Kendall Simsarian Criminal Law Attorney

Case decided today January 11, 2021 Defendant convicted of felony attempted interstate transportation of marijuana. San Francisco International Airport security-screening officers found over 13 pounds of marijuana in luggage belonging to defendant and her mother. Defendant admitted she was paid to transport the bag containing marijuana from San Francisco to New York and done it at least twice before. She was placed on supervised probation for a period of three years. One con...dition of probation was that she abstain from the use and possession of controlled substances, including marijuana. The questions presented to the court were: Is the condition that she abstain from use of marijuana reasonable? Is the condition that she not possess or use controlled substances of any kind overbroad? The court found that the condition that she abstain from using marijuana was well founded within its broad discretion to fashion appropriate conditions of probation that facilitate rehabilitation and foster public safety. The court found that the condition that she not possess any kind of controlled substances was overbroad, and they modified it to allow her to use and possess only those controlled substances for which she has a prescription (including marijuana). People v. Quinn, Cal.Ct.App. A156932, filed 1/11/21

Before beginning interrogation, a police officer tells you that you have the right to an attorney. You respond with one of the following: a) Maybe I should talk to a lawyer. b) If you can bring me a lawyer. c) I think it’d probably be a good idea for me to get an attorney. d) I want to speak to an attorney first, because I take responsibility for me, but there’s other people that I need to find out.... e) I think it’s about time for me to stop talking. Which of these choices, if any, require officers to cease continued questioning? According to the California Supreme Court, the correct answer is d) The stop questioning answer based on: d) - People v. Henderson (2020) 9 Cal.5th 1013, 1029 The continue questioning answers based on a) - Davis v. United States (1994) 512 U.S. 452, 462 b) - People v. Sauceda-Contreras (2012) 55 Cal.4th 203, 219 c) - People v. Bacon (2010) 50 Cal.4th 1082, 1105 e) - People v. Stitely (2005) 35 Cal.4th 514, 535

San Diego police were parked when a driver stopped her car in the middle of the street and stepped out. She said she lived nearby, provided her address, and reported there were Black males in a parked black Mercedes on her street who were acting shady. The officers went to the location and found a legally parked black Mercedes with three young Black males inside. Officers claimed the driver was already known as an on probation gang member in a rival neighborhood. Four offic...ers parked directly behind the Mercedes, activating their vehicle’s emergency lights. The officers stepped out, walked over to the Mercedes, and positioned themselves at each door to prevent its three occupants from leaving. When the officers asked the vehicle occupants for their names and information, one initially gave a false name. Upon learning his true identity and confirming that he was on probation subject to a condition waiving his Fourth Amendment rights, officers searched the Mercedes and recovered a loaded firearm underneath the driver’s seat, a pair of sneakers connected to a robbery, and a clear white canister containing marijuana. The minors were arrested. The lower court found that no detention had occurred, that the officers had a right to be at that location and check on the vehicle after receiving the citizen tip, and once they confirmed driver was subject to a Fourth Amendment waiver, they could legally search the vehicle. The appellate court reversed the order denying the motion to suppress. They said that there was a detention and that the tip on its own did not justify the detention, and the trial court is to conduct a renewed suppression hearing to resolve credibility conflicts as to what the officers knew at the time they detained defendants. In re Edgerrin J., Cal.Ct.App. D076461, filed 11/20/2020

This is a United States Supreme Court case, and is therefore now the Law of the Land. An officer ran a license plate check on a pickup truck, discovering that the truck belonged to defendant and that defendants’s driver’s license had been revoked. The officer pulled the truck over because he assumed that defendant was driving. Defendant was in fact driving and was charged with driving on a suspended license. He moved to suppress all evidence from the stop, claiming that the o...fficer lacked reasonable suspicion. Q: Does an officer violate the Fourth Amendment by initiating an investigative traffic stop after running a vehicle’s license plate and learning that the registered owner has a revoked driver’s license. A; No. Under these circumstances, "when the officer lacks information negating an inference that the owner is the driver of the vehicle, the stop is reasonable." The Court said that since the officer "knew that the license plate was linked to a truck matching the observed vehicle and that the registered owner of the vehicle had a revoked license. Based on these minimal facts, he used common sense to form a reasonable suspicion that a specific individual was potentially engaged in specific criminal activitydriving with a revoked license. Traffic stops of this nature do not delegate to officers broad and unlimited discretion to stop drivers at random." The Court said the scope of the ruling was narrow, giving the example that "if an officer knows that the registered owner of the vehicle is in his mid-sixties but observes that the driver is in her mid-twenties, then the totality of the circumstances would not raise a suspicion that the particular individual being stopped is engaged in wrongdoing. The stop is justified based really on reasonable inferences rather than reasonable suspicion. Sotomayor in her dissent pointed out that "a stop must be individualizedthat is, based on a suspicion that the particular subject being stopped is engaged in wrongdoing. This does not mean that the officer must know the driver’s identity. But a seizure must rest on more than the likelihood that a given person or particular vehicle is engaged in wrongdoing." Kansas v. Glover, USSC, filed 4/6/20

Defendant drove past a school bus while it was stopped and displaying a flashing red light signal and stop signal arm in violation of VC 22454(a). Rather than cite her for this offense, the officer elected to cite her for failing to stop while approaching a stop sign in violation of VC 22450(a) because the fine would be lower. She fought the case, saying she was not guilty of either offense. Facts- A school bus was stopped in front of an apartment building. The red lights... on the bus were flashing and its signal arm with the word stop written on it was extended. Defendant made a left turn onto that street and drove past the school bus without stopping. Law- VC 22450(a): The driver of any vehicle approaching a stop sign at the entrance to, or within, an intersection shall stop at a limit line, if marked, otherwise before entering the crosswalk on the near side of the intersection. If there is no limit line or crosswalk, the driver shall stop at the entrance to the intersecting roadway. The court found her guilty of VC 22450(a) and fined her $695. She appealed. The appellate court answered the following question: Does a stop signal arm affixed to a school bus fall within the parameters of section 22450(a)? Answer: No. Not Guilty. The strict construction of the statute required a finding that defendant’s failure to stop occurred while facing a crosswalk or entering an intersection. Since this was not the case, defendant's conviction is reversed.

This might be a good time to educate people on the lawful/unlawful possession of marijuana in a vehicle. 1. A person cannot lawfully drive under the influence of marijuana. 2. Neither the driver nor a passenger can smoke marijuana while riding in a car. 3. It is illegal to possess an open container of cannabis while driving.... 4. A person over 21 years old can possess and transport cannabis in an amount of not more than 28.5 grams. 5. It is illegal to possess, while driving a car, cannabis in a receptacle which has been opened or has a seal broken. 6. It is illegal to possess, while driving a car, loose cannabis flower not in a container. Don't smoke marijuana in your car or be high while driving. Don't have marijuana in the car at all unless it is 28.5 grams or less. The marijuana must be in a sealed container, unless it is loose cannabis flower, and then it may be possessed in a closed container. Notes: The courts consider marijuana and cannabis to be the same thing. Cannabis and loose cannabis flower are treated differently. There is an exception to the sealed container requirement for a qualified patient or person with an identification card, if carrying a current identification card or a physician’s recommendation, and the cannabis or cannabis product is contained in a container or receptacle that is resealed or closed.

It is illegal to possess a concealed dirk or dagger. A dirk or dagger is defined as a knife or other instrument that is capable of ready use as a stabbing weapon that may inflict great bodily injury. 1. Is this definition of a dirk or dagger too vague to give notice of what is prohibited? 2. Does the definition grant police and prosecutors unfettered discretion over who to pursue?... Answers as determined by the California Appellate Court in a published decision - People v. Bermudez, Cal.App.Ct C079168A, filed 2/18/2020: 1. Since to be guilty of carrying a concealed dirk, a defendant must know the concealed instrument could be readily used as a stabbing weapon, and when a defendant is charged with an offense that penalizes possession of an instrument that is ordinarily usable for peaceful purposes, the defendant may justify the possession by showing the possession was in accordance with the instrument’s ordinary legitimate design. This of course puts the burden of proof on defendant to show that there was an ordinary legitimate use, and that they were unaware that it "could" be used as a stabbing weapon. 2. Defendant argued the definition grants the police and prosecutors unfettered discretion over who to charge with carrying a concealed dirk. He reasons the statute punishes activity that ordinary people engage in without thinking about it. He postulates that a car key could be a dirk, ergo everyone in a parking lot could be arrested for carrying a concealed dirk. The court disregards this argument, saying that to be subject to arrest, a person’s conduct must give rise to probable cause that he knew the concealed instrument may be used as a stabbing weapon, and that such knowledge can be determined through the surrounding circumstances, including the time and place of possession, the defendant’s destination, the object’s alteration, and any other facts. To sum up - on both questions, Eric Schweitzer is right and the court is wrong.

A border patrol agent for 10 years was patrolling I-15 in San Diego County, a known smuggling corridor, as part of the drug interdiction task force. He was not in uniform and his vehicle was unmarked as law enforcement. He saw defendant driving a vehicle that he learned had crossed the US-Mexico border within the past week. After he pulled alongside her, rolled down his window because he was unable to see her, and stared at her, she slowed and changed lanes. She also drove at... 50 mph to stay behind him, and the refused to look at him when he passed her a few miles later. She was stopped and then in a backpack in the back seat the officer found 7 kilos of cocaine. She got 8 years, 4 in custody, 4 on supervision. Is the stop justified? Answer: No. Even though the defendant's behavior made the officer suspicious, that suspicion was not objectively reasonable. Driving on I-15 in not sufficient, crossing the border is not sufficient, and the additional factors of the driver's behavior and supposed nervousness did not provide a reasonable basis for suspicion for the stop. Reversed. Case dismissed. People v. Mendoza, filed 2/5/2020, Cal.App.Ct. E071835

Today's Legal Query: Defendant throws a single punch to the face, without warning and hard enough to result in the victim being knocked unconscious and hitting his head on a curb, resulting in his death. Defendant knew victim was drunk and boasted that he was going to ambush him outside the bar. Under these facts, may a jury find defendant guilty of second degree murder? Answer:... This conduct is sufficient to support a jury's guilty verdict for second degree murder. People vs. Palomar, Cal.App.Ct. B292450, filed 2/3/2020

Can a refusal to testify in a murder case, after being subpoenaed and granted immunity, support a conviction for PC 32 (accessory after the fact to murder)? No it cannot. Although "the intent that the principal avoid or escape from arrest, trial, conviction, or punishment" is an element of the offense, that element is separate and distinct from the requirement of "overt or affirmative assistance." Therefore, a person's intent that the principal avoid punishment does not tran...sform silence into assistance. "We hold that a witness's refusal to testify in the face of a valid subpoena, while punishable as contempt, does not by itself amount to harboring, concealing, or aiding a principal within the meaning of PC 32." People v. Partee, Cal.SupremeCt. S248520, decided 1/23/2020

Defendant encounters victim on a sidewalk and points a gun at victim at waist level. Defendant tell victim to move back into an alley. Victim obeys. Defendant does not touch victim, victim takes "three, four steps backward, a very short distance. When victim stops he is at the corner of a building and 12 inches into an unlit alley, blocked from everyone’s view. Defendant demands victim's wallet; victim complies. Does this constitute kidnapping to commit robbery?... No. Kidnapping to commit robbery sets two requirements: 1. The defendant must move the victim beyond movement merely incidental to the robbery, and 2. This movement must increase the victim’s risk of harm beyond that necessarily present in the robbery. (PC 209, subd. (b)(2).) In this case, requirement 1 is not met. Even if the movement did increase the victim's risk of harm, this movement was merely incidental to the robbery. "The law is not always simply logical and commonsensical but here it is, and that is desirable because criminal law aims to express and to enforce a community’s shared moral intuitions. The average Californian would be surprised to hear four steps backwards could be kidnapping. And here the average Californian would be right: that is not a kidnapping under these facts." Kidnapping for robbery conviction reversed. No retrial. People v. Taylor, Cal.Ct.App B293881, filed 1/6/2020

Merely because a young adult victim started crying the first time she entered the courtroom to testify against defendant, is not sufficient to allow a trial court to interfere with a defendant's right to confront witnesses. The Calif Supreme Ct said that a defendant has the right of face-to-face confrontation. Convictions on the counts involving that witness reversed. People v. Arredondo, S244166, Filed 12/16/2019

Does 15% time credits (violent felony) mean a prisoner does 85% of his or her time? No. Pursuant to case law interpreting 2933.1, an inmate who is sentenced to 10 years in prison will not do 8 years, 6 months (85%). That person will do 8 years 8-1/2 months. That's 75 extra days. Warning: CDCR rules may vary.

Important Calif Supreme Ct case 11/25/2019: People v. Lopez The Fourth Amendment does not allow an officer to conduct a warrantless search of your vehicle to locate a driver's identification following a traffic stop. ... This means that if you are pulled over for a traffic violation, and you tell the officer that you do not have a driver license in your possession, they cannot search your vehicle without your permission just to see if you're telling the truth about having your license with you. Know your rights!

The California Supreme Court recently ruled: Where a burglar enters a structure enumerated under section 459 with the requisite felonious intent, and then subsequently enters a room within that structure with such intent, the burglar may be charged with multiple burglaries only if the subsequently entered room provides a separate and objectively reasonable expectation of protection from intrusion relative to the larger structure. Such a separate expectation of privacy and sa...fety may exist where there is proof that the internal space is owned, leased, occupied, or otherwise possessed by a distinct entity; or that the room or space is secured against the rest of the space within the structure, making the room similar in nature to the stand-alone structures enumerated in section 459. People v. Garcia, 2/25/16, S218233 What this means in more simple language is: once a burglary has occurred at a business or residence, entering a room within that business or residence is not a separate crime unless it is somehow separate. A student's room in a dormitory is a good example of what would be considered separate.

In honor of the Mall to Mall ride today, here's an excerpt from my brochure; "A ZEALOT'S GUIDE TO RIDING A BICYCLE ON CALIFORNIA'S MEAN STREETS" (This is informational only and not meant as a legal guide or legal advise) RIDING TIPS AND TRICKS When there's a bike path that's separated from the road, do I have to use it?... No, I recommend not riding on bike paths unless you are going very slowly. These tend to be used by joggers and walkers, who often are wearing headphones and/or not paying attention. What about the bike lanes? Bike lanes are a visible, if not physical, barrier between cyclists and motor vehicles. You should use the bike lane when there is one, and in fact, you must use it rather than riding in traffic. Good luck out there. Stay safe and wear a helmet!!!

The US Supreme Court says that natural dissipation of blood cannot be the sole basis for exigency allowing a forced blood draw without a warrant under McNeely. However, this California appellate court finds that the defendant's refusal to provide information to officers, his violent resistance, and the closure of branch courts (which impacted the the time required to obtain a warrant), established the additional exigent circumstances under McNeely allowing the nonconsensual ...warrantless blood draw. (People v. Toure, Cal. Ct. App. E058915, filed 01/05/15 ) From the case itself: "In the present case, applying the case-by-case approach to determine the totality of the circumstances, we conclude that exigent circumstances justified the nonconsensual warrantless blood draw: there was a traffic accident in which at least one person sustained injuries approximately 2000 feet from where the defendant finally came to a stop after blowing the tire of his semi-truck. The defendant was combative, requiring the administration of physical restraints, which delayed their investigation of the accident and prevented the officers from conducting field sobriety tests, unlike the defendant in McNeely. Defendant refused to provide officers with information, yelling profanities at them, thereby preventing the officers from determining when he had stopped drinking, also unlike the defendant in McNeely. The time it took to subdue defendant and transport him to the CHP station, after conducting a brief investigation of the accident scene consumed approximately two hours: The original call came at 9:07 p.m., and they were back at the station with defendant in custody at 11:03 p.m. The officers wanted to get the defendant to the station as soon as possible because they were aware that the restraints were uncomfortable, but could not be removed until he was booked in the jail. In this case, it would have been impossible to calculate backward to determine the defendant’s blood alcohol level at the time of the accident. The officers were prevented from discovering when the defendant ingested his last drink, the starting point for such a determination, due to the defendant’s combativeness and refusal to cooperate. Further, the time it took to conduct their investigation of the accident scene and to subdue the defendant threatened the destruction of the evidence. (McNeely, supra, 133 S.Ct. at pp. 1560-1561, citing Schmerber, 384 U.S. at pp. 770-771.) " for full text, see: http://www.courts.ca.gov/opinions/documents/E058915.PDF

New Case Law Alert! In Riverside County Sheriff's Dept. v. Stiglitz 12/1/14 S206350, the California Supreme Court said that attorneys can use the Pitchess v. Superior Court (Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess); Evid. Code, 1043, 1045) procedure at Administrative Hearings. That means that in an appropriate case, police officer personnel records may be obtained at an Admin Per Se license suspension hearing in order to properly fight a DMV Driver License suspension.