Orange County Criminal Attorney Blog

Michael Lallana has been charged with six misdemeanor counts stemming from a workplace incident involving a water bottle. It is alleged Mr. Lallana, on two occasions, entered the office of a coworker (known only as Jane Doe) and adulterated her water bottle with bodily fluids.

After the first alleged incident, Jane Doe became ill. After the second incident, Jane Doe took the bottle to a private lab. The test results were positive for semen. Police were later able to link the semen to Mr. Lallana through DNA.

Even though the charges against Mr. Lallana are misdemeanors, the maximum exposure is three years with a possible sex offender registration requirement. It is rare this type of case comes through the criminal justice system. While there appears to be little physical injury, there is emotional injury. The victim in this case feels justifiably violated. The question in this type of case, however, is what is the appropriate penalty assuming Mr. Lallana is guilty? Would this kind of case call for the same amount of jail time that a physical battery, say a punch in the nose, would? It is important to keep one's perspective when representing an individual charged with one of these rarely seen, but often emotional, cases.

THE ORANGE COUNTY SHERIFF AND OTHER LOCAL AUTHORITIES VOICED CONCERN OVER THE STATE'S EARLY RELEASE OF THOUSANDS OF PRISON INMATES.

ACCORDING TO REPORTS, THE SHERIFF BELIEVES WHILE THE RELEASE WILL LESSEN COSTS TO THE STATE IT WILL, IN TURN, BURDEN THE BUDGETS OF LOCAL AGENCIES. AS OUTLINED, THE RELEASE PROGRAM WILL ENABLE INMATES TO EARN CREDITS TO REDUCE THEIR TIME BY PARTICIPATING IN SUCH THINGS AS FIRE FIGHTING AND DRUG PROGRAMS. IN ADDITION, ONCE RELEASED, INMATES WILL NOT BE SUBJECT TO SUPERVISED PAROLE AND/OR TECHNICAL PAROLE VIOLATIONS.

THE PROGRAM DOES SEEM TO HAVE SOME FEATURES WHICH ARE FAVORED BY LOCAL AUTHORITIES, SUCH AS GPS SUPERVISION OF PAROLEE GANG MEMBERS AND 2000 ADDITIONAL ELECTRONIC DEVICES TO BE USED AS AN ALTERNATIVE TO INCARCERATION FOR PAROLE VIOLATORS. THE SHERIFF, WHO HAS HER OWN BUDGET PROBLEMS, HOWEVER, ANTICIPATES THIS MOVE WILL ULTIMATELY RESULT IN AN INCREASE IN COUNTY JAIL COSTS AS THE NUMBER OF FELONS IN THE JURISDICTION WILL INCREASE, THEREBY, LIKELY INCREASING THE AMOUNT OF CRIME AS WELL.

IT IS THE OPINION OF THIS WRITER THAT THE SHERIFF'S ARGUMENT AGAINST EARLY RELEASE IS FLAWED. WITH THE COST OF WAREHOUSING MANY NON-VIOLENT INMATES RISING, IT IS FOLLY TO ARGUE THAT UPON RELEASE THESE INDIVIDUALS WILL AUTOMATICALLY END UP IN LOCAL JAILS. A BALANCING ACT MUST BE DONE BETWEEN PROTECTION OF THE PUBLIC AND THE COST TO THE PUBLIC. THE TIME FOR DISCUSSION IS NOW.

Effective July 1, 2010, a new California law applicable in four counties requires those convicted of driving under the influence to install a breathing tube and ignition interlock device on their vehicles.

The installation of this device, which prevents the vehicle from starting if alcohol is detected on the person's breath, will be required of all first-time and repeat offenders in the Counties of Alameda, Los Angeles, Sacramento and Tulare.

The cost to the DUI offender is estimated to be $125 for installation, $60 per month for maintenance and $45 for administration fees. A low-income program, however, is available for those who cannot afford these fees.

...More fees for the State of course! As narcotics are not detected with these devices, I wonder if people will switch from beer to marijuana?

In a 1999 decision, a California appellate court ruled that a detainee's refusal to consent to a pat-down search does not constitute the reasonable suspicion needed to justify such a search.

The case involved a juvenile detained by an officer for improper lighting on his bicycle. By all accounts, the juvenile was cooperative until the officer told him he was going to conduct a pat-down search. At this point, the juvenile refused to consent to the search. Nonetheless, the officer proceeded with the pat-down, finding a revolver in the juvenile's jacket pocket.

The court reversed the subsequent conviction indicating the reasonable suspicion required to justify the search could not be created by the detainee's attempt to exercise his 4th Amendment rights. Further, the court found, under a totality of the circumstances standard, no other specific facts existed to lead the officer to believe the juvenile was armed and dangerous.

Once it is okay to violate a person's rights because of the exercise of the right, we are in trouble!

Police departments throughout Orange County will be upping the number of DUI checkpoints this holiday season, and in 2010, thanks to recent state grants totaling over $400,000.

This increase in sobriety checkpoints is part of a statewide effort to target drunk drivers as well as people with outstanding warrants and suspended licenses. According to reports, in order to obtain the money, cities must agree to execute at least one checkpoint per month and otherwise increase efforts to combat drinking in driving during the Christmas-New Year holiday and Labor Day weekend. Costa Mesa, Fullerton, Irvine, Orange and Westminster are among several Orange County cities on board to participate.

While over 200,000 DUI arrests were made last year, Orange County ranked high in the number of alcohol-related accidents involving death or injury. In fact, Santa Ana ranked 5th highest in this category among California's largest cities.

The real issue regarding checkpoints is cost-effectiveness. If all of the officers tending a checkpoint were released to patrol, would this increase police presence as well as DUI arrests? Statistics on this would be revealing.

Charges of drunken driving were dropped against a 54-year-old Dana Point woman after it was determined she was "not lawfully arrested." According to the Newport Beach officer's report, the woman was stopped in March 2009 for having a broken rear license plate light. The arresting officer (a second officer was waiting in the patrol car) indicated he observed the objective symptoms of intoxication, including the odor of alcohol and bloodshot eyes, while speaking with the woman. A breath test subsequently yielded a .12 blood alcohol level and the woman was arrest for suspicion of driving under the influence.

As discovered during DMV proceedings, however, the patrol car's own video "clearly demonstrated" the light was on and functioning properly. No probable cause, thus, existed for the stop making the arrest unlawful. While comments are not forthcoming from city officials, the city did agree to reimburse the woman for her attorney's fees and towing costs.

Additional training of this peace officer might also alleviate the need to waste taxpayers' money.

POSSIBLE WAYS TO BE STOPPED FOR DRUNK DRIVING OR DRIVING UNDER THE INFLUENCE:

While everyone is familiar with the typical probable cause(s) for a DUI stop (i.e., weaving), CVC 23111 provides that "no person or no pedestrian shall throw or discharge from or upon any road or highway or adjoining area, private or public, any lighted or non-lighted cigarette, cigar, match or any flaming or glowing substance."

Although this section appears to be self-explanatory, the question exists: "Does this apply to flicking an ash out the window?" At night, this action can be viewed from a long distance.

A man's drug conviction was overturned by a California Appeals Court because the Orange County Sheriff's Department conducted a search of the man's vehicle based upon his passenger being on parole. Although the parolee may not have had an expectation of privacy, the owner of the vehicle did.

In criminal law, motions to suppress evidence are an often used tool in defense of drug-related cases. While these motions may be used in driving under the influence, domestic violence or theft cases as well, an experienced attorney must pay special attention to drug cases.

The United States Supreme Court heard arguments in late 2009 concerning the Miranda warning and the nature of one's right to an attorney. The issue centers on a case involving a Florida man convicted of possession of a firearm. At the time of his interrogation, the man signed a written waiver of rights which included the phrase "You have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning. You have the right to use any of these rights at any time you want during this interview." The man subsequently confessed to buying the gun on the street for protection.

At the heart of the defendant's argument is the assertion he was of the belief he no longer had the right to an attorney and/or to have an attorney in the interrogation room once the questioning began. The lower court ruled in his favor and overturned the conviction, finding the police did not adequately make clear to the defendant he had the right to have an attorney with him during questioning.

By all accounts, it appears Justices Breyer and Sotomayor may be leaning toward upholding the lower court's ruling, questioning the clarity of the advisement given to the defendant. Justice Scalia, however, is not so convinced likening the defendant's argument to "angels dancing on the head of a pin."

This case is but one of three Miranda warning cases currently before the court. It is anticipated rulings in these matters will be handed down this year. Miranda rights resulted from the 1963 case of Ernesto Miranda who was convicted of kidnap and rape after confessing to police. In 1966, the United States Supreme Court ruled the confession could not be used as evidence against him because he had not been advised of his rights.

Many of the Miranda warning cases could be resolved if warnings were not only made clear, but officers would require clear responses from suspects as well.

Calling a contrary California Supreme Court ruling in a prior case "wrong", the 9TH Circuit Court held in 2009 that warrantless entry into a home for the purpose of executing a misdemeanor DUI arrest is not justified under the Emergency/Exigent Circumstances exceptions.

According to the Court, whose interpretation of the 4th Amendment in this case fell in line with that of the United States Supreme Court, there must be an objectively reasonable belief that an immediate need to protect an occupant from serious harm exists...and, in this case, the officer's claim he entered the home to make sure the driver was not injured in the accident was "absurd" considering the law enforcement report noted there was no damage to the vehicle. The Court further rejected the officer's alternate argument he entered the home without a warrant because he "believed" the man may be suffering from a diabetic coma.

In its decision, the Court explicitly stated that a minor hit-and-run accident without injury does not sanction a warrantless entry into a home. Additionally, the Court noted, as required under the principles of the Federal Constitution, an officer must have independent probable cause to lawfully affect an arrest authorized by a private citizen pursuant to California Penal Code Section 837.

A recent investigation conducted by the Investigative Reporting Program at UC Berkeley and California Watch has found DUI checkpoints in California are more effective in increasing profits for a number of police departments than in catching drunken drivers.

According to reports, in 2009, many checkpoints actually netted more car impounds from unlicensed drivers than arrests related to driving under the influence. In fact, the number was up 53 percent from 2007. The towing fees and police fines related to these impounds amounted to approximately $40 million dollars. In addition, the crackdown on DUIs generated an estimated $30 million in overtime pay to police officers.

The investigation also revealed the majority of these impounds involved minority drivers, many illegal immigrants. It has been suggested this is due to police frequently conducting checkpoints in and around neighborhoods with a predominantly Hispanic population. Whatever the reason, such impounds seem at odds with a 2005 federal appellate court ruling preventing the police from impounding cars solely based on the driver being unlicensed.

One person was arrested for driving under the influence when Irvine police conducted a DUI checkpoint recently. Out of 301 stopped vehicles, 5 sobriety tests were performed.

What is interesting about these numbers is not that only 1 person out of 301 stopped was arrested for drunken driving, but that 4 sober people were given sobriety tests. Given these numbers, the police were right 20% of the time about the need to do a field sobriety test. Not a very high ranking for individuals who are trained to make these observations.

Since the beginning of 2010, all Orange County in-custody cases are being heard in the newly established courtroom at the Central Men's Jail known as CJ1. The Central and Harbor Justice Centers first made the transition in October 2009 while the North and West Justice Centers followed in November 2009.

This policy applies to all misdemeanor and felony cases in which the defendant is in-custody, includIng assault and battery, drunk driving, drug offenses, theft, fraud, sex offenses, domestic violence and hit and run, to name but a few. Proceedings not heard in CJ1 include continued arraignments, felony probation violations, arraignments on informations, PC 1000 and PC 1210 violations and Anaheim video arraignments.

The courtroom is fully staffed with a judge, Deputy District Attorneys, clerks and detention release officers. It also provides access to the court proceedings via a public viewing area.

As to whether this new system will ultimately help or hurt the criminal defendant or
assist in more efficient court operations...only time will tell.

In a motion to set aside a grand jury indictment against Andrew Gallo, counsel for the defendant argued the defendant did not plan to drive, but rather, had a designated driver. Andrew Gallo has been charged with driving under the influence and killing Angels pitcher Nick Adenhart and two other individuals.

To avoid being arrested for driving under the influence, people often rely on the designated driver. There is really no other area of law, be it domestic violence, theft, drug crimes or what have you, in which people put their own freedom in the hands of an independent 3rd party. Unfortunately, the designated driver is under the same pressure to join the party as everyone else. A person must possess near superhuman powers of self-control in order to be on "guard duty" for a group of drinkers.

As stated in Mr. Gallo's paperwork, the designated driver got drunk, thus, Mr. Gallo drove. It might be better to call a ride than to depend on the services of a designated driver.

The United States Supreme Court is at odds over whether juveniles should
be subject to life sentences without the possibility of parole (LWOP).

The issue stems from two cases currently before the Court involving men
sentenced to LWOP in Florida for violent crimes committed when they
were teenagers. One man raped an elderly woman when he was 13 while
the other was convicted for armed robberies committed when he was 16
and 17.

Attorneys for both argue such a sentence is cruel and unusual
punishment as juveniles have a greater capacity to change, thus, should
be given a second chance.

The quandary dividing the Court, however, is not new one. Rather, it is
one long debated within the juvenile criminal justice system. That is, how
do we reconcile the historical goal of rehabilitation with the violent, often
gruesome, nature of the juvenile's crime?

While the Court has previously rejected the application of the death
penalty for juvenile offenders, finding them to be less responsible than
adults, it seems hard-pressed to unanimously extend this relief when it
comes to locking a juvenile away for life.

As stated by Justice Alito, "Some of the actual cases are so horrible that I
couldn't have imagined them if I hadn't actually seen them." Conversely,
Justice Bader-Ginsburg raised the question of whether teenagers, whose
mental, emotional and physical maturity is incomplete, can be "accurately
evaluated" at the time of sentence.

Regardless of the Court's decision, this is an issue not likely to
be fully resolved anytime soon.

To anyone who has traveled in Southern California, traffic jams are a part of everyday life. The traffic jam Northern China is now experiencing, however, dwarfs anything Southern California has ever seen. The traffic jam, nearly 60 miles long and expected to last almost 3 weeks, has had some motorists stuck in their cars for 5 days. The truly amazing thing about this mammoth gridlock is the lack of violent road rage. No assaults, batteries, domestic violence or even theft incidences have been reported. I shudder to think what would have happened had this occurred in L.A.

A 2009 Supreme Court ruling made it unconstitutional to conduct a warrantless search of a vehicle, without probable cause to believe said vehicle contains evidence linked to the arrest, in cases where the driver was in custody and without immediate access to the car's interior.

While promising in theory, law enforcement will likely get around this restriction by simply providing a host of new boilerplate explanations to justify such vehicle searches.

The United States Court of Appeals recently upheld a sentence imposing a lifetime term of supervision for a convicted pedophile.

The case, which stemmed from a law enforcement sting designed to target adults using the Internet to solicit sexual acts with minors, involved a man charged with "traveling with the intent to engage in a sexual act with a juvenile." The defense argued the defendant did not intend to engage in sex acts with a juvenile, but rather, intended only to engage in role-playing with an adult female pretending to be a child. The defendant, however, was convicted and sentenced to a five year term with five years of supervised release.

The conviction was subsequently overturned due to the improper admission of evidence. At retrial, the defendant was again convicted. This time, though, the court imposed a sentence of lifetime supervised release. The defendant appealed this harsher sentence claiming it was a vindictive sentence which should be reversed in favor of the original five year term of supervised release.

On review, the U.S. Court of Appeals upheld the sentence finding such a sentence is not vindictive when "grounded in evidence and designed to protect the public." In outlining their decision, the court stated:

"To be vindictive and thus impermissible, a sentence must be designed to punish the individual for exercising a protected statutory or constitutional right. Also, there must be a reasonable likelihood that the sentence was the product of actual vindictiveness."
In considering the present case, the appellate court found these circumstances did not exist given 1) the prosecution sought the same sentence in both trials, 2) the defendant, a magician with access to minors, was likely to reoffend, and 3) the trial court found his defense to be disingenuous. Thus, the trial court was proper in imposing the sentence.