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Tuesday, September 18, 2018

Attorney-Client Privilege Breach

attorney-client privilege
Most people, even those who have never had a run-in with the law, understand that when they speak to their attorney, it is considered privileged. A lawyer cannot breach attorney-client-privilege without the permission of their client. What is more, people awaiting trial in jail expect that any phone calls with one’s attorney are confidential; such discussions are not – should not – be made available to law enforcement officials. Unfortunately, that is not always the case in Florida, and now in California, as well.

Individuals currently serving time in penal institutions across the country are allowed to make phone calls at certain times of the day. Outgoing calls are typically made on phones with warnings attached that communication is being recorded; anything incriminating can be used against the inmate. However, the disclaimer about recording applies only to non-legal-related correspondence.

The phone system is supposed to stop recording when it becomes apparent that a privileged conversation is taking place. However, a new report reveals that the Orange County jail’s telephone carrier has improperly recorded 1,079 attorney-client discussions. It turns out that this is not the first time that GTL, the phone carrier, has violated attorney-client privilege, The Orange County Register reports. GTL also “accidentally” recorded privileged conversations in Florida.

Attorney-Client Recordings

George McNitt, vice president of technical services for GTL, testified that the phone calls in question were recorded by mistake, according to the article. McNitt argues that “human error” results in 1,300 attorney phone numbers not be added to the system as “do not record” when GTL’s software underwent an upgrade back in 2015.

Everyone can agree that over a thousand attorney-client conversations were recorded improperly; and, maybe it was all a big glitch that can be corrected to avoid repeat occurrences. Still, there is evidence that privileged calls were not purged from the system, and GTL records show Orange County deputies “listened to or downloaded attorney-client recordings” 77 times and one deputy accessed the recordings 33 times,” writes The OC Register. In a later report, the O.C. Deputy Public Defender Sara Ross told Superior Court Judge Gregg Prickett that the list was inaccurate, the number is probably much higher.

An investigation is currently underway to unravel this case, and certain recorded defendants are attempting to have their cases thrown out over the mishap.


Orange County Criminal Defense

Please contact the Law Office of Ronald G. Brower if you or a loved one are facing criminal charges in the state of California. With decades of experience, Attorney Brower can advocate for you or your family member, ensuring the best possible outcome is achieved.

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Tuesday, September 11, 2018

AB 1810 Gives Judges Greater Power

AB 1810
Those who are incompetent to stand trial or ISTs are at the center of controversy in California following the signing Assembly Bill 1810. The new law, signed by Governor Jerry Brown earlier this summer dramatically changes the criminal justice system in California, it allows judges to order community mental health treatment instead of prosecution for certain people accused, The Los Angeles Times reports. Opponents of the legislation contend that violent criminals who claim to suffer from mental illness will go free.

AB 1810, or the mental health diversion law, is one of several criminal justice reforms in California that are part of an effort to – among other things – reduce the state’s jail and prison population. Other notable bills along the same vein include AB 109, Propositions 47, and Prop 57. At the heart of AB 1810 is expanding diversion of mentally ill defendants from the criminal justice system; and, to help IST become competent to stand trial in the future.

An Op-Ed from The Times Editorial Board points out that those deemed incompetent to stand trial are supposed to be remanded to one of a small number of California state hospitals; once there, such individuals will undergo treatment until they are determined mentally fit to stand trial. The article states that most people get better in treatment, and eventually have their day in court.

Mental Health Diversion Law

Since there is a limited number of hospitals equipped to take in those charged with a crime, what has historically happened is such ISTs are housed in local detention centers. The lack of beds available in hospitals almost guarantees the above trajectory; and, when ISTs are jailed their mental state typically worsens. The goal of AB 1810 is helping people who have a history of mental illness receive treatment; but, those opposing the measure say that judges may end up giving murderers and rapist a pass—ruling in favor of treatment over jail.

Defendants who can prove a history of mental illness can request that judges suspend criminal proceedings and divert them to mental health treatment, provided however that a defendant can show he or she isn’t a risk to the public, according to the editorial. The length of treatment can go on for two years. After the treatment comes to an end, the presiding judge can decide to prosecute or dismiss the charge altogether. The argument over the bill has at least two-facets, will this legislation put the public at risk and who should hold power to decide how such cases are handled—prosecutors or judges.

Orange County Criminal Defense Attorney

The Law Office of Ronald G. Brower can advocate for you or a loved one facing criminal charges in California. Attorney Brower brings more than 30 years of legal expertise, experience, and understanding of the law to the table and can help secure the best possible outcome for your case. Please contact our office today to learn more.

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Tuesday, September 4, 2018

Gov Brown Signs SB 10 Ending Money Bail

Money BailLast year, the California Senate passed Senate Bill 10; the legislation aims to do away with cash bail in favor of judges’ discretion. At the end of August, Governor Jerry Brown signed the SB 10, hereby abolishing money bail, according to The Washington Post. California once again leads the way regarding criminal justice reform, Gov. Brown’s endorsement makes the Golden State the first in the nation to end the controversial practice.

Earlier this summer, we shed some light on the practice of cash bail, and how it keeps the poorest of Americans in jail awaiting trial – not because they put public safety at risk – because they can’t afford bail. Approximately 90 percent of people detained pretrial are locked up because they can’t cover the cost of the bond, according to a report from UCLA's Luskin School of Public Affairs. When individuals are locked up for not being able to afford bail, they risk losing their job, neglecting their financial responsibilities, and losing their children.

“A person’s checking account balance should never determine how they are treated under the law,” California Lt. Gov. Gavin Newsom (D) said in a statement. “Cash bail criminalizes poverty, and with Gov. Brown’s signature today, California has opened the door to pursue and perfect a just pretrial system.” 

Pretrial Risk Assessment

Some Californians are likely to wonder what happens now when one is arrested for a misdemeanor or felony? Naturally, each case will be handled differently, but getting out of jail before pretrial will hinge on Pretrial Assessment Services and at the decision to release a person on their own recognizance will ultimately fall on the judge presiding over the hearings.

While the abolition of money bail is stepping in the right direction concerning equality, some last-minute changes to the legislation before Gov. Brown inked his name now has criminal justice reform groups at odds with the bill, the article reports. Organizations, including the American Civil Liberties Union, Human Rights Watch, Civil Rights Corps and California Attorneys for Criminal Justice, have concerns that the amended measure may likely lead to a jump in pretrial incarceration owing to judges’ generous discretion in determining who jeopardize public safety or may go on the run upon release.

Starting October 2019, people charged with certain misdemeanors no longer have to appear before a judge and will be released within 12 hours. In other instances, those facing charges are subject to a “risk assessment,” to determine if they are “high risk.” Criminal justice reform advocates fear how a judge will decide who fits the bill. And, what subjective criteria or bias might a presiding judge harbor that could factor into their decision to deem someone as high risk and not eligible for release.

“Unfortunately, this amended version of [Senate Bill 10] is not the model for pretrial justice and racial equity that the ACLU of California envisioned,” the ACLU of California’s three executive directors in northern and southern California and San Diego said in a joint statement. “We oppose the bill because it seeks to replace the current deeply-flawed system with an overly broad presumption of preventive detention.”

California Criminal Defense Attorney

Anyone facing criminal charges in California can benefit from Attorney Ronald Brower’s decades-long experience. Please reach out to us to learn how can advocate for you or a family member, and achieve the best possible outcome given the circumstances of the case.

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Wednesday, August 22, 2018

Stand Your Ground Law In California

stand your ground
The phrase “stand your ground” is something we hear quite a bit these days. Some 27 states have adopted what is known as Stand-Your-Ground Laws; and, seven states, including California, have passed stand-your-ground in practice. Criminal defense attorneys in states like Florida cite the self-defense law regularly, recent cases of note include the trial of George Zimmerman which led to an acquittal for the shooting death of Trayvon Martin.

Naturally, people can find arguments for supporting or opposing stand-your-ground laws. Advocates say that duty-to-retreat laws put the safety of criminals above a victim. Opponents say that stand-your-ground laws make prosecuting cases against individuals who shoot others and then claim self-defense, a real challenge, according to MSNBC. If you consider a death that occurs and the only other witness to the incident is the victim: the killer can claim that his life was in danger, and the person who could have argued otherwise is dead. MSNBC reports that since Florida enacted the law, self-defense claims tripled in the subsequent years. Stand-your-ground is laid out in Dawkins v. State, 252 P.3d 214 (Okla. 2011), whereby the court wrote:

"[T]he 'stand your ground' law... provide[s] that a person has a right to expect absolute safety in a place they have a right to be, and may use deadly force to repel an intruder... for a person to be justified in using deadly force, the person must not be 'engaged in unlawful activity." 

Stand Your Ground In California

Stand-your-ground laws allow citizens to "stand their ground" and use force without retreating, to protect and defend themselves or others against threats or perceived threats. While California hasn’t enacted a stand-your-ground law, we do have something similar: the Castle Doctrine.  

Any person using force intended or likely to cause death or great bodily injury within his or her residence shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred.

Mostly, the Golden State takes a stricter stance on using force for self-defense; Californians do not have to retreat and can use deadly force if they are at home or place of business. In Florida, the use of deadly force is allowed regardless of where a person is or whether or not he or she has an opportunity to retreat.

"Here in California we use the Castle Doctrine that has some of the elements of the Stand Your Ground law," Sgt. Stephen Wells with the Kern County Sheriff's Office tells Bakersfield Now. "Basically if you're inside your home you're allowed to use reasonable force to protect yourself and other people in your home."

Orange County Criminal Defense Attorney

Please reach out to the Law Office of Ronald G. Brower if you or a family member are facing criminal charges in the State of California. Attorney Brower has the expertise, experience, and understanding of the law to help clients acquire the most favorable outcome.

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Wednesday, August 15, 2018

A Constitutional Challenge to the Felony Murder Rule

felony murder
At this time, there are hundreds of inmates serving exceedingly long prison sentences for their participation in crimes that involved murder, even though – they – didn’t kill anyone. The reality for such prisoners is the result of a state law that allows prosecutors to charge alleged criminals with second-degree murder if they are part of an “inherently dangerous” felony that leads to an unintentional death, according to the San Francisco Chronicle. Essentially, California’s felony-murder law gives district attorneys the authority to file murder charges without having to prove that the defendant intended to take a life.

While still uncertain and vehemently opposed by many California prosecutors, a federal appeals court cleared the way this month for a constitutional challenge to the state’s broad felony-murder law, according to the article. New legislation passed in the Senate, if approved and signed into law, would amend the constitution to exclude people from murder charges if they do not actually commit the killing or act with “reckless indifference” to human life.

“Inherently Dangerous” Felony

A defendant is charged with murder, under a theory of felony murder. In order to prove that the defendant is guilty of second-degree murder under the theory of felony murder, the State must prove that:
  1. The defendant committed [or attempted to commit] inherently dangerous felony or felonies;
  2. The defendant intended to commit an inherently dangerous felony or felonies; and,
  3. The defendant did an act that caused the death of another person. A person may be guilty of felony murder even if the killing was unintentional, accidental, or negligent.
The Ninth U.S. Circuit Court of Appeals in San Francisco decided that a man who is serving 19 years to life for a 1996 murder conviction could try to make a case that the California felony-murder law is unconstitutionally vague, according to the article. The court stated that the rule “takes an abstract approach to evaluating a crime’s dangerousness.”

“The risk threshold for an inherently dangerous crime is imprecise,” said Judge Ronald Gould. 

The decision opens the door for the constitutional challenge. We will continue to follow this critical story as it develops.


Orange County Criminal Defense Attorney

Please contact the Law Office of Ronald G. Brower if you are facing criminal charges in the State of California. With decades of experience, attorney Brower can give you the best shot at achieving a favorable outcome in your case.

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Thursday, August 9, 2018

Rolling Back Proposition 47 and Prop. 57 in 2020

Reducing Crime and Keeping California Safe Act
California criminal justice reform is a topic that is of the utmost importance to us at the Law Office of Ronald G. Brower. We work tirelessly to stay apprised of new legislation that can impact our clients; for example, in May we wrote about an effort to upend two bills signed into law that reduced certain felonies to misdemeanors (Prop 47) and made some nonviolent offenders eligible for early release (Prop 57). At the time of the post, the Reducing Crime and Keeping California Safe Act of 2018 was in the signature-gathering phase.

While many people support Proposition 47 and Proposition 57, there are a good many others who feel that the bills favor criminals and jeopardize the safety of citizens. There isn’t much evidence to support the above claims, in fact, the state Department of Justice has data showing that criminal justice reform policies are working. Nevertheless, some cities and counties would like to roll back such reforms.

Last month, the Reducing Crime and Keeping California Safe Act of 2018 received enough signatures to bring the bill up for a statewide vote, according to NBC 4. However, it will be another two years before Californians can vote on the legislation.

Toughening Criminal Penalties Will Have to Wait

Supporters of the Reducing Crime and Keeping California Safe Act had hoped to get the required number of signatures and qualify in time for the 2018 ballot but were unable to do so, according to the article. Advocates of Prop 47 and 57, say that the failure to qualify for a vote this year is indicative of the bill’s lack of support. But, we will have to wait and see how the voters lean in 2020.

If voters approve the legislation in question in 2020, it would mean shortening the list of people eligible for earlier parole, the article reports. It would reclassify the crimes that went from being a felony to misdemeanors, back to felonies again. The bill also seeks to expand the group of crimes that require the collection of DNA samples. It is worth noting that Gov. Jerry Brown opposes the Reducing Crime and Keeping California Safe Act, stating:

"Read the fine print. This flawed initiative would cost taxpayers tens of millions of dollars and endanger public safety by restricting parole and undermining inmate rehabilitation."


Orange County Criminal Defense Attorney

Attorney Ronald G. Brower has more than three decades of experience advocating for clients and generating favorable outcomes in California. If you're in legal trouble, Attorney Brower can help you achieve the best results possible. Please contact our office to learn more.

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Wednesday, August 1, 2018

Turner's Sexual Assault Conviction Appeal

sexual assault
The Brock Turner case is back in the news, again, following the former Stanford swimmer’s attorney’s appeal to have the sexual assault conviction overturned. If the nature of this case was remarkable enough, from slap-on-the-wrist sentencing to the first judicial recall in more than 80-years, it just took another somewhat unbelievable turn.

If you are just tuning in for the first time, we will take a minute to bring you up to speed. In 2015, the then 19-year old Turner was caught sexually assaulting a fellow student at a frat party. Without getting too graphic, let’s just say that the witnessed Olympic-hopeful actions led to a jury finding him guilty of multiple crimes, including:
  • Assault with intent to commit rape.
  • Sexual penetration of an intoxicated person with a foreign object.
  • Sexual penetration of an unconscious person with a foreign object.
You might say to yourself, such crimes call for severe punishment. However, presiding Judge Aaron Persky thought otherwise, sentencing Turner to 6 months in jail. When it was all said and done, Brock was released after three months, ordered to probation, and had to register as a sex offender.

Outercourse vs Intercourse

Turner’s attorney, Eric Multhaup, stood in front of a three-judge panel arguing that his client was committing an act of "sexual outercourse," and Brock did not demonstrate that his intentions were to rape the victim, according to NBC News. Multhaup says "outercourse" does not involve vaginal sex and is a "version of safe sex."

Dean Johnson, a legal analyst and defense attorney, points out that the defense’s line of reasoning would have people think that since Turner was clothed, he shouldn't have been found guilty of assault with intent to commit rape, the article reports.

"I absolutely don't understand what you are talking about," Justice Franklin Elia of California's 6th District Court of Appeal, told Multhaup.


Southern California Criminal Defense Attorney

Please reach out to the Law Office of Ronald G. Brower if you or a family member is facing criminal charges. Attorney Brower is committed to helping each client receive the best possible outcome in their case. With more than thirty years of experience, you can trust that you’re in good hands.

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