Recent Blog Posts

Governator Says Hasta La Vista to Penal Code 4019 County Jail Half-Time Credits

Marc S. Kohnen — Sun, 03 Oct 2010 21:32:00 GMT

Penal Code 4019 has been amended yet again by Statute, with Governor Schwarzenegger signing SB 76 into law effective September 29, 2010. The recent amendment to Penal Code 4019 repeals half-time credit for county jail sentences and restores the previous standard of 1/3 credits. For the past 6 months, defendants sentenced to county jail only had to serve 50% or "half-time" of their sentence before being released. Those sentenced to a county year served an actual total of only 6 months custody. With the recent change in law, the same defendant sentenced to a year in county will have to serve 8 months. This change in law affects only those defendants sentenced to county jail. Defendants sentenced to state prison, for offenses not deemed "serious" and/or "violent" still get half-time credit toward their state prison sentence.

The provisions of this amendment will apply to: "prisoners who are confined to a county jail, city jail, industrial farm, or road camp for a crime that was committed on or after the effective date of that act" Penal Code 4019(g), meaning defendants whose date of offense was prior to September 29, 2010 will still receive the benefit of half-time credits. If the defendant's offense was committed on or after September 30, 2010, then he or she will be subject to the new law and only receive 1/3 credits. So if you plan on breaking the law after today, get ready for overcrowded jails again and more actual days served for county jail offenses. Half Time Credits - You Have Been Terminated!

Miranda Warning: U.S. Supreme Court Says Speak Up to Remain Silent

Marc S. Kohnen — Fri, 04 Jun 2010 05:44:00 GMT

Even if you have never heard of Miranda v. Arizona, you already know the resulting admonishment. You hear it every time the cops slap the cuffs on the bad guys on tv or in the movies:

"You have the right to remain silent, anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be appointed to you free of charge. Do you understand these rights as they have been read to you?"

If you are reading my blog, you may have unfortunately heard these words recently yourself. This admonishment is the result of the landmark 1966 U.S. Supreme Court decision Miranda v. Arizona 384 U.S. 436 (1966). In a nutshell, any time the police arrest you or conduct a "custodial interrogation" they must advise you of your right to remain silent and your 6^th Amendment right to counsel, to enable statements you thereafter make fair-game to be used against you in court. If you are arrested, and not advised of your Miranda rights, any statements you make cannot be used to incriminate yourself. Conversely, if you have been advised of your Miranda rights, and choose to give a statement to police - this statement can be used against you.

Yesterday, The U.S. Supreme Court, in a 5-4 decision Berghuis v. Thompkins (No. 08-1470) 547 F. 3d 572, held that in order for you to invoke your right to remain silent under Miranda, you must paradoxically voice your desire to remain silent. Actual silence, according to the Supreme Court, does not mean you wish to remain silent. In this week's case, Mr. Thompkins was interrogated by Michigan Police Detectives for over three hours and said nothing until he answered "yes" when asked if he prayed to God to forgive him for the shooting. Because he had not expressly said that he wanted to remain silent, that he did not want to talk with the police, or that he wanted an attorney Mr. Thompkins did not invoke his Miranda rights and his statement was admissible in court.

Bottom Line -- Don't just shut up; tell the police you are shutting up, then shut up.

The Killer with the Killer Looks -- Unattractive Defendants More Likely to face Conviction

Marc S. Kohnen — Sun, 23 May 2010 05:11:00 GMT

My next client with killer looks might not be an actual murderer, but according to a recent study conducted by Cornell University, the jury will be blinded by his or her appearance rather than the facts.

In a study to be published next month, researchers Justin Gunnell and Stephen Ceci opined that attractive defendants are 22% more likely to receive a not guilty verdict, and be punished with a less-severe sentence than their unattractive counterparts. Gunnell and Ceci arrived at their conclusions by showing their research group photos of defendants along with a case file describing the offense, and having the research group listen to the closing arguments and jury instructions of each case.

Gunell and Ceci identified two types of potential jurors: the "emotional" juror who relies on his or her emotions to reason and consider legally irrelevant factors like appearance, race, gender and class. The second type of juror, the "rational" juror, is one who reasons rationally, and processes information based primarily on analysis, logic and facts. Their research demonstrates the "emotional" jurors to be more likely to render harsher verdicts to unattractive defendants and believe that a less attractive defendant seems like the "type of person" who would commit a crime. The "rational" jurors tended to focus much less on how defendants look in reaching a verdict and sentence. Most people use both emotions and rational reason to process information; however one approach or the other is usually predominant in an individual.

While this information is news-worthy, it isn't exactly earth shattering. Studies have shown time and time again that beauty and an attractive appearance will cause most people to form a favorable impression of someone, absent further information to the contrary. Accordingly, as defense lawyers, we must humanize our clients as much as possible, providing the jury an abundance of information in the hopes that they perceive our clients on trial as decent people (despite whatever their appearance may indicate) and provide each juror enough information to overcome biases based on looks, race and other superficial factors.

I never thought I'd learn anything of note from the movie Basic Instinct, but there's a parallel to be drawn between Sharon Stone and this study…Just because the defendant has killer looks, doesn't mean she's not a killer.

San Diego DUI Lawyer

Marc S. Kohnen — Wed, 31 Mar 2010 05:50:00 GMT

I must admit, I've got a certain fondness for listening to war stories from some of the older local criminal defense attorneys in San Diego. By "older" I mean attorneys who have been defending DUI cases since the 1970's. I've heard, that the way things used to be; on a first time DUI arrest all the lawyer had to do was show up in court with proof of their client's clean DMV record and voila -- case dismissed.

On a related note, last year I listened to a long-time judge here in San Diego County when granting my client's motion to terminate probation early after his DUI conviction, describe how during his many years of service in law enforcement and as a judge he has watched the definition of DUI evolve in California...how DUI's used to be .15, then they were .10, and now they are .08. Prior to the 1980's, if you were pulled over while driving with anything less than a .15 B.A.C. you weren't even necessarily considered too intoxicated to drive, and you were likely sent on your way with a warning.

Boy, how times have changed.

If you've ever been pulled over for DUI in the last 10 years, you know no one gets off with a warning anymore, .08 can be as little as two drinks, and after spending the night in the drunk tank you'd be released on your own recognizance with a citation to appear. Well, not anymore - at least as far as the old "night in the drunk-tank" goes. As bad as the DUI arrest experience has already become, here in San Diego it just got worse.

Beginning in 2010, if you are arrested for DUI in San Diego you will not be released the following day by the Sheriff from jail on your own recognizance to appear. Rather, you will be required to post bail in the amount of $2,500 to be released from jail. If you are unable to post bail you will remain in jail, at least until you first appear before a judge at arraignment, which could be 3-4 days from the date of arrest and there are no guarantees you will even be released then. If you are unable to post bail, and aren't granted release on recognizance, you will remain in jail until your case is resolved via dismissal, plea bargain or trial. This process can sometimes take months.

So what does this mean for you? At the very least, the DUI process just became even more expensive. To pay a bondsman to bail out a relative or friend will cost $250. Looking at the bigger picture, this will cause problems for the San Diego Sheriff and worsen the public safety of the community. It is common knowledge that the vast majority of arrests in San Diego are for the crime of DUI. On any given weekend our jails are packed with those recently arrested and charged with Driving Under the Influence. Most of those arrested will be able to post bail, but a significant percentage will not. Inevitably, the number of persons who remain in jail will add to the overcrowding of jails already operating at maximum capacity.

Even a child knows, if you pour more water into an already full glass, the excess water will spill. The same laws of physics and maximum volume apply to San Diego jails. With our jails already operating at capacity, the mandate to jail DUI offenders will inevitably result in the spillage (release) of other inmates. Some of the inmates who will be freed to make room to incarcerate DUI defendants will be violent criminals, sex offenders and gang-members.

If I can finally get to the point of today's blog, it's this...mark my words, San Diego's new policy of jailing DUI defendants will lead to an increase of criminals back on the streets of America's Finest City. While I agree we must do all we can to discourage Driving Under the Influence, we shouldn't do it in a way that creates bigger problems. San Diego residents will likely agree, for purposes of public protection that multiple DUI offenders and extremely intoxicated defendants should face jail as a consequence of DUI, but would they feel the same way if they knew that violent by nature criminals and sex offenders would be out of jail sooner? My guess is San Diegans would rather see the violent criminal or sex offender locked up than the broke college kid who got arrested for DUI but can't post bail.

San Diego Courts and Law Enforcement, please re-evaluate the merits of your new DUI bail policy and bring back the On Recognizance Release!

Monday Mugshot Photo Roundup!

Marc S. Kohnen — Tue, 09 Mar 2010 06:31:00 GMT

I love my job. Sometimes it really doesn't even feel like work and I can't believe that I get paid to work on cases so challenging and interesting. With that being said, from time to time, you've got to look on the lighter side so it never gets too heavy. No one out there I've seen, gets more laughs out of being on the wrong side of the law as do the good folks at thesmokinggun.com. For a good chuckle, check out this week's Monday Mugshot Photo Roundup. The Kentucky Gentleman arrested on page one certainly gets right to the "point." You might even say, he was "fingered" as the perpetrator. Who says getting arrested has to be completely miserable?

Gang Enhancement Math; 1 + 1 +1 = Life in Prison...Continued!

Marc S. Kohnen — Tue, 23 Feb 2010 06:25:00 GMT

For the following blog to make sense, please read my February 2, 2010 “Gang Enhancement Math; 1 + 1 +1 = Life in Prison” blog first, as the following is a continuation of that writing.

…So, in my last blog entry, we’ve seen where belonging to a gang was the difference between four years and a life sentence. Here’s another example:

Penal Code §136.1(a) defines the offense of Intimidating a Witness.

(a) Except as provided in subdivision (c), any person who does any of the following is guilty of a public offense and shall be punished by imprisonment in a county jail for not more than one year or in the state prison:

(1) Knowingly and maliciously prevents or dissuades any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law.

(2) Knowingly and maliciously attempts to prevent or dissuade any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law.

Let me add that, as an attorney, I find the crime of intimidating a witness to be particularly reprehensible. Justice cannot be served without free access of witnesses to testify at court without fear of harm. Nevertheless, I believe that the punishment reserved for a gang-member accused of a Penal Code §136.1 offense as punishable under Penal Code §186.22 to be equally unjust under the law, and to embody the type of “cruel and unusual punishment” prohibited by our Constitution.

Imagine a situation where a group of gang members and a group of professional athletes are all out at a nightclub. A fight breaks out over a spilled drink. The gang members and professional athletes all throw punches, and as they are running away from the police and nightclub security they yell at the patrons “nobody had better say anything about this.” The gang members make gang -gestures with their hands, and one of the professional athletes does a bizarre “lights-off” dance. Though the professional athletes and gang members are all guilty of dissuading witnesses to the fight, violating Penal Code §136.1(a), the athletes are at worst exposed to three years in prison, while the gang members are exposed to a life sentence.

As stated in my previous blog on this subject, gang members are subject to the special indeterminate sentence punishments of Penal Code §186.22:

(4) Any person who is convicted of a felony enumerated in this paragraph committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, be sentenced to an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of:

(A) The term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any period prescribed by Section 3046, if the felony is any of the offenses enumerated in subparagraph (B) or (C) of this paragraph.

(B) Imprisonment in the state prison for 15 years, if the felony is a home invasion robbery, in violation of subparagraph (A) of paragraph (1) of subdivision (a) of Section 213; carjacking, as defined in Section 215; a felony violation of Section 246; or a violation of Section 12022.55.

(C) Imprisonment in the state prison for seven years, if the felony is extortion, as defined in Section 519; or threats to victims and witnesses, as defined in Section 136.1.

So, for a professional athlete to “knowingly and maliciously prevent or dissuade any witness or victim from attending or giving testimony at trial,” committing the offense of Penal Code §136.1(a), the athlete may be punished by a year in county jail or 16 months/2 years/3 years in State Prison. For a gang member to commit the exact same offense, under the same set of facts, the gang member will be subject to an indeterminate sentence of 10 years to life in prison for the Penal Code §136.1 offense (3 years for the base offense + 7-Life under Penal C ode §186.22(4)(c).

Like I mentioned in my last blog, theoretically the gang members would be eligible for parole after ten years, but their chances of parole are smaller than a gnat’s eyelash. Little Johnny, if you are still reading, don’t join a gang!

Gang Enhancement Math; 1 + 1 + 1 = Life in Prison

Marc S. Kohnen — Wed, 03 Feb 2010 06:03:00 GMT

Gangs are bad, let’s all agree on that for a starting point (take that, all you members of law enforcement reading this right now who thought we’d never agree on anything). There’s no good reason or moral justification to join a street gang. Everyone knows gang members commit acts of violence, break the law, and are often a source of fear to the law-abiding members of their usually poor communities. On a related note, gang members tend to be pretty bad crooks. What I mean by that is, unlike sophisticated criminals, gang members tend to broadcast their criminal exploits which is why they are always in legal trouble (who would think that bragging about crime on Myspace would be a bad idea). Kids, if you are reading this, don’t join a gang – the juice isn’t worth the squeeze.

Of course, if you ask some of the youth in the barrios or ‘hoods, particularly those without stable upbringings or family structure, membership in their local gang provides them protection from a mean and dangerous world outside their front door, and a source of love and acceptance sadly absent at home. I’m no sociologist, but it seems pretty simple to me; so long as poor communities exist, where crime rates are rampant, gangs will form for protection from the other dangers. Historically, in America, ethnic gangs originally formed for protection from other ethnic groups. No doubt that the existence of gangs only serve to exacerbate the crime and danger already in their communities, but even without the gangs it’s still a dangerous world out there.

Today’s blog assumes that a group of three “gang members” commits a crime vs. a group of say, three lawyers who commit the same offense. I won’t get into the process of how an individual (or gang) becomes documented, we’ll save that for another time, but the hypotheticals which follow assume that the group of “gang member” defendants are bona-fide ride-or-die gangbangers (and as not to over-complicate the point of this blog, also meet the legal definition of documented gang member, and have demonstrated a previous “pattern of criminal activity”).

Hypothetical #1 – I (Lawyer) get 7 years max, you (Gangbanger) get 15 to Life

A group of friends are having a party, attended by the three lawyers and three gang members. Everyone is drinking and having a good time. The carne asada is fabulous. Next thing you know, the host of the party comes running downstairs and says his daughter was raped by some guys who ran away into a house next door (anyone seen/read “A Time to Kill”?). Enraged, one of the three lawyers grab a gun, then they all run to the house next door together, gun in hand. Next, the first lawyer hands the gun to his second lawyer friend, while the third lawyer encourages the second lawyer to shoot the weapon at the house next door. The second lawyer fires the gun into the living room window. No one is wounded or killed as a result of the gunshot.

California Penal Code §246 (Discharge of a Firearm at an Occupied Building) states:

Any person who shall maliciously and willfully discharge a firearm at an inhabited dwelling house, occupied building, occupied motor vehicle, occupied aircraft, inhabited housecar, as defined in Section 362 of the Vehicle Code, or inhabited camper, as defined in Section 243 of the Vehicle Code, is guilty of a felony, and upon conviction shall be punished by imprisonment in the state prison for three, five, or seven years, or by imprisonment in the county jail for a term of not less than six months and not exceeding one year.

Under the aiding and abetting theory of criminal liability, all three lawyers are equally responsible for the crime of Penal Code §246. As a non-gang members though, the three attorneys who committed this crime are exposed to no further punishment than the statutory maximum punishment for a single violation of Penal Code §246 – 7 years.

Now, assume for a moment, that the lawyers were busy watching football when the rape was reported, and instead of the lawyers, it was the three gangbangers who grabbed the gun and shot into the house. Because the gangbangers are eligible to be punished under Penal Code §186.22(b)(4):

(4) Any person who is convicted of a felony enumerated in this paragraph committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, be sentenced to an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of:

(B) Imprisonment in the state prison for 15 years, if the felony is a home invasion robbery, in violation of subparagraph (A) of paragraph (1) of subdivision (a) of Section 213; carjacking, as defined in Section 215; a felony violation of Section 246; or a violation of Section 12022.55.

With all other things being equal, the gangbangers are looking at 15 to Life, while the lawyers are looking at 7 years max for the same offense. In all likelihood, a judge wouldn’t give the lawyers an upper-term sentence anyway, so they get to go home after four years while the gangbangers never go home. Theoretically, the gangbangers would be eligible for parole after fifteen years, but their chances for parole are slimmer than Lindsay Lohan. Still want to join that gang, little Johnny?

To be Continued…

Monday Mugshot Photo Fun!

Marc S. Kohnen — Mon, 18 Jan 2010 22:30:00 GMT

http://www.thesmokinggun.com/archive/years/2010/0108102mugs1.html If you are soaked and desperately need a chuckle on this rainy Monday, please click the link below to see this weeks' winners (not sure "winners" is the right word) of The Smoking Gun's Monday Mugshot Roundup. Who says getting arrested has to be a somber experience?!?

March Madness Office Pools - Now 100% Felony Free!

Marc S. Kohnen — Fri, 01 Jan 2010 08:25:00 GMT

In a day of many firsts; the first day of a New Year and decade, on a personal note - my first attempt at a website blog, today also marks the first day of California’s new common-sense approach to decriminalizing office and private betting pools. Under the definition of law as it had previously existed, the same co-worker who organized your office March Madness betting pool for the past ten years, or your friends who threw the Super bowl Party last year where to make the event “more interesting” everyone bought $5 halftime and final score “Squares”[1], could have been punished by a Felony Conviction and $1,000 fine even though your co-worker or friends kept no fee for the service (since everyone knows it’s all for fun anyway). Many otherwise law-abiding Californians have run office pools for years, knowing that maybe it wasn’t exactly lawful, but probably not realizing they could have faced felony charges, and up to a year in jail. Surely, prevailing logic held for most that even if it wasn’t exactly legal, law enforcement would turn a blind eye to this type of conduct, with all of the other real criminals out there to bust.

Of course, that’s also how Margaret Hamblin, a 76 year old grandmother felt in 2006, that was until she was arrested and charged under the previous language of Penal Code §337 for running a $50 total jackpot football pool as the bartender at the Elks Lodge in Riverside, California. Ms. Hamblin was arrested and booked, for having set up a winner-take-all jackpot for ten of her customer’s $5 bets. Ms. Hamblin kept no profit from the football pool. “The old law was so archaic it was ridiculous. You could get in trouble if someone puts a quarter in a pool,” said Hamblin, who was fined $130 and had her fingerprints and mug shot taken after she was cited for running a betting pool.[2]

In response to the draconian punishment that existed under the previous version of the law, Assemblyman Kevin Jeffries, R-Lake Elsinore, first introduced a proposal to change the penalties of PC §337 in 2008, after he found out about Ms. Hamblin’s ordeal. California AB 58, which decriminalized office pools by reclassifying the offense as an infraction rather than felony or misdemeanor, was signed into law by Governor Schwarzenegger in August of 2009 and takes effect today (January 1, 2010)[3]. So rest a little easier Ms. Hamblin and Rick Neuheisel[4] (UCLA’s new football coach); so long as the amounts involved do not exceed $2,500 and the organizer keeps no profit, if you get busted for running an office March Madness pool this year, you won’t be committing a felony or putting yourself in jeopardy of a consequence worse than a speeding ticket.

Marc Kohnen is a San Diego criminal defense and DUI lawyer in private practice. Please call him at (619) 398.2500 if you have been arrested or contacted by police investigating a criminal offense.

[1] A winner-take-all game of chance, similar to bingo but decided by the outcome of a score in a given game or sporting event, paying the jackpot to the winner whose numbered squares (drawn from a hat at random) aligned to coincide with the game’s final score.

[2] http://articles.latimes.com/2009/aug/07/local/me-schwarzenegger-bills7

[3] http://www.aroundthecapitol.com/billtrack/analysis.html?aid=25791

[4] http://www.seattlepi.com/huskies/125424_neu06.asp