New California Law Makes It A Felony For Prosecutors To Withhold Evidence In Criminal Cases

Although it happens in some cases, I was surprised to learn that it was not a felony crime for prosecutors to withhold evidence in criminal trials. That has changed in 2017.
California Penal Code § 141 (Amended): A Prosecutor Withholding Exculpatory Evidence: Addition of new subdivision (c) provides that “(a) prosecuting attorney who intentionally and in bad faith alters, modifies, or withholds any physical matter, digital image, video recording, or relevant exculpatory material or information, knowing that it is relevant and material to the outcome of the case, with the specific intent that the physical matter, digital image, video recording, or relevant exculpatory material or information will be concealed or destroyed, or fraudulently represented as the original evidence upon a trial, proceeding, or inquiry, is guilty of a felony . . . .”
Punishment: Felony; 16 months, 2 or 3 years in prison or county jail pursuant to P.C. § 1170(h).

Courts have always found that withholding of evidence is grounds for reversal of a conviction or other court- imposed sanctions against the prosecution (See Brady v. Maryland (1963) 373 U.S. 83; generically referred to as a “Brady Violation.), a prosecutor intentionally withholding exculpatory evidence is now a felony offense. Peace officers doing the same (per subd. (b)) is already a felony offense, but with a greater punishment; 2, 3 or 5 years in prison. For anyone else, the offense is a misdemeanor (subd. (a)).

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Memorial Announced For Criminal Defense Attorney Anthony Brooklier

A memorial has been set for one of our own, Tony Brooklier, a well known criminal defense attorney in Los Angeles. Here are the details:

Dear family, friends and colleagues. Tony’s memorial service has now been set for Saturday, January 7th at 10:00 A.M. at his beloved Alma Mater, Loyola Marymount University in Los Angeles. Address: 1 Loyola Marymount University Drive. Los Angeles, 90045.

The memorial service begins at Sacred Heart Chapel. Following the short service, there will be a Celebration of Life at St. Roberts Hall, just behind the chapel. I ask that all of you share this information, as so many of you have inquired. My heartfelt thanks for the incredible love, respect and admiration you’ve all shown for my beloved husband. — at Loyola Marymount University

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What Affect Does Judicial Diversion Have On My Arrest Record?

Judicial Diversion under Penal Code 1001.94 allows a case to be dismissed upon completion of certain conditions. What happens to the arrest record?

Penal Code 1001.96 addresses that issue
It states that If the defendant, during the period of deferral imposed pursuant to subdivision (a) of Section 1001.94, complies with all terms, conditions, and programs required by the court, then, the judge shall, at the end of the period, strike the defendant s plea and dismiss the action against the defendant.

(b) Upon successful completion of the terms, conditions, or programs ordered by the court, the arrest upon which sentencing was deferred shall be deemed to have never occurred. The defendant may indicate in response to any question concerning his or her prior criminal record that he or she was not arrested or granted deferred entry of judgment for the offense, except as specified in subdivision (c). A record pertaining to an arrest resulting in successful completion of the terms, conditions, or programs ordered by the court shall not, without the defendant s consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate.

(c) The defendant shall be advised that, regardless of his or her successful completion of the terms, conditions, or programs ordered by the court pursuant to this chapter, the arrest upon which the judgment was deferred may be disclosed by the Department of Justice in response to a peace officer application request and that, notwithstanding Section 1001.94, this section does not relieve him or her of the obligation to disclose the arrest in response to a direct question contained in a questionnaire or application for a position as a peace officer, as defined in Section 830.

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Prop 57, Broken Down

Recently, California voters passed Proposition 57 which substantially changes the amount of time criminal offenders can serve in prison for felony offenses. What does Prop 57 actually do?

There are three main provisions created by Proposition 57– two relating to adults and one to juveniles:
 Adults:
1. Parole Eligibility Changes
2. Credit Awards Changes

 Juveniles:
3. Direct Filing of Criminal Complaints Against Juveniles in Adult Court is Eliminated

What are the Direct Results of Proposition 57?
1. Offenders who commit multiple crimes against multiple victims will be eligible for release at the same time as offenders who only committed a single crime against a single victim.
2. Repeat offenders will be eligible for release after the same period of incarceration as first time offenders.
3. Offenders whose sentence was enhanced for especially egregious conduct will be eligible for release at the same time as those who did not engage in the egregious conduct.
4.The California Department of Corrections will have unlimited authority to award credits to all inmates, in excess of the current 15%, 20% and 50% conduct credit limitations.
5. Juvenile offenders who commit violent crimes like murder, rape and carjacking cannot be filed on as adults. They must be filed on in juvenile court and can only be found unfit by a judge.

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How Does Proposition 64 Change The Law On Marijuana in California

Proposition 64, abbreviated as AUMA (the “Adult Use of Marijuana Act”), legalizes the following conduct by persons age 21 and older:

 Possessing, processing, transporting, purchasing, obtaining, or giving away to a person age 21 or older without compensation, up to 28.5 grams (one ounce) of marijuana that is not concentrated cannabis and/or up to 8 grams of concentrated cannabis

 Possessing, planting, cultivating, harvesting drying, or processing up to six living plants in or on the grounds of a private residence if the plants and any marijuana produced by the plants in excess of 28.5 grams are in a “locked space” and are not visible by normal unaided vision from a public place

 Smoking or ingesting marijuana or marijuana products

 Possessing, transporting, purchasing, obtaining, using, manufacturing, or giving away

marijuana accessories to persons age 21 or older, without any compensation

Prop. 64 also significantly reduces penalties for H&S 11357, H&S 11358, H&S 11359, and H&S 11360 marijuana crimes. It reduces significantly the penalties for marijuana crimes committed by minors such that selling or transporting for sale (H& 11360), cultivating (H&S 11358), or possessing marijuana for sale (H&S 11359) are mere infractions punishable by only a few hours of drug education and community service, thereby encouraging youth to engage in marijuana activity.

In addition a new agency called The Bureau of Marijuana Control is established to oversee the entire marijuana system, which includes detailed procedures for licensing and regulating all aspects of marijuana, including advertising, and taxing the cultivation and retail sales of marijuana.

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Where Can I Do Independent Drug Testing In The South Bay

Here is the scenario, you suspect your son or daughter is using drugs, they deny it and you want to be sure.  The best way to confirm illicit drug use is to obtain private testing to determine whether your loved one is abusing drugs.  You don’t necessarily want to get the authorities involved and subject him or her to prosecution in criminal court so private testing by a reputable lab is the best course of action.

Many times folks want to get a private drug screen to test for illegal drugs. The reasons may be a pending Court case for criminal charges, DUI or for prospective employment. In some cases it may be a good idea to conduct private drug testing ahead of a Court date to show the Judge or District Attorney that the accused is drug free and more amenable to a favorable resolution of the charges.

Many companies will do the testing and the costs vary but here are two places in the Torrance area that can perform a private test to determine if drugs are present in a persons body:

Twin Town Treatment Centers
20300 South Vermont
Torrance CA 90502
310-787-1335
Ask for Kim or Amanda

Drug Testing Center
4253 W. Redondo Beach Blvd.
Lawndale CA
310-921-9940
Ask for Betty,

Let them know Attorney Matthew Ruff referred you. Any drug can be tested for including heroin, marijuana, cocaine, amphetamines and all prescription drugs as well.  The labs listed above are close to Manhattan Beach, Rancho Palos Verdes and Hermosa.

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Can A Domestic Violence Restraining Order Be Renewed?

California family Code §6345 pertains to the renewal of a DVRO and reads in relevant part as follows:

(a) … These orders may be renewed, upon the request of a party, either for five years or permanently, without a showing of any further abuse since the issuance of the original order, subject to termination or modification by further order of the court either on written stipulation filed with the court or on the motion of a party. […]

The scope and meaning of the section is further defined in the case of Ritchie v Konrad (2004) 115 Cal.App.4th 1275 which lays out the standard of review in determining if such an order should be renewed and the factors the Court should look to in making a determination as to the renewal of such orders. In relevant part Richie provides the following direction to the Court: [I]n California, as in the rest of the country, an objective test must be satisfied before a protective order is renewed in contested cases. A trial may court renew the protective order, if and only if, it finds by a preponderance of the evidence that the protective party entertains a “reasonable apprehension” of future abuse. at pg. 1290.
The Richie opinion goes on to identify several factors including recommendations that the trial court should ordinarily consider the evidence and findings on which the initial order was based in appraising…. since two orders may be written the same but based on totally different set of facts. at pg. 1290. Noting however that the mere existence of an existing protective order is seldom conclusive evidence of “reasonable apprehension” since it was issued several years earlier. Richie at pg.1291
Additionally, any significant changes that have taken place since the order was issued – for instance have the parties moved on with their lives, moved from the area, and involved with new partners/spouses/significant others and similar facts that show there is less likelihood of future abuse. Richie at pg. 1291.
The other side of the equation – the burdens the protective order imposes on the restrained party; including interfering with or preventing the restrained party from maintaining or finding employment. Obviously if there is a “reasonable apprehension of physical violence” this factor is less relevant as the physical security of the protective party trumps all burdens. Richie at pg. 1292.

The fact a judge found enough grounds to grant a protective order three years earlier does not necessarily mean sufficient grounds remain to renew that order for another three years […] merely because the protective party files a “request” and expresses her subjective desire the court issue such an extension.

Anyone considering getting an extension of a DVRO should consult an attorney.

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