can be towed and impounded for 30 days. In addition to the difficulty that this creates in transportation, it is also very EXPENSIVE, costing about $1000 to get your car "out of jail" after the 30 day period. Many vehicles have been left to the tow yards and have been auctioned because the owner can’t afford to get it back!

The California Attorney General recently issued an opinion that a local police department DOES have the right to bend that rule if it so chooses. In other words, the 30-day requirement to impound the car, truck or RV in “vehicle jail” where the motorist drove on a suspended license is not mandatory. An opinion issued by the California Attorney General is not subject to enforcement like a law or a court decision. But since, the Attorney General is responsible for law enforcement in the state, a published opinion is like a memo from the boss!

If you or someone you know have been accused of a crime, arrested, or contacted by police, contact San Jose criminal defense attorney Maureen Baldwin at (408) 279-4450 to learn your options today!

Be Careful What You View Online

According to the news headlines, it looks like it is now legal to view child porn in New York! But viewing and possessing child porn are two different things. Possession of child porn is still very much illegal in New York, California, and the rest of the country.

Earlier this month, the Court of Appeal in New York issued a decision in People v. Kent, holding that a defendant did not violate the law when images of child porn were found in his computer. As most people who use the internet are aware, a person can download an image, a song, a story, or you can simply look at it and move on.

In Kent, the court ruled that downloading child porn means you possess it, which violates the law. But if the images are merely on the computer memory cache, the user does not physically possess them or have "dominion and control" over them. Hence, it is legal.

Laws like California Penal Code section 311.11 also prohibit possession of child porn. However, unlike New York law, California law does not distinguish between images that are downloaded vs. images that are simply in the computer memory cache. Simply viewing the images while surfing online is considered illegal possession of child pornography. That means that under the California Penal Code, the same conduct that is now legal in New York will land the offender in jail and on Megan's Law in California!

If you or someone you know have been accused of a crime, arrested, or contacted by police, contact San Jose criminal defense attorney Maureen Baldwin at (408) 279-4450 to learn your options today!

When Officers Search Your Cell Phone Without a Warrant

Cell phones are appearing more and more often in court cases. Since almost everyone from great-grandma down to the kids have cell phones, this is not surprising. The current law in California is that a cell phone is to be treated like any other closed container in a search.

What does that mean? It's complicated.

Searches without a warrant most often happen at a time when someone is being detained or arrested. If an officer stops someone in his or her car for a possible DUI, for example, the vehicle is generally searched "incident to arrest". That means when you are arrested, the police can search the area immediately around you when they make the arrest. If you are driving that area is your vehicle.

Recent cases have treated cell phone searches the same as a search of a backpack or a glovebox in the car, or a purse. In fact, last year, California Governor Jerry Brown vetoed a bill that would have required police to get a search warrant before going through a suspect’s cell phone at the time of arrest.

Officers go into the cell phone and often find a treasure trove of incriminating information in a person's texts. Texts that relate to drug sales, texts or photos with gang slogans, and texts telling your significant other that you are so angry that you will kill him/her are pretty obvious examples of items on cell phones that can get a DUI driver into a lot more trouble than the beers consumed at the bar.

Cell phones also appear often in domestic violence cases. An obvious example is texts or calls to a spouse's phone when that spouse has a restraining order against the arrestee. Often though, a cell phone can actually lead to a domestic dispute.

A boyfriend, girlfriend, husband or wife who suspects his or her partner is cheating may grab for the phone in an argument. The fight over trying to find out who the other person has been texting or friending can easily become physical where both are trying to grab or guard the phone. And when emotions are high, it’s more likely someone will call 911. Cell phones have landed LOTS of people in jail in the last 5 years!

If you or someone you know have been accused of a crime, arrested, or contacted by police, contact San Jose criminal defense attorney Maureen Baldwin at (408) 279-4450 to learn your options today!