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The Sixth Amendment to the United States Constitution guarantees all defendants facing criminal prosecution the right to confront their accusers. Confrontation affords a defendant the opportunity to cross-examine the witness and potentially reveal any bias or other weakness in the witness’ testimony. Typically, courts require that this confrontation be face-to-face, meaning that the witness must testify at the defendant’s trial. Through live testimony, a jury is best able to assess a witness’ demeanor and credibility, assisting the jury in determining whether the witness’ testimony is credible.

Face-to-face confrontation requires a witness to face the subject of their allegations. Naturally, this will make some witnesses nervous. Indeed, a witness’ nervousness is a key factor in assessing their credibility. However, California lawmakers have developed several exceptions to the general rule requiring face-to-face confrontation when the allegations involve specific California crimes allegedly committed against children.

Under California Penal Code section 1347, a court can permit the minor to testify via two-way closed-circuit television in certain limited situations when the defendant is charged with a “violent felony offense.” The statute provides some examples of what constitutes a violent felony offense, including:

  • rape,
  • sodomy,
  • oral copulation,
  • lewd or lascivious acts,
  • certain child abuse offenses,
  • robbery,
  • carjacking,
  • kidnapping, and
  • arson.

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Under California criminal law, a battery is defined as “any willful and unlawful use of force or violence upon the person of another.” Battery is often conflated with the more serious charge of assault, which is defined as an “unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” When a battery is committed against a person who is not considered part of a protected class, the crime is usually considered a simple battery.

To prove a charge of simple battery, the prosecution must establish that 1.) the defendant willfully and unlawfully touched a person and 2.) the touching was done in a harmful or offensive manner. If a defendant is convicted of a simple battery charge, they can be sentenced to a term of imprisonment of up to six months in length, and be fined up to $2,000.

In reality, simple battery is rather uncommon because California lawmakers have enacted a series of statutes naming many protected classes of individuals. For example, police officers, lifeguards, firefighters, children, dependent adults, bus drivers, and school employees are all considered protected classes. If a battery is committed against a member of a protected class, the potential punishment escalates. This is also the case for California domestic battery.

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When someone is arrested for a California DUI offense, the arresting officer will likely ask them if they will consent to a chemical test of the driver’s blood, breath, or urine. Under California law, when a motorist is arrested for suspicion of driving under the influence of drugs or alcohol “is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood.” There is a similar provision for the suspicion of driving under the influence of drugs. Collectively, these are referred to as California’s implied-consent statute.

At its most basic, an implied-consent statute gives law enforcement the ability to test a person’s blood or breath after they have been arrested for suspicion of impaired driving. Of course, police officers are not entitled to physically force a motorist to provide a sample, so the importance of the implied-consent statute is that motorists who refuse testing can be subject to administrative and, in some cases, additional criminal penalties.

Before police are able to rely on the implied-consent statute, it must be established that the motorist was “lawfully arrested” for suspicion of impaired driving. Additionally, the motorist must be provided with certain warnings. If a motorist’s arrest is not lawful, or the police officers involved in the case fail to follow the proper protocol, any evidence or test results obtained may be suppressible.

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Witness credibility is essential in any California criminal case. If a witness is found not to be credible, their testimony comes into question, which can create doubt in the minds of the jurors. Thus, in cases involving the testimony of a police officer, defendants can attack an officer’s credibility just like any other witness.

One way a defendant can attack the credibility of a police officer is by showing the jury that the officer has been engaged in past misconduct. Under California case law, when a defendant can show good cause, he “is entitled to discovery of relevant documents or information contained within the confidential personnel records of peace officers accused of misconduct against the defendant.” Before ordering that any evidence of misconduct be provided to the defense, the trial must review the material at issue to determine its potential relevance. This is called a Pitchess motion hearing, named after the case that first announced the rule. A recent case illustrates how a Pitchess motion should be conducted, and the consequences if the proper procedures are not followed.

The Facts of the Case

According to the court’s opinion, the defendant dropped a can of spray paint as police officers approached him. Evidently, when police asked, the defendant admitted to having recently tagged something. The officers located fresh graffiti nearby and arrested the defendant.

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Police, lawmakers, and judges take California DUIs very seriously. To discourage people from engaging in drunk driving, California lawmakers have enacted a strict set of penalties that escalates with each prior conviction for DUI. However, even first-time California DUI offenders can face significant penalties.

There are two categories of penalties that can be imposed on those who have been charged with a California DUI offense: administrative and criminal penalties. Administrative penalties most notably involve the suspension of a defendant’s driving privileges. Typically, when a driver is arrested for a California DUI, their license will be revoked, and they will be issued a temporary restricted license. This license will naturally expire at the end of 30 days, unless the driver requests a hearing. This may result in the driver’ privileges being reinstated for limited purposes only, pending final resolution of the case.

Importantly, the administrative consequences of a DUI arrest occur regardless of whether the driver is actually convicted of the offense. Separate from the administrative consequences of a DUI arrest are the criminal penalties that will be imposed by the court. Some penalties will only be assessed if a driver is found guilty of a California DUI offense.

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One of the most misunderstood rules in California criminal law is the law preventing hearsay testimony. Under California statutory law, hearsay is defined as “a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” Most often, hearsay testimony arises in the context of a witness testifying to what someone else said.

There are several concerns about hearsay evidence. Generally, hearsay evidence is less reliable because, by its nature, it is coming from a party other than the one who made the statement. Thus, a statement could easily have been misunderstood or misinterpreted by the witness. Perhaps more importantly, allowing a non-present party to present evidence against a criminal defendant deprives the defendant of their right to confront their witnesses which is guaranteed under the United States Constitution.

What Makes Hearsay So Confusing for Many People?

Perhaps the most complicated aspect of the hearsay concept is not the definition of what constitutes hearsay, but the numerous exceptions that allow evidence which would seemingly be precluded under the rule. For example, certain statements against one’s interest are not inadmissible under the hearsay rule. Specifically, a defendant’s statements are never considered hearsay and statements made by a co-conspirator are not inadmissible if they are made before or during the conspiracy.

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The Constitution’s Second Amendment stresses “the right of the people to keep and bear Arms.”

That language is frequently quoted in discussions centered on that cornerstone American protection. And while it is spotlighted, it isn’t routinely tempered by advocates’ acknowledgment of tandem restrictions that state governments and federal authorities liberally impose on the right.

Indeed, regulatory controls over guns are both multi-layered and expansive. We note on our criminal defense website at the Bay Area Law Office of John W. Noonan that they start with government bodies powerfully commanding “the right to regulate who can own a gun.” In California, a threshold prerequisite to gun ownership is licensing, which comes with controls that are comparatively tighter than those imposed in many other states.

At the beginning of the year, a new law went into effect that will result in some first-time California DUI offenders being required to install an ignition interlock device on their vehicle. The concept for the bill originated as a pilot program in Alameda, Los Angeles, Sacramento and Tulare counties. However, after the program’s perceived success in those counties, the ignition interlock program was rolled out statewide with the passage of Senate Bill 1046. The law went into effect January 1, 2019, and will remain in effect until at least January 1, 2026.

What Is an Ignition Interlock Device?

An ignition interlock device is a small breath testing device that is installed inside a motorist’s vehicle. The device requires a motorist to blow into it before trying to start the car. If the driver’s breath has any alcohol in it, the car will not start. Ignition interlock devices require both an installation fee as well as a monthly maintenance fee. According to one local news source, the installation fee will be between $70 and $150, and the monthly maintenance fees will be between $60 and $80 a month. Both of these fees will be paid by the defendant, although there may be subsidies for some low-income defendants.

Who Will Need to Install an Ignition Interlock Device?

Under SB 1046, many people who are convicted of a California DUI offense will be required to install an ignition interlock device. The law provides that repeat offenders must install an interlock device on their vehicle for either one, two, or three years, depending on the number of previous convictions. In addition, if a first-time offender is found guilty of a DUI that resulted in injury, the motorist will be required to install an interlock device.

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Kids are not adults. End of story.

That is a bottom-line observation from our immediately preceding blog post at the established Bay Area criminal defense Law Office of John W. Noonan. And it is coupled with our view — adamantly supported by researchers, psychologists and thoughtful law enforcers spanning the country — that “young people who are not yet adults shouldn’t typically be treated as if they are.”

Indeed, we stress in our January 2 post entry that juveniles often display “predictable lapses in judgment and failed appreciation for downside consequences.”

The issue of consent arises very frequently in California sexual assault cases. However, under the California Rape Shield Law, a defendant who is charged with sexual assault may have a difficult time establishing that his encounter with the complaining witness was consensual.

What Is a Rape Shield Law?

Rape shield laws refer to a series of rules of evidence that prevent defendants charged with certain crimes from bringing up evidence of the alleged victim’s sexual past. In California, the rape shield law is contained in California Evidence Code 1103, and applies to the following cases:

  • Penal Code 261: Rape
  • Penal Code 262: Spousal/marital rape
  • Penal Code 264.1: Rape in concert
  • Penal Code 286: Sodomy
  • Penal Code 288(a): Oral copulation by force; and
  • Penal Code 289: Forcible penetration by a foreign object.

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