Kendall Simsarian Criminal Law Attorney

09/08/2021

Husband and wife have small child and are co-registered owners of a Nissan Altima. Husband and wife divorce. Husband, wife, and child take a family trip to Mexico several months later. Husband buys tracking device for car and installs it in case it's stolen. One month after their trip, wife, who has sole use of the Altima, goes on a short trip with the small child and a friend. She doesn't tell anyone where she's going, but husband tracks wife's whereabouts through the previously-installed tracking device and appears at the destination, causing wife to be "freaked out."

Husband charged with a violation of Penal Code § 637.7, subdivision (a) - Use of Electronic Tracking Device to Determine Another Person’s Location or Movement.

Here's the relevant portion of PC 637.7:
(a) No person or entity in this state shall use an electronic tracking device to determine the location or
movement of a person.
(b) This section shall not apply when the registered owner, lessor, or lessee of a vehicle has consented to the use of the electronic tracking device with respect to that vehicle.

What do you think? Is husband guilty of a violation of PC 637.7?

The appellate court’s answer is surprisingly simple and deals only with the two being "co-registered owners."

Defendant was found guilty by a jury. On appeal to the Superior Court Appellate Division, the court reversed the conviction, finding that Penal Code "section 637.7, subdivision (a) is unconstitutionally vague because it does not address the situation where the defendant and the victim are co-registered owners of the vehicle."

Since the law is vague, the conviction is reversed. No chance for retrial. Defendant is not guilty.

The case came out this past Friday. Although there was no guidance or recommendation provided by the court as sometimes occurs, this is a clear signal to the Cal. Legislature that they ought to clarify this statute to address whether they intend for the law to apply to this situation.

People v. Agnelli, Cal.Sup.Ct.App.Div. JAD21-05, pub. 9/3/2021

06/10/2021

Robbery is taking personal property from a person against his will, accomplished by means of force or sufficient fear to cause the victim to comply with the demand.

Is it enough that the robber employs a means of fear that would cause a reasonable person to comply, or does the victim have to be in actual fear?

05/24/2021

A police officer saw a man leaning into the open front passenger door of a vehicle. The vehicle was in a high-crime neighborhood. When the officer parked behind the vehicle, the man walked away. The officer went up to the driver’s side and spoke with the driver. The officer noticed a strong smell of fresh ma*****na from the vehicle. The officer asked about the smell and the driver said there had been ma*****na in a jar in the car but had recently smoked it. The driver showed the officer the jar. When asked whether there was anything illegal in the vehicle, the driver said “not that I know of.” The officer asked the driver about a backpack on the front passenger floorboard. Driver said his friend had left it there.

Based on his observations, both sight and smell, the officer decided to search the vehicle to determine if it contained an unlawful amount of ma*****na. When the officer picked up the backpack, defendant returned to tell him it belonged to him. The officer told defendant he had probable cause to search and was going to search the backpack. Defendant said that the search didn’t have anything to do with him and he did not want the backpack searched. The officer asked defendant his name, defendant responded, “are you serious?” and walked away, entering into the passenger seat of a parked Mercedes, which then drove away.

Officer searched the backpack and found 1/4 pound ma*****na, a .40-caliber handgun, scales, and packaging materials, as well as a cell phone and a wired charger for an ankle monitor. Police caught up with the defendant soon thereafter. Charged with possession for sales of ma*****na and felon in possession of a firearm, plus priors, defendant pleaded to 5 years prison for the gun and priors, and the possession for sales charge was dismissed,

The question is: Did the officer have probable cause to search?

Stay tuned for the answer. Or get it now at ksimsarian.com/educatecriminal

This section is designed to help you understand Criminal Law from a criminal defense advocates position. If you have any suggested topics in criminal law, criminal defense, or DUI law, please let me know.

02/27/2021

Brand new website

Downtown Fresno DUI and Criminal Defense“FRESNO’S LEADING CRIMINAL DEFENSE ATTORNEY” KENDALL SIMSARIAN ATTORNEY is an experienced, knowledgeable criminal defense attorney who has been fighting for the rights of accused individuals for the past 30 years.EVERYONE IS ENTITLED TO BE TREATED AS A I...

01/14/2021

EMPLOYEE vs. INDEPENDENT CONTRACTOR

Ever wonder about the difference between an employee and an independent contractor?

First, under California law, any worker who performs work for a business is presumed to be an employee.
Next, such a worker is an independent contractor only if:
(A) the worker is free from the control and direction of the
hirer in connection with the performance of the work, both
under the contract for the performance of such work and in fact;
(B) the worker performs work that is outside the usual
course of the hiring entity’s business; and
(C) the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.” (Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903, 916–917.)

01/12/2021

Case decided today January 11, 2021

Defendant convicted of felony attempted interstate transportation of ma*****na. San Francisco International Airport security-screening officers found over 13 pounds of ma*****na in luggage belonging to defendant and her mother. Defendant admitted she was paid to transport the bag containing ma*****na from San Francisco to New York and done it at least twice before.

She was placed on supervised probation for a period of three years. One condition of probation was that she abstain from the use and possession of controlled substances, including ma*****na.

The questions presented to the court were:
Is the condition that she abstain from use of ma*****na reasonable?
Is the condition that she not possess or use controlled substances of any kind overbroad?

The court found that the condition that she abstain from using ma*****na was well founded within its broad discretion to fashion appropriate conditions of probation that facilitate rehabilitation and foster public safety.

The court found that the condition that she not possess any kind of controlled substances was overbroad, and they modified it to allow her to use and possess only those controlled substances for which she has a prescription (including ma*****na).

People v. Quinn, Cal.Ct.App. A156932, filed 1/11/21

11/24/2020

Before beginning interrogation, a police officer tells you that you have the right to an attorney. You respond with one of the following:
a) Maybe I should talk to a lawyer.
b) If you can bring me a lawyer.
c) I think it’d probably be a good idea for me to get an attorney.
d) I want to speak to an attorney first, because I take responsibility for me, but there’s other people that I need to find out.
e) I think it’s about time for me to stop talking.
Which of these choices, if any, require officers to cease continued questioning?

According to the California Supreme Court, the correct answer is d)

The stop questioning answer based on:
d) - People v. Henderson (2020) 9 Cal.5th 1013, 1029
The continue questioning answers based on
a) - Davis v. United States (1994) 512 U.S. 452, 462
b) - People v. Sauceda-Contreras (2012) 55 Cal.4th 203, 219
c) - People v. Bacon (2010) 50 Cal.4th 1082, 1105
e) - People v. Stitely (2005) 35 Cal.4th 514, 535

11/21/2020

San Diego police were parked when a driver stopped her car in the middle of the street and stepped out. She said she lived nearby, provided her address, and reported there were Black males in a parked black Mercedes on her street who were “acting shady.” The officers went to the location and found a legally parked black Mercedes with three young Black males inside. Officers claimed the driver was already known as an on probation gang member in a rival neighborhood. Four officers parked directly behind the Mercedes, activating their vehicle’s emergency lights. The officers stepped out, walked over to the Mercedes, and positioned themselves at each door to prevent its three occupants from leaving. When the officers asked the vehicle occupants for their names and information, one initially gave a false name. Upon learning his true identity and confirming that he was on probation subject to a condition waiving his Fourth Amendment rights, officers searched the Mercedes and recovered a loaded firearm underneath the driver’s seat, a pair of sneakers connected to a robbery, and a clear white canister containing ma*****na. The minors were arrested.

The lower court found that no detention had occurred, that the officers had a right to be at that location and check on the vehicle after receiving the citizen tip, and once they confirmed driver was subject to a Fourth Amendment waiver, they could legally search the vehicle.

The appellate court reversed the order denying the motion to suppress. They said that there was a detention and that the tip on its own did not justify the detention, and the trial court is to conduct a renewed suppression hearing to resolve credibility conflicts as to what the officers knew at the time they detained defendants.

In re Edgerrin J., Cal.Ct.App. D076461, filed 11/20/2020

04/08/2020

This is a United States Supreme Court case, and is therefore now the Law of the Land.

An officer ran a license plate check on a pickup truck, discovering that the truck belonged to defendant and that defendants’s driver’s license had been revoked. The officer pulled the truck over because he assumed that defendant was driving. Defendant was in fact driving and was charged with driving on a suspended license. He moved to suppress all evidence from the stop, claiming that the officer lacked reasonable suspicion.

Q: Does an officer violate the Fourth Amendment by initiating an investigative traffic stop after running a vehicle’s license plate and learning that the registered owner has a revoked driver’s license.

A; No. Under these circumstances, "when the officer lacks information negating an inference that the owner is the driver of the vehicle, the stop is reasonable."

The Court said that since the officer "knew that the license plate was linked to a truck matching the observed vehicle and that the registered owner of the vehicle had a revoked license. Based on these minimal facts, he used common sense to form a reasonable suspicion that a specific individual was potentially engaged in specific criminal activity—driving with a revoked license. Traffic stops of this nature do not delegate to officers broad and unlimited discretion to stop drivers at random."

The Court said the scope of the ruling was narrow, giving the example that "if an officer knows that the registered owner of the vehicle is in his mid-sixties but observes that the driver is in her mid-twenties, then the totality of the circumstances would not raise a suspicion that the particular individual being stopped is engaged in wrongdoing.”

The stop is justified based really on reasonable inferences rather than reasonable suspicion. Sotomayor in her dissent pointed out that "a stop must be individualized—that is, based on a suspicion that the particular subject being stopped is engaged in wrongdoing. This does not mean that the officer must know the driver’s identity. But a seizure must rest on more than the likelihood that a given person or particular vehicle is engaged in wrongdoing."

Kansas v. Glover, USSC, filed 4/6/20

03/27/2020

Defendant drove past a school bus while it was stopped and displaying a flashing red light signal and stop signal arm in violation of VC § 22454(a). Rather than cite her for this offense, the officer elected to cite her for failing to stop while approaching a stop sign in violation of VC § 22450(a) because the fine would be lower. She fought the case, saying she was not guilty of either offense.

Facts- A school bus was stopped in front of an apartment building. The red lights on the bus were flashing and its signal arm with the word “stop” written on it was extended. Defendant made a left turn onto that street and drove past the school bus without stopping.

Law- VC § 22450(a): The driver of any vehicle approaching a stop sign at the entrance to, or within, an intersection shall stop at a limit line, if marked, otherwise before entering the crosswalk on the near side of the intersection. If there is no limit line or crosswalk, the driver shall stop at the entrance to the intersecting roadway.

The court found her guilty of VC § 22450(a) and fined her $695. She appealed.

The appellate court answered the following question:
Does a stop signal arm affixed to a school bus fall within the parameters of section 22450(a)?

Answer: No. Not Guilty. The strict construction of the statute required a finding that defendant’s failure to stop occurred while facing a crosswalk or entering an intersection. Since this was not the case, defendant's conviction is reversed.

03/07/2020

This might be a good time to educate people on the lawful/unlawful possession of ma*****na in a vehicle.

1. A person cannot lawfully drive under the influence of ma*****na.
2. Neither the driver nor a passenger can smoke ma*****na while riding in a car.
3. It is illegal to possess an open container of cannabis while driving.
4. A person over 21 years old can possess and transport cannabis in an amount of not more than 28.5 grams.
5. It is illegal to possess, while driving a car, cannabis in a receptacle which has been opened or has a seal broken.
6. It is illegal to possess, while driving a car, loose cannabis flower not in a container.

Don't smoke ma*****na in your car or be high while driving.
Don't have ma*****na in the car at all unless it is 28.5 grams or less.
The ma*****na must be in a sealed container, unless it is loose cannabis flower, and then it may be possessed in a closed container.

Notes:
The courts consider ma*****na and cannabis to be the same thing.
Cannabis and loose cannabis flower are treated differently.
There is an exception to the sealed container requirement for a qualified patient or person with an identification card, if carrying a current identification card or a physician’s recommendation, and the cannabis or cannabis product is contained in a container or receptacle that is resealed or closed.

02/22/2020

It is illegal to possess a concealed dirk or dagger. A dirk or dagger is defined as a knife or other instrument that is capable of ready use as a stabbing weapon that may inflict great bodily injury.

1. Is this definition of a dirk or dagger too vague to give notice of what is prohibited?
2. Does the definition grant police and prosecutors unfettered discretion over who to pursue?

Answers as determined by the California Appellate Court in a published decision - People v. Bermudez, Cal.App.Ct C079168A, filed 2/18/2020:

1. Since to be guilty of carrying a concealed dirk, a defendant must know the concealed instrument could be readily used as a stabbing weapon, and when a defendant is charged with
an offense that penalizes possession of an instrument that is ordinarily usable for peaceful purposes, the defendant may justify the possession by showing the possession was in
accordance with the instrument’s ordinary legitimate design.

This of course puts the burden of proof on defendant to show that there was an ordinary legitimate use, and that they were unaware that it "could" be used as a stabbing weapon.

2. Defendant argued the definition “grants the police and prosecutors unfettered discretion” over who to charge with carrying a concealed dirk. He reasons the statute “punishes activity that ordinary people engage in without thinking about it.” He postulates that a car key could be a dirk, ergo everyone in a parking lot could be arrested for carrying a concealed dirk.

The court disregards this argument, saying that to be
subject to arrest, a person’s conduct must give rise to probable cause that he knew the concealed instrument may be used as a stabbing weapon, and that such knowledge can be determined through the surrounding circumstances,
including the time and place of possession, the defendant’s destination, the object’s alteration, and any other facts.

To sum up - on both questions, Eric Schweitzer is right and the court is wrong.