Lyrically Guilty, Factually Innocent?

October 29, 2014,

If we were to take music lyrics literally, we would have to believe that Eminem’s ex-wife is rapper.jpgsomewhere at the bottom of a lake. We would have to take it as fact that Johnny Cash shot a man in Reno just to watch him die. Of course, Bob Marley would have been charged for shooting the sheriff (but not the deputy).

As ridiculous as the notion of interpreting song lyrics as evidence of a crime may sound, it is actually part of a current debate in criminal law. In the past few years, song lyrics have become part of the evidence in several criminal cases. Last month, a Kansas judge ruled that rap lyrics written and performed by Phillip D. Cheatham, Jr., will not be heard by the jury in his double-murder retrial. The prosecution argued that the lyrics are a confession to the murders of two women. Cheatham’s lawyer argued that many artists use songs to tell fictional stories. 1

Another rapper from Virginia, Twain Gotti (birth name: Antwain Steward), was tried for the killing of two men. A song he wrote contains these lyrics: “But nobody saw when I [expletive] smoked him/Roped him, sharpened up the shank, then I poked him/ 357 Smith & Wesson beam scoped him.” Though he was acquitted of the murders, Steward is now serving 16 years in prison for weapons charges. 2

“Prejudicial or Probative?”

Ultimately, the question about whether lyrics could be evidence in a case depends on the judge. In both federal 3 and California 4 state courts, the judge has the discretion to exclude evidence if he or she finds it to be more prejudicial than probative. In other words, the judge decides if the evidence should be heard by the jury or whether it will waste time, confuse issues, mislead the jury, or unduly create a bias against the defendant.

This rule allows judges to prevent evidence from being introduced that is only designed to get an emotional reaction out of the jury, and would make it more difficult for them to fairly evaluate the evidence of the case.

“Our raps are documentary. We don't take sides.”

Those are the words of Ice Cube, one of the founding members of N.W.A., in an interview he did shortly after the release of the group’s record-breaking album, “Straight Outta Compton.” 5 Cube stated that the group’s edgy and controversial lyrics about violence, drugs, and corruption within police agencies were designed to expose people to life in the poorest neighborhoods of South Central Los Angeles and came from stories they heard.

“We use the same kind of language as the kids use every day. In the black community, the ministers and teachers don't deny that the problems we rap about exist, but they'd rather sweep it under the rug. Maybe that's why we sell so many records(…)”

The same is true of narcocorridos, which are enormously popular Latino folk songs about the violent world drug cartels. The stories told by the lyrics are often about brutal executions, kidnappings, and drug deals gone wrong.

“It is over the top and it's meant to be over the top," explains Elijah Wald, author of the 2002 book "Narcocorrido: A Journey into the Music of Drugs, Guns and Guerillas." "To some extent it's like the hyper violence in slasher movies where the fans are laughing and saying 'Oh my God, did you see that?''' 6

A Dangerous Precedent

Allowing song lyrics into a criminal prosecution could prove to be highly prejudicial to a defendant. Many of these songs are accounts of stories that the artist heard from someone else. In addition, the details of the events on which the lyrics are based are often exaggerated for shock value, and though some have a connection to reality, they are usually heavily fictionalized.

These facts alone make song lyrics unreliable accounts of events, and are more likely to anger a jury, making it impossible for them to look past the emotional impact of the lyrics and at the true facts of a case.

Contact the Defense Attorneys at Wallin & Klarich

If you or someone you care about has been charged with a crime, you will need an experienced and aggressive attorney to help you with your case. At Wallin & Klarich, our attorneys have been successfully defending clients accused of criminal activity for more than 30 years. Let us help you, too.

With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, there is an experienced Wallin & Klarich criminal defense attorney near you no matter where you work or live.

Call us today at (888) 280-6839 for a free phone consultation. We will be there when you call.

1. []
2. []
3. [Fed. R. Evid 403: “The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”]
4. [Cal. Evid. Code Section 352: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”]
5. [Mark Cooper, “NWA: 'Our raps are documentary. We don't take sides’'’, The Guardian, October 1989. The interview was republished on August 7, 2013, and is available at]
6. [ Deborah Hastings, “'Narcocorridos,' the popular Latin music styled after American hip hop, bring about bloodshed and Grammy wins,” New York Daily News, December 17, 2013, available at]

Should Smoking and Drinking While Pregnant Make You a Criminal?

October 27, 2014,

Should a woman face criminal prosecution for child abuse if she smokes, uses drugs, or drinkssmoking%20wiki.jpg during pregnancy? That is the debate that many states have wrestled with for decades. For example, in the case of Cornelia Whitner, South Carolina’s Supreme Court ruled that she could be criminally liable for using cocaine during her pregnancy. 1 However, the court’s ruling did not stop at the use of illegal drugs. The court stated that the rule would apply to both legal and illegal substances, meaning that a pregnant woman in South Carolina could be charged with child abuse for smoking a cigarette or drinking a glass of wine.

Other states have followed this line of thinking. Tennessee has a law that makes it a misdemeanor to drink or use illegal drugs during pregnancy if the child is born addicted to those substances. 2 Hawaii has considered laws making it a felony for endangering the welfare of a minor to consume alcohol or drugs during pregnancy. In addition, Arizona, Florida, Georgia, New York, Massachusetts, and Nevada are all states where prosecutors have tried unsuccessfully to secure convictions for pregnant women under similar charges. 3

California’s Approach to Child Abuse Crimes

Child abuse crimes in California generally fall under two broad categories: physical abuse and child endangerment. Physical abuse crimes under California Penal Code Section 273(d) require willful infliction of cruel punishment and/or an injury to a child that causes a traumatic condition, and the action was not part of a reasonable punishment of the child. 4

Under Penal Code Section 273(a), a person could be guilty of child endangerment if they cause or permit a child to suffer unjustifiable physical pain or mental suffering; willfully cause or permit a child in their care to be injured; or willfully cause or permit a child to be placed in a dangerous situation. 5 If a woman were to be charged because she smoked tobacco, drank alcohol, or used illegal drugs while pregnant, it would likely be for causing a child to be placed in a dangerous situation, which does not require any actual injury to the child. Placing a child in a situation where harm is probable is enough under 273(a).

Treatment, Not Trial

If the state were to prosecute pregnant women, it would criminalize some behaviors that are otherwise legal and punish women for crimes for which no male could ever be convicted. However, California’s approach has not been to punish women for addictive behavior while pregnant. Instead, in 2012, the California legislature changed Health and Safety Code Section 11757.59 to provide funding for treatment programs designed to help pregnant women and new mothers resolve problems with addiction to alcohol or other drugs.

By not criminalizing this type of action, California is taking the right approach. Emphasizing treatment instead prosecution avoids the problem of scaring off women who would be afraid to go to a doctor for medical care during pregnancy or from seeking treatment for these addictions while pregnant. It allows women who struggle with addiction to have access to these programs when they need it most without fear of being arrested, and could reduce the chances that their child will be born with severe health problems. Most importantly, California’s approach reduces the chance that a woman with an addiction to alcohol, tobacco, or other drugs would turn to abortion as a means to avoid prosecution.

Share Your Feedback With Us

We at Wallin & Klarich would like to hear from you about this topic. Do you agree with California’s policy of not prosecuting women for smoking, using drugs, or drinking while pregnant? What are some of the reasons you see that would make this either a good or bad idea? Please feel free to leave your comments below.

1. [Whitner v. State, 328 S.C. 1, 492 S.E.2d 777 (1997)]
2. []
4. [Cal. Pen. Code §273(d).]
5. [Cal. Pen. Code §273(a).]

Should Public Shaming Be Part of Punishment for Prostitution Crimes?

October 24, 2014,

Life in the Massachusetts Bay Colony was a strange one for crime and punishment. In thoseScarletA.jpg days, the Puritans considered it a criminal offense to cheat on one’s spouse. One of that crime’s punishments was made famous by the Nathanial Hawthorne novel, The Scarlet Letter. The convicted person would be forced to wear a large, scarlet-colored “A” on their clothing, which told anyone in sight of the convicted person that he or she had committed adultery.

Fast-forward almost 400 years later to life in the city of Anaheim. On September 23, the City Council unanimously approved an ordinance that would give the scarlet letter punishment a modern twist. If a person is arrested, charged, and convicted of soliciting a prostitute, his or her name will be posted on a list that the city will publish online. Since 2011, 187 arrests have been made for prostitution in Anaheim. Those arrests include all players in the crime: pimps, prostitutes, and clients (or “johns”).

Public Shaming: Punishing People for Being Lonely

The public shaming of johns is nothing new. Last year, the Orange County District Attorney’s Office began posting a list of people convicted of prostitution on its website, and it distributes the list to local news media. Anaheim is the only city in the county that handles its own misdemeanor prosecutions, and the new ordinance will bring the city in line with the rest of the county on this issue.

What is different is that Anaheim officials have made it clear that the only people targeted by this policy are the customers. The sex workers will remain anonymous, but the guy or gal who made the mistake of hiring a prostitute will get to see their name in the newspaper and posted online. Not only will they see it, but so will their family, friends, employers, ministers, and anyone else who cares to take a look.

One of the central ideas behind our criminal justice system that we celebrate is that it gives good people who make a mistake a second chance. They pay their debt to society, then move forward with their lives and put the past behind them. Publishing the names of people who are convicted of prostitution – something that the Orange County Register does not consider a good idea 1 – places that past under a spotlight, where it remains long after the price for the crime has been paid.

Scarlet letters are relics of the past. The City of Anaheim and Orange County ought to consider leaving this punishment to the confines of history.

Share Your Feedback with Us

We at Wallin & Klarich would like to hear from you about this topic. Should Anaheim and Orange County continue to publish the names of people convicted for soliciting prostitutes, or is this a punishment that goes beyond the crime? What are some of the reasons you see that would make this either a good or bad idea? Please feel free to leave your comments below.

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Can a Man Use Self Defense Against a Woman in a Domestic Violence Case?

October 20, 2014,

What happens if you are forced to defend yourself against your domestic partner and she callsSelf%20Defense.jpg the police on you? Is self defense a legal justification for the use of force, even if you’re a man and your domestic partner is a woman? In California, the answer is yes.

California prosecutes domestic violence aggressively, but the violent party isn’t always a man. The law recognizes that women can be guilty of domestic violence, and if you are in fear of imminent bodily harm or of being unlawfully touched, you can use force to defend yourself.

If you are forced to defend yourself against your wife or girlfriend’s physical assault, and she then calls the police on you, you can assert that you acted in self defense.

What Elements Constitute Self Defense in California?

According to California Criminal Jury instructions (CALCRIM 3470) 1 use of force is justified if

  • You reasonably believed you were in immediate danger of being injured or touched unlawfully
  • Immediate use of force was necessary to defend yourself, and
  • You didn’t use more force than was necessary to defend yourself from the attack.

Further, if you’ve been threatened or harmed by your domestic partner in the past, you may be justified in acting quicker and with more force to ward off another attack.

I Was Taught that a Man is Not Supposed to Hit a Woman

It’s true that it is always a better option to leave before an argument gets violent, whether you are arguing with a woman or a man. But once somebody threatens you with violence, you have a right to stand your ground and defend yourself until the danger has passed, even if you also have an opportunity to retreat.

What Happens if the Other Party is Injured?

If you were in imminent danger and you acted in self defense, it’s possible that your spouse will be left with a bruise or other injury. If you used reasonable force to defend yourself, self defense is justifiable even if she sustains an injury. A jury may consider any or all of the following:

  • What she did to threaten you or put you in fear of harm
  • How much force was necessary to ward off the attack
  • Whether she has a violent history

What if I was Defending Someone Else?

If another person, like a guest in your home or one of your kids, was in imminent danger of attack from your domestic partner, you have a right to use force to defend them. The same rules apply as if you were defending yourself.

Call the Criminal Defense Attorneys at Wallin & Klarich Today

If you or a loved one has been charged with domestic violence, you need to talk to an experienced criminal defense attorney immediately. At Wallin & Klarich, our attorneys have over 30 years of experience successfully defending people facing domestic violence charges.

With offices located in Los Angeles, Sherman Oaks, Torrance, Orange County, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, there is an experienced Wallin & Klarich criminal defense attorney available to help you no matter where you work or live.

Call us today at (877) 4-NO-JAIL or (877) 466-5425 for a free phone consultation. We will be there when you call.

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Will You Still Be Charged with Hit and Run if You Return to the Scene? (California Vehicle Code 20001, 20002)

October 13, 2014,

If you are involved in a car accident, you might panic and leave the scene. You may have been in shock when you got into the accident and thought your best option was to get away from the area. After the shock wore off, you probably realized you made a mistake.

You should never leave the scene of an accident, but if you do, you should return immediately. Our attorneys wish to share with you why you should never flee the scene of an accident.

What is Hit and Run?

Hit and run is defined as leaving the scene of a car accident in which property damage, injury or loss of life occurred.Hit%20%26%20run%202.jpg

California Vehicle Code 200011 governs hit and run where serious injury or death results. You are legally required to stop your car immediately and assist any injured parties if you are involved in an accident.

California Vehicle Code 200022 governs accidents where property damage occurs but there is no physical injury. Under this law, you must stop your vehicle at the nearest safe location without impeding traffic if you are involved in an accident.

Consequences of Hit and Run

CVC 20001 is a wobbler offense, meaning you could be charged with a felony or a misdemeanor depending on the seriousness of the injury and other factors of your case. If you are convicted of misdemeanor hit and run causing injury or death, you could be sentenced to up to one year in jail and fined up to $10,000.

If you are convicted of a felony violation of CVC 20001, you could be facing up to three years in jail and fines of up to $10,000.

If you are accused of hit and run under CVC 20002, you will be facing a misdemeanor offense. If convicted, you could be facing up to six months in jail and a $1,000 fine.

What Happens if I Left the Scene of an Accident and Returned?

Nobody can predict how they’ll respond if they’re hurt or scared. Even a reasonable person can make the mistake of leaving the scene of an accident. If you are involved in a collision and leave the scene, it is not too late to avoid the harsh consequences of a hit and run conviction by returning. The fact that you returned to the scene could be a mitigating factor that the court will take into consideration during your case. This could lead to a lesser sentence if you are convicted.

Additionally, returning to the scene of the accident could help create a defense that you were looking for a safe place to pull over. Your attorney can argue that you left the scene of the accident only to find a safe place to stop, but returned when you failed to find somewhere closer to park.

Call Wallin and Klarich Today if You or a Loved One is Facing Hit and Run Charges.

If you are accused of leaving the scene of an accident, your next step should be to speak with an experienced criminal defense attorney right away. At Wallin & Klarich, our skilled attorneys have been successfully defending clients facing hit and run charges for over 30 years. We know how to prepare a winning defense strategy that will help you achieve the best possible outcome in your case.

With offices located in Los Angeles, Sherman Oaks, Torrance, Orange County, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, there is an experienced Wallin & Klarich criminal defense attorney available to help you no matter where you work or live.

Call us today at (888) 280-6839 for a free phone consultation. We will get through this together.

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What Happens When the Police Fail to Preserve Evidence?

October 8, 2014,

It’s a Saturday night and you get picked up by some of your friends. You have no idea that they were involved in a robbery just 20 minutes earlier. A few minutes later, police pull the vehicle over and you are arrested in connection with the robbery even though you are unaware it took place.

This would be very frustrating for you, especially if the cops have access to video surveillance footage that proves your innocence. Luckily, a skilled attorney may be able to prove to the court that law enforcement did not make an effort to preserve evidence in your case and the charges against you could be dropped, as proved by a recent Court of Appeals case.

Police Fail to Obtain Video Evidence in Robbery Case (People v. Alvarez)

In 2012, Jose C. was leaving Downtown Fullerton when he was robbed of his gold chain. He followed the alleged robbers until he could flag down a police officer along the route. Law enforcement stopped the men, identified as Daniel Alvarez, Jr., Michael Cisneros and Juan Renteria. Jose C. confirmed Renteria robbed the chain while Alvarez and Cisneros backed him up.
The gold chain was recovered about 50 feet away from the area. Cisneros insisted he had nothing to do with the robbery and asked the senior officer on the scene to check any security footage available. The officer said there were no cameras in that location. All three men were convicted of violating California Penal Code Section 211 and 212.5. However, the officer was wrong about the video cameras.

According to court records, a security camera was set up in the parking lot where the robbery took place. Footage from the camera system typically was saved for two to two-and-a-half weeks. Officers could request to view the footage by phone or email, but law enforcement officials failed to do so in this case.

What Did the Court Decide?

On appeal, the court dismissed the case of Alvarez and Cisneros because the police and prosecution failed to preserve evidence that had the potential to prove their innocence. Because Renteria was convicted of committing the actual act of robbing the chain, his conviction was affirmed.

The court concluded that the police had committed a violation of the defendants’ constitutional rights when they failed to disclose potentially exculpatory evidence. The Fullerton police were aware of the potential usefulness of the footage and the policies regarding the security cameras, but still did nothing. This means that they acted in bad faith and Alvarez and Cisneros were not given due process.

What Does the Decision Mean for You?

The court’s decision protects your right to due process in a criminal case and your presumption of innocence until proven guilty. If there is any potential evidence, the police and prosecution are required to make an effort to obtain that evidence so that it can be shared with your attorney.

What do you think of the court’s decision? Should the police have made an effort to recover any video footage? Do you think law enforcement would have made an attempt to obtain the footage if they knew it would prove the men guilty? Please share your thoughts in the comments section below.

Ever Wonder Where the Judge Was When You Were Waiting for Your Case to be Called?

October 6, 2014,

As you sit anxiously in the, crowded, gloomy courthouse waiting for your case to be called, you glance at your watch. 30 minutes pass, then another 15, and then another, but still, no sign of the judge. Maybe he’s stuck in traffic, or maybe his car broke down. Whatever the reason for his tardiness, it must be for a valid reason, you naively think to yourself as the day continues to pass you by.

While all of these possible explanations for a judge’s tardiness appear to be reasonable, select individuals at the Orange County and Kern County Superior court may have found themselves waiting excessively for an entirely different reason - not because of an issue with their judge’s car, but rather, an issue with his morality.

Two California Judges Involved in Sex Scandal with Women Inside Their Chambers

Orange County Superior Court Judge Scott Steiner and Kern County Superior Court Judge Cory Woodward were punished by The Commission on Judicial Performance after they both admitted to having sex with women inside their respective chambers. 1
In 2012, Steiner had sexual intercourse with two women in his chambers, one, a former intern and the other, a practicing attorney within Orange County. Both women were also former law students of his at Chapman Law School. In addition to the sexual violations, Steiner also contacted the local district attorney’s office to secure a job for the intern – a direct violation of ethical rules.

From approximately July 2012 to May 2013, Woodward engaged in sexual intercourse with his married courtroom clerk and passed sexually overt notes to her while court was in session. According to the Commission on Judicial Performance, Woodward also refused to reassign the clerk despite multiple requests by coworkers. He also lied to the court’s chief executive when asked about the nature of his relationship with the clerk.

“When people in power relationships are engaging in sexual conduct with people they supervise, there is always a concern of impropriety” said Charles Geyh, an ethics expert and professor at Indiana University Maurer School of Law. 2

While the judge’s inappropriate conduct was hard to believe, the judges’ punishment (or lack thereof) came as an even bigger surprise to the general public and legal community alike.

Judges Who Admitted To Inappropriate Sexual Conduct Allowed to Remain on Bench

After a lengthy process, the state’s judicial watchdog agency chose to only censure both Steiner and Woodward, rather than to seek the removal of the judges. Many critics feel as if a public censure is far too light of a punishment as the judges continue to be allowed to sit on the bench.

Those opposed to the moderate discipline say that the judges’ behavior does not demonstrate the necessary qualities to serve within the court system. “In both cases, the incidents demonstrate that the judge involved lacks appropriate personal boundaries that are required for any individual to serve as a judge in my opinion” said former San Francisco County Superior Court Judge Katherine Feinstein. 3

Stanford Law School professor Deborah Rhode expressed similar sentiment, adding, “the justice system is predicated on the assumption that all participants be truthful in their professional dealings.”

It is important to note that there is no procedure in California that calls for the temporary suspension of judges, which other states have.

How Does Wallin & Klarich Feel?

The decision to publicly censure the judges for their shameful behavior rather than to expel them was absurd. The men deserved a much harsher punishment than they received and a public censure is nothing short of a slap on the wrist.comment.jpg

Canon One of the California Code of Judicial Ethics clearly states, “A judge shall uphold the integrity and independence of the judiciary.” 4

Engaging in sexual intercourse with former students and employees is one thing, but to do so inside your chambers, merely yards away from individuals who are in court facing allegations that they broke a law themselves? It is safe to assume that neither the integrity nor the independence of the judiciary were on the forefront of the judges’ minds while they were in their chambers with those women.

According to court documents, Woodward and Steiner’s saving grace was their recognition of wrongdoing and the fact that they appeared to be apologetic for their actions.

What Do You Think?

Do you think the judges should be able to remain on the bench after engaging in such behavior? Or, do you think a public censure is a fitting punishment for their actions. How would you feel if you had to wait for a judge while he was in his chambers having sex with a colleague? Let us know in the comment section, we would love to hear from you.

1. []

2. [Daily Journal – “Discipline of judges who had sex at work questioned” September 26, 2014]

3. [Id.]

4. []

Even Lawyers Need to Be Careful What They Post Online

October 1, 2014,

Remember the days of asking a celebrity for an autograph? If you spotted a Hollywood actor or famous musician, you had to find anything they could sign. Those days are gone. Autographs have been replaced with photos, and every celebrity is asked to stop and take a selfie that will be posted online for the world to see.

However, altering digital photos is now easier than ever. While everyone is on a quest to post the most epic celebrity selfies, some will use deceptive measures to do so. Recently, a California attorney was called into question for photos posted on her law firm’s website that seemed to be doctored to give the appearance that she was pictured with famous clientele.

When Ultimate Selfies Turn Out to Be Ultimate Lies

Attorney Svitlana Sangary mingled with the likes of President Barack Obama, George Clooney, Kim Kardashian and Morgan Freeman … well, at least it would appear that way from the photos posted on her law firm’s website.
According to a recent 18-page opinion written by State Bar Court Judge Donald F. Miles, “many, and perhaps all” of the photos were altered by overlaying photos of Sangary over pre-existing images of the celebrities. However, this was not just another social media mistake made in good fun.

Sangary and her law firm were using the images to promote their services. Using doctored photos to advertise future work constitutes false advertising. Miles said the “deceptive” images were designed to “deceive and mislead the public.”

Lowering the State Bar

Although many social media users who post altered photos only do so as a joke, Sangary’s fake celebrity interactions were taken very seriously by the California State Bar. Investigators originally contacted her about the images in December 2012, but the photos were still posted on the firm’s website two years later.

Sangary also previously failed to return a client file and did not cooperate during two disciplinary investigations. Factoring in her previous issues and her failure to respond to the finding of her altered images, Miles recommended to the Supreme Court that Sangary be suspended for six months. A decision from the Supreme Court is pending.

Always Be Careful What You Post Online

You don’t have to be a lawyer to make mistakes when posting online. This incident illustrates how important it is to think twice before sharing something online, whether it is an altered image or an innocent comment.

There have been many recent instances in which persons were arrested for a crime because they admitted to it on social media or simply forgot to log off of Facebook. 1 Even if you are not involved in a criminal act, it is important to know that your online activity will never be erased. Keep in mind that your virtual footprint is public for the world to see forever, and your online activity can be used as evidence against you at any time.

Innocent Prank or Deceiving the Public?

Sangray’s actions were determined by a judge to be deceptive and confusing. Do you agree with the judge’s ruling? Were Sangray’s altered photos a simple joke or were the images meant to deceive perspective clients? Do you think she should be punished for her actions?

At Wallin & Klarich, we value your opinion. We want to hear from you. Please leave a comment below with your thoughts.

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Could Taking a Photo of Certain Children Land You in Jail? (California Penal Code Section 11414(a))

September 26, 2014,

When people think of life in Southern California, one word often comes to mind: celebrities. The camera finds them sitting in the stands at Lakers, Kings, and Dodgers games. They are fixtures on the local news broadcasts every night. Our friends and families relate stories about who they ran into at the local shopping mall, or who they saw while they were out getting lunch. Even in an area where entertainment is a huge business, celebrity sightings always seem to capture our interest. paparazzi.jpg

For whatever reason, the public has a thirst for images of celebrities behaving like the rest of us. TMZ, Us Weekly, and the like are hugely successful media outlets that pay good money for photos of celebrities doing the most ordinary of activities. Entertainment reporter Stephanie Dubois summed it up this way: "As long as there are readers willing to pay to see ... their favorite celebrities in all their lesser glory, there will be editors willing to pay paparazzi whatever it takes to get the story." 1

Where there is that interest, there also lies a tension between the right of famous people to have a private life away from the public’s eye and the right of the press to make a living covering celebrities in the name of news. The tension in this fight is over when and where the paparazzi can operate, and what the freedom of the press guaranteed by the First Amendment allows them to shoot. On that front, California has taken steps to restrict the paparazzi when it comes to shooting photos of the ultimate prize in celebrity coverage: photos of a celebrity’s child.

California Gets Tough on Paparazzi

Under California Civil Code Section1708.8, the paparazzi can be sued for damages if they trespass onto private property for the purpose of taking photos, videos, or audio recordings, whether by physically entering the property or through the use of equipment such as a telephoto lens or a microphone. 2 However, due to recent efforts from actresses such as Jennifer Garner and Halle Berry, California now has a tougher law that can make a paparazzo’s photographing of the children of celebrities a criminal act. 3

In 2013, Governor Jerry Brown signed into law SB 606, which amends California Penal Code Section 11414(a) to read:

“Any person who intentionally harasses the child or ward of any other person because of that person’s employment shall be punished by imprisonment in a county jail not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both that fine and imprisonment.” 4

The basic idea is that if a person photographs a child because of the type of work that the child’s parent does (for example, an actor or singer), and in so doing the person “seriously alarms, annoys, torments, or terrorizes” the child, that person has committed a crime that could cost them $10,000 and a year in county jail. 5

Though the word “celebrity” is found nowhere in the text of the law, it is clear that by making the crime depend upon the occupation of the child’s parents, the law targets photography of the children of people whose careers put them into the public eye.

Clashing with the First Amendment

The First Amendment guarantees that the government cannot interfere with our right to a free press. 6 However, this does not mean that this freedom is unlimited because the court has determined that under certain conditions, the right of the press can be limited. 7

The potential problem with California’s law is that it may be too vague to be enforceable. How can a person tell whether taking a photo of a child will “seriously alarm” the child before they take the photo? The Supreme Court has frowned on laws that restrict the kinds of stories the press can cover, 8 and on laws designed to “chill” the freedom of the press by causing a fear of legal trouble as a result of covering a story. 9
Under California’s law, the crime for which a paparazzo could be charged would be based on the unpredictable reaction of the child, which would certainly cause the paparazzo to have to think twice about snapping the picture. Because there is no way to tell what the reaction will be, and because what constitutes alarming a child is a vague standard, this could be viewed as either a prior restraint or a law that “chills” free speech.

California’s anti-paparazzi law also suffers from another problem. It states that the act that offends the child must be one that “serves no legitimate purpose.” 10 There is an argument to be made that these kinds of photos serve a legitimate purpose because millions of people consider the photos to be newsworthy (in other words, a matter of legitimate public concern). Under California law, the prosecutor has to prove that the facts published were not a matter of legitimate public concern. The courts consider three factors when deciding whether facts are of legitimate public concern:

  • The social value of the facts published;
  • The depth of the intrusion into ostensibly private affairs; and
  • The extent to which the plaintiff voluntarily assumed a position of public notoriety. 11

Under this standard, most facts about celebrities and public officials are considered matters of legitimate public concern.

Though many people may find the paparazzi to be distasteful and not part of the “legitimate” media, those people do not get to decide that the paparazzi should receive any less constitutional protection than the rest of us. After all, this law could apply to any of us. Most of us are just a click of the camera button on our smartphone away from being photographers ourselves.

Share Your Feedback with Us

We at Wallin & Klarich would like to hear from you about this topic. Should California’s government enact a law making the photographing and selling of children of celebrities a crime? What are some of the reasons you see that would make this either a good or bad idea? Please feel free to leave your comments below.

1. [Keith D. Willis, Paparazzi, Tabloids, and the New Hollywood Press: Can Celebrities Claim A Defensible Publicity Right in Order to Prevent the Media from Following Their Every Move?, 9 Tex. Rev. Ent. & Sports L. 175 (2007), quoting Stephanie Dubois, “Stars' Run-Ins with Paparazzi Show Lessons Unlearned,” bsf 151 (last visited Mar. 7, 2007). ]
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5. [Id.]
6. [Though the First Amendment applies to the federal government, it has been applied to the state governments through the Fourteenth Amendment.]
7. [For example, the Court ruled in Branzburg v. Hayes that a reporter could be ordered to reveal the identity of a person who violated federal law to obtain the information that the person gave to the reporter. Branzburg v. Hayes, 408 U.S. 665 (1972).]
8. [New York Times Co. v. United States, 403 U.S. 713, 91 S. Ct. 2140, 29 L. Ed. 2d 822 (1971)]
9. [Branzburg v. Hayes, 408 U.S. 665 (1972).]
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11. [Capra v. Thoroughbred Racing Association, 787 F.2d 463, 12 Media L. Rep. 2006 (9th Cir.), cert denied, 479 U.S. 1019 (1986).]

Will Reducing Penalties for Non-violent Crimes Help California?

September 22, 2014,

With the November election approaching, prosecutors and defense attorneys are turning their attention to a ballot measure that will reduce penalties for some non-violent, non-serious offenses. Although it is gaining traction with the public, prosecutors are split over Proposition 47.

According to an August field poll, the proposition has 57% support, which means it could be voted into law barring significant changes before November. However, that is not expected to change as opposition has failed to raise funds and has remained quiet.1 Here is what you need to know about Prop 47.

What Will Prop 47 Do?

Proposition 47 is appropriately being called the “Reduced Penalties for Some Crimes Initiative.” If passed, the proposition would reduce six non-serious, non-violent crimes from felonies and wobblers—which could be prosecuted as felonies or misdemeanors depending on the circumstances of each case—to misdemeanors.
The crimes being reclassified include drug and theft offenses. Most notably, crimes involving the possession of illegal drugs for personal use would always be charged as misdemeanors, regardless of what type of drug it is and how much of the drug the defendant possessed. Additionally, writing bad checks, shoplifting, receiving stolen property and theft of property worth $950 or less would be reduced to misdemeanors.

If Prop 47 passes, persons who commit these crimes would face a maximum of one year in county jail rather than three years in jail and a felony on their criminal record. It would also apply to convicted offenders already serving time for these offenses, allowing these individuals to petition for resentencing. Offenders who have completed their sentences would be eligible to apply to have their convictions reduced to misdemeanors on their criminal record. Anyone who has a prior conviction for certain violent or registerable sex crimes would not be eligible to have their sentences reduced under the proposed law.

What Effect Would Prop 47 Have?

Proposition 47 would have a profound impact on California and the treatment of individuals convicted of certain crimes. The state would save hundreds of millions of dollars each year. Sentencing fewer convicted people to shorter sentences could reduce overcrowded jail populations by thousands, according to the California Budget Project. 2

The goal of the measure is to stop spending so much of the state’s money on sending inmates to jail and redirect the funds towards the treatment of low-level offenders. The money saved by the state would be used for substance abuse treatment and support for mentally ill offenders. In the long run, treating these individuals rather than sending them to jail or prison will help reduce the chances that they will re-offend once released from custody.

Why You Should Vote Yes on Prop 47

California punishes persons convicted of non-serious offenses too harshly and does not prepare them to be released from custody, which could lead them to re-offend and wind up back behind bars. It is time for the state to stop focusing on punishing these individuals and offer mental health and substance abuse treatment instead.

If the measure is passed in November, the state will save hundreds of millions of dollars and convicted individuals will finally get the treatment they need. That is all the reason necessary to vote yes on Prop 47.

What do you think about Prop 47? Will you be voting yes on the measure in November? Wallin & Klarich welcomes your opinion. Please leave your thoughts in the comments below.

1. ["Prosecutors split on soft-on-crime measure” Daily Journal. Sept. 18, 2014.]

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You Must Be Mentally Competent to Be Sent to Jail in California (California Penal Code Section 1368)

September 19, 2014,

In order to be sent to jail or prison in California, you must be deemed mentally competent, the California Court of Appeals ruled recently. If you are mentally incompetent and cannot understand the charges being filed against you, you must first receive treatment to attempt to be deemed competent.

Recently, a defendant on trial for numerous sex crimes was determined to be mentally incompetent, and therefore unable to stand trial. Pursuant to California Penal Code Section 1370.1(b), if a person has been deemed mentally incompetent to stand trial, the trial must be suspended until the individual has attained mental competency. 1

The reason for this is because it violates a person’s constitutional rights to a fair trial if individuals cannot comprehend the charges being filed against them. The criminal case cannot continue until the defendant is deemed mentally competent.

Mentally Incompetent Defendant Spends Years in Jail

The California Court of Appeals recently decided a case involving a man who spent two years in county jail without receiving treatment for his mental incompetency.

Pursuant to the law, the defendant was recommended to the Porterville Developmental Center in the city of Porterville. It was determined that the Developmental Center was properly equipped for the individual’s mental needs, but he was rejected based on safety concerns. 3%20strikes.jpg

The individual was then referred by the Department of Developmental Services to use an outside vendor who would provide him with mental help while he remained in county jail. However, this was not allowed under PC 1370.1, which states that an individual is required to be placed in a treatment center, not a county jail.

With no suitable place for the defendant to go and not other options, he remained in county jail.
The defendant spent two years in a county jail facility and did not receive the proper treatment throughout his incarceration. The treatment that he was not provided would have helped him attain competency and ultimately allowed him to resume his criminal trial.

How Did the Court of Appeal Rule?

The Court of Appeal held that the defendant’s rights to due process had been violated and granted his request for habeas corpus relief.

They explained that the defendant was kept in custody for two years without any treatment, which was unreasonable. Moreover, failing to comply with the statute, which required the defendant to be provided with treatment that would help his mental capacity and allow his criminal case to continue, was in violation of the law.

Call the Criminal Defense Attorneys at Wallin & Klarich Today

If you or a loved one has been unconstitutionally incarcerated without due process, you need to speak with an experienced attorney right away. At Wallin & Klarich, our skilled attorneys have been protecting the rights of defendants for over 30 years. We have experience dealing with a wide range of serious cases and we can help you obtain the best possible result in your case.

We have offices in Orange County, San Bernardino, Los Angeles, Torrance, Riverside, West Covina, Victorville, Ventura, San Diego and Sherman Oaks. There is an experienced Wallin & Klarich attorney near you no matter where you work or live.

Call us at (888) 280-6839 for a free phone consultation. We will be there when you call.

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Domestic Violence Conviction Will Now Result in Lifetime Firearms Ban

September 17, 2014,

According to a recent California Court of Appeals ruling, anyone who is convicted of domestic violence in California will receive a permanent federal lifetime ban on possessing a gun. Under the ruling, you could be barred from possessing a gun for any offensive touching during a domestic violence incident, even if it did not cause physical injury. 1

The decision surrounds the case of a man who was convicted of misdemeanor battery against his wife. Years later, the man attempted to buy a gun but was turned down due to his domestic violence conviction.

Firearms Ban Applies to Non-Violent Attacks

In 1996, Scott James, of Tulare County, plead no contest to misdemeanor battery under California Penal Code Section 242. He was placed on probation for two years.

James applied to be a reserve deputy sheriff in 2008 but was denied after a background check was performed and James learned the State of California considered his 1996 conviction to be a domestic violence conviction. In 2011, he attempted to purchase a firearm, but his application was denied on the same ground:  he had previously been convicted of a domestic violence offense.canstockphoto5364621.jpg

Claiming that the crime he admitted to did not involve violence and did not cause physical injury on the victim, James sued.

Citing a U.S. Supreme Court case from May of this year that clarified a 1996 law extending the federal firearms ban to those convicted of misdemeanor domestic violence, the Court of Appeals ruled that the ban on firearms possession applies to all spousal battery cases.

Before 1996, federal law only applied the ban to felonies, but spousal battery cases are often prosecuted as misdemeanors. The recent Supreme Court ruling said that the ban should not only apply to anyone who injures their spouse, but could also apply to anyone convicted of a misdemeanor depending on each state’s definition of the crime.

Protect Your Second Amendment Rights

The court’s unnecessarily harsh ruling steps on the constitutional rights of citizens and defines domestic violence too broadly. Crimes that do not actually involve violence should not be classified in the same way as crimes that involve physical injury.

While this case will undoubtedly make its way to higher courts, including potentially the U.S. Supreme Court, you now risk losing your Second Amendment rights if you commit a non-violent offense. The ruling means that you will need to fight domestic violence charges against you vigorously if you want to protect your Second Amendment right to own a firearm.

Call the Domestic Violence Attorneys at Wallin & Klarich Today

If you are accused of a domestic violence crime, it will have a lasting impact on your life and you could lose many of your legal rights. That is why it is crucial that you contact an experienced domestic violence attorney immediately. At Wallin & Klarich, our skilled attorneys have over 30 years of experience successfully defending our clients facing domestic violence charges. We can help you achieve the best possible outcome in your case.

With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, there is an experienced Wallin & Klarich attorney available to help you no matter where you work or live.

Call us today at (888) 280-6839 for a free telephone consultation. We will get through this together.

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