Appeals Court Rules Judges Can Compel Probationers To Waive Right Against Self Incrimination

It has long been settled that judges have broad powers to impose conditions of probation against those convicted of criminal acts. In this case the courts found that a Defendant who committed sex offenses may be required to waive his right against self-incrimination in order to receive probation. Defendant, who was 16 years old when he committed the offenses, pled no contest to two counts of lewd conduct on a child (Pen. Code, § 288, subd. (a)), and was placed on probation. Over defense objection, the court imposed sex offender probation conditions mandated by Penal Code section 1203.067, subdivision (b). These terms required defendant to complete a sex offender management program, to waive his privilege against self-incrimination and take polygraphs examinations, and to waive his psychotherapist-patient privilege. On appeal he claimed the required waiver of rights violated the Fifth Amendment, was overbroad, and was unreasonable.

The appeals court upheld the order. The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself.” But it “does not prohibit the State from requiring a prospective probationer to chose between accepting the waiver and going to prison.” The section 1203.067, subdivision (b)(3) probation condition does not itself compel a criminal defendant to bear witness against himself in a criminal proceeding; it requires only that the probationer provide full disclosure in connection with the sex offender program. The rule of the Fifth Amendment applies to the use of a defendant’s incriminating statements in a criminal proceeding, it does not bar the government from compelling those statements. Because the classic penalty exception would apply to any statements that defendant makes under compulsion of the probation term, those statements may not be used against him in a criminal proceeding. To the extent the condition impinges on defendants Fifth Amendment rights, it is narrowly tailored to the purpose of the condition—to facilitate his participation in the sex offender program and to determine whether he is committing additional offenses, in order to protect the public. The Fifth Amendment waiver condition serves the rehabilitative goals of probation. Without this compelled disclosure, “the program would not be Defendant who committed sex offenses may be required to waive his right against self-incrimination in order to receive probation. Garcia, who was 16 years old when he committed the offenses, pled no contest to two counts of lewd conduct on a child (Pen. Code, § 288, subd. (a)), and was placed on probation. Over defense objection, the court imposed sex offender probation conditions mandated by Penal Code section 1203.067, subdivision (b). These terms required Garcia to complete a sex offender management program, to waive his privilege against self-incrimination and take polygraphs examinations, and to waive his psychotherapist-patient privilege. On appeal he claimed the required waiver of rights violated the Fifth Amendment, was overbroad, and was unreasonable. Held: Affirmed. The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself.” But it “does not prohibit the State from requiring a prospective probationer to chose between accepting the waiver and going to prison.” The section 1203.067, subdivision (b)(3) probation condition does not itself compel a defendant to bear witness against himself in a criminal proceeding; it requires only that the probationer provide full disclosure in connection with the sex offender program. The rule of the Fifth Amendment applies to the use of a defendant’s incriminating statements in a criminal proceeding, it does not bar the government from compelling those statements. Because the classic penalty exception would apply to any statements that Garcia makes under compulsion of the probation term, those statements may not be used against him in a criminal proceeding.

The Fifth Amendment waiver condition of probation is not overbroad because it is closely tailored to its purpose. To the extent the condition impinges on Garcia’s Fifth Amendment rights, it is narrowly tailored to the purpose of the condition—to facilitate his participation in the sex offender program and to determine whether he is committing additional offenses, in order to protect the public.

The Fifth Amendment waiver condition is not unreasonable. In many criminal prosecutions The Fifth Amendment waiver condition serves the rehabilitative goals of probation. Without this compelled disclosure, “the program would not be able to identify the psychological or physiological factors” that caused the sexual offense. As many Torrance Criminal Defense Attorneys can attest, judges deem the interests of public safety as the justification to impose often harsh conditions on those it grants probation. It must be remembered that the grant of probation is one of clemency and is within the court’s discretion.

The compelled waiver of the psychotherapist-patient privilege does not violate his right to privacy and is not overbroad. The right to privacy may be abridged in furtherance of compelling state interests. Here, the State has an interest in protecting the public from his sexual misconduct and in monitoring his compliance with probation terms. As the condition does not require defendant to waive his rights beyond that necessary to monitor his progress in the program, it is not overbroad. Further, it is reasonably related to reforming and rehabilitating the probationer.

In this case the court went even further, requiring the accused to give up the privilege that most persons have with their doctors. The compelled waiver of the psychotherapist-patient privilege does not violate the accused right to privacy and is not overbroad. The right to privacy may be abridged in furtherance of compelling state interests. Here, the State has an interest in protecting the public from defendants sexual misconduct and in monitoring his compliance with probation terms. As the condition does not require the criminal defendant to waive his rights beyond that necessary to monitor his progress in the program, it is not overbroad. Further, it is reasonably related to reforming and rehabilitating Garcia. (CCAP)

Torrance Attorney, Matthew Ruff is a criminal lawyer focusing on serious felony and misdemeanor matters in California.

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A Police Officer’s Conclusions Concerning A Traffic Stop Do Not Satisfy Fourth Amendment Requirements

It is well settled that in order for the police to pull over and detain a motorist that there must exist a “reasonable suspicion” of criminal activity. That inquiry is not satisfied by the officer’s statement of mere conclusions about the reason for the stop. The Federal Courts have consistently held that a failure to establish that basis by way of facts will result in evidence being thrown out. Such is the case of a recent opinion by the 9th Circuit Court of Appeals.

The Court opined: In a Fourth Amendment analysis, mere conclusions of the police officer do not establish probable cause justifying an exception to the Fourth Amendment and an officer’s investigatory motive for vehicle impoundment is relevant to the validity of the community caretaking exception. While conducting surveillance on a suspected stash house, officer Henkel observed appellant enter and then leave, holding a large white box. He placed the box in his truck and drove away. Henkel monitored him over the next few hours and eventually asked a police unit to develop a lawful reason to conduct a traffic stop. The police officers stopped appellant for failing to come to a complete stop. The officers impounded the vehicle, searched it and found the white box which contained two kilograms of cocaine.

Appellant was arrested and taken into custody only after the vehicle was impounded and the inventory search had resulted in the discovery of cocaine. At a subsequent suppression hearing, Henkel made a conclusory statement that the white box came from a “suspected narcotics stash house.” He also testified that appellant’s driving was “counter-surveillance,” indicating drug trafficking. The appellate court found that Henkel’s conclusory statements were akin to an anonymous tip and entitled to little (if any) weight in determining whether there was reasonable suspicion to stop the vehicle. As to Henkel’s belief regarding appellant’s driving, the described driving was consistent with innocent behavior and insufficient to establish probable cause. Finally, the court noted that the community caretaking exception to the Fourth Amendment did not justify the search. Under the community caretaking exception to the Fourth Amendment, police can impound vehicles that jeopardize public safety and search them per department policy. But an inventory search cannot be a ruse for a general rummaging to discover incriminating evidence and the officers’ motive in conducting the impound are relevant. Because the evidence here reflected that the impoundment was a pretext to search for narcotics, the community caretaking exception did not apply. The denial of appellant’s motion to suppress was reversed.

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Court Rules Restitution For DUI Is Limited

It is commonplace for restitution to be ordered in a Torrance DUI case, particularly when injury results. In this case, the courts limited the time in which a victim can be compensated. The facts of the case are as follows:

The accused, a person named Hilton, drove a vehicle which struck Tellez, a pedestrian. Pursuant to a plea bargain, Hilton pleaded no contest to driving under the influence and was placed on probation in April 2008. He was ordered to pay $3,215 in restitution to Tellez, which he paid in full. Tellez then filed a civil lawsuit against Hilton, which was settled for $3.5 million. In November 2012, more than a year and a half after Hilton’s probation expired, Tellez filed a motion seeking more than $886,000 in additional restitution, mostly for attorney’s fees and lost wages. The trial court held that its prior restitution order was an unauthorized restitution order that could be corrected at any time, and that the issue of restitution could be reopened. Hilton filed a petition for writ of mandate. Held: Petition granted. Under former Penal Code section 1203.3, subdivision (a) and In re Griffin (1967) 67 Cal.2d 343 and its progeny, a trial court loses jurisdiction over the defendant and must discharge him from probation once the probationary term expires. Section 1203.3, subdivisions (b)(4) and (5) reflect the Legislature’s intent that trial courts will not have jurisdiction to impose restitution once the probationary term has expired. Here, Hilton fulfilled all the conditions of his probation, including payment of the restitution order, and his probationary term expired in April 2011. After this time, the trial court did not have jurisdiction to impose additional restitution and its ruling in April 2013 that it did have jurisdiction was erroneous. The trial court also erred by relying on People v. Brown (2007) 147 Cal.App.4th 1213 to conclude that the original restitution award was unauthorized. The appellate court rejected the People’s arguments that the California Constitution, former Penal Code section 1202.4, subdivision (f), and Penal Code section 1202.46 authorize imposition of restitution once probation has expired. ( courtesy of CCAP )

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Appeals Court Denies Motion to Dismiss On Speedy Trial Grounds

The Constitution in this country gives those accused of a criminal charge the right to a speedy trial. This means that the government must prosecute the case quickly and avoid unnecessary delay. In some cases, charges are filed but the accused is unaware of the case because he or she is no longer in the country. In these cases, the prosecutor must make reasonable efforts to effectuate the defendants right to a speedy trial.

In this case, the courts denied the motion to dismiss on the grounds that the district attorney failed to prosecute the case within constitutional parameters. Here are the facts, courtesy of CCAP: In 1976, a complaint alleging murder was filed against appellant and a warrant for his arrest issued. After October 1976, the police made no efforts to find appellant until 2009 when they received a tip from the FBI that appellant was in Texas. He was located and arrested and returned to California. Following two mistrials, he was convicted of first degree murder in 2011 at his third trial. On appeal, appellant contended that the 33-year delay between the filing of the criminal complaint and his arrest violated his state right to a speedy trial and his state and federal due process rights.

The appeals court upheld the conviction for the following reasons: The California Constitution guarantees the right to a speedy trial. Due process of law also bars prejudicial delay in bringing a defendant to trial. Both rights are triggered with the filing of the complaint. To prevail on either of these grounds, the defendant must first show prejudice caused by the delay and, if he does, the burden shifts to the prosecution to justify the delay. The court then balances the harm against the justification. However, a defendant who flees the jurisdiction of a court for purposes of avoiding prosecution waives the right to a speedy trial and the balancing test does not come into play. The court rejected appellant’s argument that he did not waive this right because he did not know charges were pending against him until he was arrested. Here, substantial evidence was presented at the preliminary hearing that appellant was aware that he was subject to prosecution when he fled to Mexico immediately following the killing. Although charges had not been filed against appellant when he fled, his actions after the killing demonstrated his knowledge that he would be prosecuted for the murder and he actively sought to avoid this result.

At this point, the defendant will have to pursue his claims in the California Supreme Court or file appeals in the federal courts in order to seek relief.

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Torrance DUI Attorney Saves License With Forensic Evidence

We see forensic evidence being used in criminal cases such as murder, but what about DUI cases? Torrance Attorney Matthew Ruff did just that in a recent case involving a client who worked for a major utility company, had a a commercial license that was in jeopardy of being lost if he lost the case. Here is a summary of the facts:

The client was stopped on the 605 freeway by CHP for speeding and weaving. He was asked if he had been drinking and admitted to consuming wine earlier in the evening. He was given various FST exams and, according to the officer, failed those tests. A breath test was administered in the field which displayed a .11 and .12, he was promptly arrested.

While at the station the client submitted to another chemical test which was consistent with the first BAC tests out in the field. He was booked, his license was confiscated and he spent the night in jail. Upon release he was issued a Court date and a DMV document that explained he was facing a mandatory 4 month suspension of his non-commercial driving privilege and a 1 year suspension of his commercial license which he needed for his job.

The client called around looking for a lawyer that could help. He then spoke to a co-worker who had a similar dilemma years earlier and was represented by Matthew who agreed to take his case.

During the investigation of the facts if the case, Matthew concluded that the client was a classic “rising blood alcohol” as it related to his true BAC at the time of driving. Here’s why: The client drank wine earlier in the evening, his last drink was within an hour of his stop and arrest. He drank nothing prior to that in the day. His alcohol consumption fit a pattern that put him in the absorptive phase of impairment. This meant that although his breath results were high at the time of his arrest and later at the station, at the time of driving he was much lower.

You see, under California law all that is important in DUI cases is what the driver’s blood alcohol level was when he was behind the wheel moving. Although there is a presumption that the motorist was the same BAC while driving as he was at the time of the test, that presumption is rebuttable, meaning that if the lawyer presents affirmative evidence that the accused was rising, that is admissible to bring him below a .08. In this case, the evidence was brought in via a forensic toxicologist who opined that the client was actually a .06 when he was stopped and lated climbed to the levels depicted by the breath machine.

As a result of this forensic testimony, the DMV set aside the license suspension and took no action against the client’s commercial driving privilege.

Torrance DUI Attorney, Matthew Ruff has nearly 20 experience defending drivers accused of all alcohol related offenses. This case represents one of many legal defenses that can be utilized in a criminal or administrative proceeding.

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Court reinstates possession of heroin charges

Judges will often throw out charges that they think are insufficient, in this case a judge did just that but the DA appealed and got the charges reinstated.

The accused was charged by complaint with possession of heroin for sale and other offenses. At the preliminary hearing the magistrate found the evidence insufficient to bind appellant over on possession for sale and held appellant to answer on simple possession. The prosecution filed an information which reinstated the possession for sale count (Pen. Code, § 739). Appellant moved to dismiss under section 995. The court, believing itself bound by the magistrate’s finding, granted the motion. The prosecution appealed. The appeals court agreed with the DA. At the preliminary hearing, the prosecution’s expert opined the heroin was possessed for sale, based on the quantity possessed. The magistrate found the expert credible but that quantity alone was insufficient indicia of sales. In ruling on the section 995 motion the court did not find that the magistrate made factual findings, but felt it was bound by the magistrate’s sufficiency determination. When a defendant challenges a charge under section 995, the character of review depends on whether the magistrate made findings of fact. If so, those findings are conclusive if supported by substantial evidence. If not, a reviewing court cannot assume the magistrate resolved factual disputes or made credibility determinations; the matter is reviewed independently. On review by writ or appeal, the appellate court disregards the superior court’s ruling and reviews the magistrate’s holding order. Here, the superior court mistook the scope of its review because the magistrate did not make factual findings—thus, its holding was subject to independent review. There was no evidence offered to impeach the credibility of the prosecution expert, whose testimony was sufficient to support a probable cause finding on possession for sale. (Thanks to CCAP)

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Appeals Court Restricts City’s Ability To Make Laws Regarding Sex Offenders

California has some of the toughest laws for sex offenders in the country. In this case, the city of Irvine attempted to limit the travel of those convicted of certain sex crimes, the Courts shot them down. The defendant was charged with a criminal statute at the municipal level.

The prosecutor appealed from a judgment sustaining a demurrer to a misdemeanor complaint charging the accused with violation of a City of Irvine ordinance prohibiting registered sex offenders from entering city parks without written permission from the city’s police chief. The trial court concluded that state law preempted prosecution under a local ordinance because the Legislature has enacted a comprehensive statutory scheme regulating the daily lives of sex offenders. The appellate court agreed and affirmed. The state statutory scheme imposing restrictions on a sex offender’s daily life fully occupies the field and preempts the City of Irvine’s effort to restrict sex offenders from city parks and recreational facilities. (CCAP)

This case exemplifies the lengths cities will go to be tough on sex offenders requires to register in California. This case will provide some guidance to them when enacting criminal statutes that relate to sex offenses.

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