Author Archives: Danielle Varner

New laws affecting juveniles in the criminal justice system 

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From the initial point of questioning to whether there is a possibility of parole, the California State Legislature has passed new laws will affect the two crucial beginning and end points in the juvenile court process. For minors who were acquitted or had their cases dismissed, an additional bill allows for the sealing of their juvenile records. Governor Brown has signed six of these bills into new law, effective January 1, 2018. While none of the changes in the law will affect actual sentencing, each of these bills recognizes that juvenile offenders are children, with children’s levels of understanding, and that each has entire lives and potentials ahead of them.

 

Interrogation and arrest stage for juveniles age 14 and younger

SB 395 (Lara)

First, at the interrogation and arrest stages, children under the age of 15 years old will now be required to consult with an attorney before waiving their rights and before any custodial interrogation. This law is crucial in that children are taught from very young ages to trust the police and to always be completely forthcoming and submissive to authority figures- and especially to the police. Many adults, and most or all children, do not understand the full impact of their Miranda rights, or that the police are trained in sophisticated interrogation techniques- including lying to suspects- in their interrogation training courses. Sadly, many children, in order to please the questioner, to cover up for a friend, to feel important, or merely from stress and hoping to avoid further questions, will falsely confess to crimes they did not commit when they are subjected to interrogation from authority figures. These children do not understand the serious legal consequences of their confessions.

This new law will help children ages 15 or younger receive professional legal guidance before giving up their rights, and before the police interrogate them. These young minors will consult with legal counsel in person, by telephone, or by video conference prior to a custodial interrogation or waiver of the right to remain silent. There are particular nuances and limits to this new legislation, including an exception when necessary to protect life or property from imminent threat, but this could be a good start in the right direction. The new law requires that a small panel reports to the Legislature the relevant data on the effects and outcomes associated with its provisions, and further: the law automatically self- repeals on January 1, 2025.

 

Fees waived for juveniles under age 21

SB 190 (Mitchell)

Currently, correctional administrators (authorized by Counties) may assess administrative fees and charge application fees to participants in home detention programs or work furlough programs, whether the participants volunteered for the programs or not. Further, probationers must pay for any required drug testing when ordered. Also currently, parents of children accused of crimes must pay for the transportation, food, shelter, and care at juvenile facilities, and for the costs of required programs, such as alcohol or drug programs. Parents must also pay for the costs of probation supervision, home supervision, or electronic surveillance of the minor.

Effective January 1, 2018, the parents of accused and offending minors will no longer be liable for these fees and costs, which will be absorbed by the Counties for juveniles under the age of 21. Juveniles with “dual ward status” will not be affected.

While it seems rational that parents should be required to pay for the costs of their children, one result of juvenile justice’s cost-shifting burden to parents is that charging and incarcerating youths suddenly becomes virtually free for the government- it transfers all of the direct rearing and upbringing of the youth to the government, away from the parents, without any of the associated costs. This means that when considering whether to take and incarcerate a child, the government no longer has to be concerned with the costs of doing so, because the parents pay, which creates a disturbing imbalance of judicial considerations.

 

Parole processes for Juvenile offenders

AB 1308 (Stone)

SB 394 (Lara and Mitchell)

Two pieces of newly enacted legislation will affect parole processes for juvenile offenders. First, the Board of Parole Hearings generally is required to conduct youth offender parole hearings to consider the release of offenders who committed specified crimes when they were under 23 years of age and who were sentenced to state prison. Beginning in 2018, the Board of Parole Hearings must conduct youth offender parole hearings for those juveniles sentences to state prison who were under 25 years of age at the time they committed those crimes. Because there will be a sudden backlog of necessary hearings, the new law does make time provisions to allow the Board to catch up, and sets deadlines for those hearings that will now be required.

Second, SB 394 requires that children who have been sentenced to life without parole (LWOP) be given a parole hearing after 25 years of incarceration. Thus, a 15-year-old juvenile offender who was sentenced with LWOP will receive a parole hearing when he or she is 40 years old. This law brings California in line with recent Supreme Court decisions. For example, in 2005, the United States Supreme Court held that juveniles have lessened culpability than adults because of the “fundamental differences between juvenile and adult offenders” (Roper v. Simmons (2005) 543 U.S. 551). Then in 2010, it ruled that it is unconstitutional to sentence a youth who did not commit homicide to a sentence of life without the possibility of parole. The Court explained that the Eighth Amendment, which prohibits cruel and unusual punishment, “does not foreclose the possibility that persons convicted of non-homicide crimes committed before adulthood will remain behind bars for life. It does forbid States from making the judgment at the outset that those offenders never will be fit to reenter society” (Graham v. Florida (2010) 540 U.S. 48, 51-52). Again, because this new legislation will require new, necessary hearings, it also makes time provisions to allow the Parole Board to catch up, and sets deadlines for the newly required hearings.

 

Honorable discharge program re-instated for juvenile offenders

SB 625 (Atkins)

Up until a budget bill was enacted in 2011, there was an honorable discharge program for juvenile offenders under the California Department of Corrections and Rehabilitation’s (CCDCR) Division of Juvenile Facilities. This program allowed juveniles who successfully completed parole after custody, and who demonstrated their ‘ability for honorable self-support,’ to clear their records and to qualify for employment or professional licensure.

Under the budget bill (AB 1628) passed in 2010, and effective 2011, the responsibility of supervision of offenders shifted from the state Juvenile Parole Board to county probation department. Due to a completely and admittedly inadvertent oversight, the new law failed to authorize anyone at the local level to issue honorable discharges. With no one authorized to issue the honorable discharges, the entire program was effectively removed.

This program was crucial for juvenile offenders to be able to make better decisions by pursuing employment and professional license educations. Without the ability to earn a dishonorable discharge, these youths were prevented from earning occupational degrees and licenses, including: barbering, cosmetology, tattoo artists, contractor’s licenses, law degrees, teaching degrees, and many other vital public service career options.

Senator Atkins authored this legislation, which was passed by the legislature and signed by Governor Brown, that reinstates this vital program by authorizing the Board of Juvenile Hearings to grant honorable discharges to those who have proven their ability to desist from criminal behavior and to initiate a successful transition into adulthood.

 

Sealing of juvenile records

AB 529 (2017) (Stone)

SB 312 (2017) (Skinner)

Two bills passed by the legislature and signed by Governor Brown relating to sealing juvenile records will go into effect on January 1, 2018. Together, they will help youths move forward in positive ways- pursuing education and employment- without the ongoing stigma of having a juvenile record hindering their progress.

Currently, a juvenile who has been arrested or who has had his or her case dismissed must petition the court within 5 years to seal those juvenile records. Under AB 529, the court will be required to automatically seal the records of minors who were either acquitted or had their cases dismissed. If, however, within six months of a dismissal, new evidence is found, or if a witness becomes available, the prosecution may ask to refile those dismissed cases.

Also, existing law bans juvenile offenders who have been convicted of serious crimes from sealing their juvenile records. Beginning January 1, 2018, according to SB 312, this ban will be slightly less strict. In 2018, a person will be able to petition the court to seal their juvenile records after they have completed any period of probation supervision at age 21 (if the juvenile offender was committed to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities) or at age 18 (if he or she was not committed to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities). Certain serious violent or sexual crimes will not be affected.

Whether it’s automatic sealing by the court or allowing youths to have their own juvenile records sealed, young people merely accused of crimes as well as young convicted offenders will all be able to move forward into productive, valuable lives- without the lifetime barriers to jobs, education, housing, military service and other barriers that criminal records create.

DNA bill introduced by Assemblyman Cooper going through legislative process

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Expanding DNA collection

In a move that could greatly expand the database holding identifying information of convicted criminals, Assemblymember Jim Cooper (D-Elk Grove) has introduced Assembly Bill 16, which would expand DNA and other identifying information collection for some misdemeanors.

Currently, anyone convicted of a felony in California must provide buccal swab samples – collected from inside one’s mouth – a right thumbprint, a full palm print impression of each hand, and any blood specimens or other biological samples required for law enforcement identification analysis.

If AB 16 passes, those requirements will expand to include any adult convicted of a host of misdemeanors. Those include shoplifting less than $950 in goods, forgery valued less than $950, certain check fraud, theft of property valued at less than $950, receipt of stolen property valued less than $950, possession of a controlled substance, possession of marijuana and possession of methamphetamine.

OAG crime statistics show an estimate of how many additional perpetrators would be required to submit identifying DNA and fingerprint information. In 2015, 157,894 adult drug-related misdemeanors were reported, along with 46,612 adult arrests for petty theft. An additional 1,110 adults were arrested for check and credit card-related fraud.

The bill notes that it could possibly impose additional costs on local law enforcement agencies, and that the state may have to reimburse those agencies for the additional costs.

2017 AB 16 Introduced by Assemblyman Cooper

California supreme court ruling limits expert testimony against reputed gang members

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On Thursday, June 2,, 2016, Associate Justice Carol Corrigan writing for the Supreme Court of California, which supported her opinion in the case of People vs. Sanchez unanimously, declared that the admission of testimonial hearsay proffered by “gang experts” against a criminal defendant violates the Sixth Amendment right to confront and cross-examine witnesses. The ruling was a lengthy, scholarly opinion, which is sure to have an impact beyond the borders of California. Justice Corrigan’s professorial writing navigated through several statutes of the California Evidence Code, influential law review articles, treatises authored by iconic legal experts, as well as numerous previous rulings of California Supreme Court and the U.S. Supreme Court on its way to forcing a dramatic change on how prosecutors may rely upon “experts” to persuade jurors to find that defendants should receive gang enhancements that quite often add many more years to a defendant’s sentence than the original underlying offense(s).

In practical terms, the ruling in Sanchez will force prosecutors to put on much more foundational evidence to prove a defendant is a gang member, before they will be able to present him or her as such for the purposes of enhancing their sentence. Up until the ruling in Sanchez, prosecutors have had the luxury of relying on a so-called “gang expert”; usually a sworn peace officer or a member of the law enforcement community, to testify as to who is a gang member and how the defendant acted for the benefit of the gang even if he or she is not a validated gang member. The Sanchez opinion restricts the prosecutor’s use of “hypothetical” questions that mirror or so closely align with the facts of the case as to be analogous, which the expert can testify to despite the fact that he or she had no personal knowledge of any of the facts or circumstances of the case. At its core, Sanchez states that an expert’s opinion must by necessity assume hearsay facts as true in order for their expert opinion to have any meaning for the jury to rely upon. It is this hearsay and the denial of the right to confrontation of assumed “hypothetical” facts that Justice Corrigan reasoned violates the Constitutional Right to Confrontation that is guaranteed by the sixth amendment.

Lawman says that this crucial modification of the law curtails one of the most powerful, unfair advantages that prosecutors have had at their disposal since the late 1980’s when the California State Legislature first began to increase prison sentences through gang enhancements. Through the 1990’s the gang enhancement penalties increased, until it reached its current apex. If found to be true by a jury, gang enhancements can often transform a sentence that may have been a few years, and stretch it into decades of time in prison, if not a life sentence under certain limited circumstances. The charging of gang enhancements by prosecutors over the years has disproportionately affected the African-American community and other communities of color. Lawman knows through many years of first-hand experience as a seasoned criminal defense lawyer how often questionable gang enhancements are added to the list of charges a defendant faces. These enhancements often have the effect of intimidating a defendant into pleading to charges supported by questionable evidence or sloppy police work in order to avoid the risk of losing at trial and suffering being put behind bars without hope of release for many, many years. Far too often, when properly guided by the hands of a skillful prosecutor, Lawman has witnessed the powerful persuasive effects of a “gang expert” upon a jury that otherwise might not be so inclined to believe a defendant acted on behalf of a gang. Lawman is applauds the California Supreme Court for its courage in getting this one right!

Supreme Court ruling entitles cops to violate citizen’s 4th amendment rights with impunity

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On Monday, June 20, 2016, Associate Justice Clarence Thomas writing for the majority of the Supreme Court in the case of Utah vs. Strieff, declared that the exclusionary rule, which is used to toss out evidence tainted by an illegal investigatory detention, did not apply to the admittedly unconstitutional conduct of a Utah police officer once he discovered that defendant Edward Strieff had an outstanding arrest warrant for a traffic violation.  The court reasoned that because the outstanding warrant was sufficiently “attenuated” from Officer Douglas Fackrell’s conduct following Mr. Strieff’s unlawful investigatory detention, the officer’s subsequent arrest, search and seizure of evidence from Mr. Strieff was “indisputably lawful.”  The court excused Officer Fackrell’s as “negligent,” characterized his unconstitutional conduct as a “good faith mistake,” and therefore and did not find his conduct to be a “purposeful or flagrant violation” of Mr. Strieff’s Fourth Amendment Rights.

Three Associate Justices, Kagen, Ginsburg, and Sotomayor filed two separate dissenting opinions.  Tal Kopan of CNN Politics reported that Associate Justice Sotomayor’s fiery dissent emphasized Illegal Stops ‘Corrode All Our Civil Liberties.’  Sotomayor stated plainly, “the officer found Strieff’s drugs by exploiting his own constitutional violation, the drugs should be excluded. “    Justice Sotomayor emphasized “the Utah Supreme Court described as “routine procedure” or “’common practice’” the decision of Salt Lake City police officers to run warrant checks on pedestrians they detained without reasonable suspicion.”  With this ruling, the U.S. Supreme Court overruled the Utah Supreme Court’s decision to exclude the seized evidence.

Lawman notes that this is another sad day in the history of the U.S. Supreme Court which has chosen to favor what can only be characterized as moving this country a significant step closer to martial law.  With this ruling, Lawman realizes the unfortunate truth; it is now open season for any officer in the country to hide behind this unfortunate U.S. Supreme Court which significantly diminishes citizens’ rights to be free of unconstitutional harassment by police officers.  Cops may benefit from unlawfully detaining and investigating citizens without reasonable suspicion in order to run warrants checks with the hopes of finding any type of warrant or citation to use as justification to conduct a full scale custodial arrest and search of a citizen.  Lawman’s own professional experience mirrors that of Justice Sotomayor. Individuals of color and those of lower socio-economic status are disproportionately likely to be subjected to “suspicion-less” stops and disproportionately likely to have warrants for minor traffic offenses and violations of ordinances.  Therefore, it is these groups of citizens and their communities that will be disproportionately impacted with the type of policing conducted by Officer Fackrell.  In the face of this ruling, Lawman believes it will take considerable and continuous activism by the affected communities to reign in law enforcement in order to curtail the wholesale use of this U.S. Supreme Court decision as a means to routinely violate citizen’s Fourth Amendment rights.

Touching an object held by another: Is this battery?

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In People v B.L, a juvenile court case from the First District Court of Appeals, the question of what is a battery arose in an unusual circumstance. This case involved a minor getting upset and attacking a physical education teacher during a fit of rage. The minor smacked a walkie-talkie out of another teacher’s hand. The minor did not touch the teacher, which is usually required for a battery to occur; the minor merely smacked the device down.

The prosecution argued about how the walkie-talkie was “connected to her person” and therefore, this action is battery. The court found that this action does, in fact, constitute a battery because the minor either struck the hand or struck the walkie-talkie with such force that the same amount of force was applied to the hand. The court referred to an Idaho statute which states that intentional force does not need to be committed directly against the victim; it can be committed with an object connected to the victim. The court also referred to Malczewski v. State where similar reasoning was used. In that situation, the defendant had stabbed a bag held by the victim. While this action did not directly harm the victim, it was still considered battery. Therefore, direct and indirect force against a person can be considered a battery. An action does not need to cause harm or pain, nor does it need to leave a mark for it to be considered battery.

You would think that based on the reasoning of the court, forcefully taking something from someone may also be called a battery and a crime. The big question is what if you were taking something someone took from you? Wonder how many batteries take place during Black Friday shopping adventures!

Read the full court opinion here.