Miranda Rights Part 1

Case Name: People v. Thomas , CalSup , Case #: S067519

Opinion Date: 7/23/2012 , DAR #: 10085

Case Holding:

The rule of Edwards v. Arizona (1981) 451 U.S. 477 does not preclude questioning about a different criminal investigation after the suspect reinitiates contact with police. In this death penalty case, appellant moved to exclude statements as violative of Edwards; the motion was denied and the statements introduced at trial. Affirmed. Thomas turned himself in to Oakland police about a murder at a BART station. He was already a suspect in an attempted robbery being investigated by Hayward police. During questioning about the attempted robbery, appellant invoked the right to counsel and the police terminated the interview. He later reinitiated contact with a detective. Appellant indicated that he had invoked his right to counsel, he had spoken to an attorney, and he now wanted to talk and set things right. He was advised of his Miranda rights again and he confirmed several times that he now wanted to talk without counsel present. He then discussed the attempted robbery. Two days later, sergeants investigating the BART murder met with appellant. They advised him of his Miranda rights without mentioning what specific case they were investigating. Appellant waived his rights and ultimately made incriminating statements about the BART murder. The Edwards rule did not preclude introduction of the statements. There was no indication of police badgering; there was no reason to doubt that Thomas could have invoked his right to counsel since he had previously stopped the interrogation by that means; and, there was no affirmative limit to questioning as Thomas had reinitiated it. The purpose of the Edwards rule would not be served by excluding appellant's confession. His failure to mention other crimes could not be understood as an assertion that questioning about other crimes would be off limits.

If you are arrested, invoke your Miranda rights as soon as humanly possible. Under Miranda, if you are detained, the police agency must read you your Miranda rights before speaking to you. These rights are; the right to remain silent, anything you say can be used against you, you have the right to an attorney, if you cannot afford an attorney one will be appointed to you. Then the police will ask you if you understand and give up these rights.

If you invoke your Miranda rights, the police cannot talk to you until a lawyer is present, and in all actuality, they will just stop talking to you. It's rare that I'm called to a police station, or jail to resume questioning when a client invokes Miranda. But in the event that you do invoke Miranda NEVER EVER GIVE UP YOUR MIRANDA RIGHTS AFTER YOU INVOKE. In the case above, the defendant properly invoked his Miranda rights and then gave them up and gave incriminating statements about a murder case he was a suspect in. He might very well be not serving a life sentence at this time had he merely invoked his rights to remain silent and just kept his mouth shut.

To get a family member to keep his mouth shut in the case he is arrested contact me right now. I will answer the phone.

George Derieg attorney at law
www.eastbayattorney.com

510-355-2747

Jail Phone Calls

Case Name: U.S. v. Valdes-Vega , 9 Cir , Case #: 10-50249

Opinion Date: 7/25/2012 , DAR #: 10223

Case Name: People v. Jones , District: 2 DCA , Division: 5 , Case #: B233204

Opinion Date: 7/23/2012 , DAR #: 10217

Case Holding:

The forfeiture by wrongdoing doctrine is not limited to statements by victim witnesses who were murdered to prevent their testimony. Appellant was charged with assault, grand theft, and criminal threats against his former girlfriend's friend. The former girlfriend was subpoenaed to testify at a hearing on the admissibility of evidence that appellant choked her in 2009. She had previously told a detective that she ended her relationship with appellant because of physical violence between them, that she was afraid of him, and that he made incriminating statements to her on the date of the charged crimes. After she failed to appear, a body attachment was ordered but the prosecution was unable to locate her. Inmate phone records showed that appellant had called her a dozen times, they spoke for over 10 hours, and portions of the recorded calls demonstrated his intentional efforts to dissuade her from testifying. The trial court admitted her statements based on the forfeiture by wrongdoing doctrine. (Evid. Code, § 1390; Giles v. California (2008) 554 U.S. 353.) Affirmed. While the former girlfriend’s statements to the detective were testimonial, the Sixth Amendment right to confrontation did not bar admission of the statements in this case. One who obtains the absence of a witness by intentional wrongdoing forfeits the constitutional right to confrontation of the witness. The "wrongdoing" is not limited to killing victim witnesses, as appellant argued. The doctrine applies to statements by corroborating witnesses whose testimony was prevented by means other than murder. The trial court did not err in admitting the statements.

 

It is so very important to hire an attorney if your loved one is in jail. The first thing I tell a prospective client or prospective client's family member is to not discuss the case either while visiting the inmate, or over the phone. Even when I contact a client in jail, I always first say into the phone that I am an attorney and any recording of this confidential attorney client conversation is prohibited by state and federal law. Every phone call that comes out of the jail is recorded, the case above could have come out differently if the inmate had not used the telephone to convince his former girlfriend from testifying.

If your loved one is in jail, contact attorney George Derieg immediately for aggressive knowledgeable representation.

 

George Derieg, Attorney at Law

Affordable, Aggressive Representation

www.eastbayattorney.com

510-355-2747

California Penal Code section 4530, Escape

Case   Name: People v. Bailey , CalSup , Case #: S187020

Opinion Date: 7/12/2012  , DAR   #: 9562

Case Holding:

Under the particulars of this   case, because attempted escape is not a lesser included offense of escape, the   appellate court, after finding insufficient evidence to support the escape   conviction, cannot modify the conviction to attempted escape. Appellant   was charged with a violation of Penal Code section 4530, subdivision (b) (escape   from custody), with the information alleging appellant "did willfully and   unlawfully escape and attempt to escape." The evidence revealed that appellant   made it past several interior prison barricades but ultimately did not make it   past a final barricade. The prosecutor informed the court that she was trying   the case as an escape, although there was sufficient evidence to support an   attempted escape. The parties agreed to instruct the jury only on escape. The   court informed the jury that escape is a general intent crime and the evidence   need not show that a prisoner left the outer limits of the institution's   property, only that he passed beyond some barrier designed to keep a prisoner in   a specific area. The jury convicted appellant of escape. The appellate court,   relying on People v. Lavaie (1999) 70 Cal.App.4th 456, which requires   an escape from the actual outer boundary of the prison facility, found   insufficient evidence to support the escape conviction and, under Penal Code   sections 1181, subdivision (6) and 1260, determined that it had no authority to   modify the conviction to attempted escape. The Supreme Court agreed with the   lower court's finding that the conviction could not be modified because, under   the elements test, attempted escape, with its requisite specific intent, is not   a lesser included offense to the general intent crime of escape. (People v.   Smith (1998) 64 Cal.App.4th 1458.) An appellate court may make a   modification by applying the established law to the existing facts found by the   jury, not by finding or changing any fact. Here, because the case was tried   solely as an escape, the jury was never required to make a finding of specific   intent, a required element of attempted escape.

If a family member is being charged with escape under California Penal Code section 4530, make sure you hire a lawyer who understands what this charge means, and how this above case affects your case. You need a lawyer who knows his/her way around a courtroom, and who knows when to object and what to fight in court to maximize your chances of a positive result.

George Derieg, Attorney at Law, is the lawyer you need in this situation. He has a supreme amount of courtroom and specifically jury trial experience. Call the Law Office of George Derieg today for a free consult.

510-355-2747

www.eastbayattorney.com

California Penal Code section 288.4

Case   Name: People v. Yuksel , District: 2 DCA , Division: 8 , Case #: B231571

Opinion Date: 7/11/2012  , DAR   #: 9550

Case Holding:

Despite references to both   child and minor, Penal Code section 288.4 (arranging a meeting with minor for   lewd and lascivious behavior) applies to any child under the age of   18 years. Appellant, having exchanged sexual messages with a police   decoy portrayed as a minor, and then arranging a meeting, was charged with a   violation of Penal Code section 288.4. At trial, he unsuccessfully objected to   the court's jury instruction defining a "child" as any person under the age of   18 years. Affirmed. The Legislative history for section 288.4 reveals that its   provisions were drawn from Penal Code section 647.6, which prohibits a person   with an abnormal sexual interest in children from annoying or bothering any   child under the age of 18. With reference to this history, it is clear that the   two words in section 288.4, child and minor, refer to the same thing; i.e., a   child under the age of 18.

An expert's reliance on hearsay in   formulating his opinion does not necessarily make the hearsay   admissible. The trial court permitted a defense expert to testify to   his opinion that appellant was not a pedophile but excluded appellant's   statements to the expert that he had no prior behavior of such a nature. The appellate court found that the trial court did not abuse its   discretion under Evidence Code section 352 to exclude the evidence because the   trial court deemed it to be unreliable under the circumstances.

If you are charged with violating California Penal Code section 288.4 you must hire an attorney immeidatley. The Law Office of George M. Derieg has valuable experience litigating these cases, even up through jury trial. You need a lawyer who is battle hardened, not afraid to fight for you when you need it most.

George Derieg Attorney at Law

510-355-2747

www.eastbayattorney.com

California Penal Code section 69

Case Name: People v.   Nishi , District: 1 DCA , Division: 1 , Case #: A129724

Opinion Date: 7/13/2012  , DAR #: 9687

Case   Holding:

A warrantless search of a campsite does not violate the   Fourth Amendment when a person is not legitimately on the premises and is aware   that occupying the premises without consent is illegal. In 2010,   appellant sent e-mails to the Department of Defense complaining that Department   of Fish and Game personnel had unlawfully shot protected mountain lions and that   he was armed and would fire on all sheriffs and Fish and Game personnel. The   e-mail was forwarded to local agencies who advised their staff to take   precautions. A deputy sheriff located appellant on a preserve and arrested him.   Appellant's campsite was searched and shotgun shells were located and seized   from a tarp surrounding the tent. The warrantless search did not violate the   Fourth Amendment. Appellant had no reasonable expectation of privacy because he   was not lawfully or legitimately on the premises. Camping on the preserve was   prohibited without a permit and appellant did not have one. Because he   previously had been cited for illegal camping and evicted from other campsites   in the preserve, he was conscious of the illegality. Appellant was not in a   position to legitimately consider the campsite as a place society recognized as   private to him.

Substantial evidence supports a Penal Code   section 69 (resisting an executive officer) conviction when a person e-mails a   threatening message with the intent to deter officials from performing their duties   and it may be inferred that he intended that the message would be conveyed to   the intended targets. Appellant was convicted of section 69, with the   conduct in question being the e-mail he sent to the Department of Defense. The   appellate court, observing that appellant had not raised a First Amendment   argument, evaluated the conviction under a substantial evidence test, and found   that it was supported by the evidence. Penal Code section 69 sets forth two ways   the offense can be committed; the first is by threats to prevent an officer from   performing a duty imposed by law, also known as attempting to deter, and the   second is by resisting an officer by force or violence in the performance of his   duty. Here, the case against appellant was based on the first form of violation   of section 69. The evidence demonstrated that appellant intended to deter   officials from patrolling or otherwise performing duties in the preserve by   threatening to "fire on" them if they appeared. Appellant essentially   acknowledged this when he told a sheriff's deputy that the e-mail "worked" by   keeping officers off the preserve. Section 69 does not require that the threat   be transmitted separately or directly to the intended victim or that defendant   have the present ability to carry it out, only that it deterred performance of   a duty. The inference may be drawn that appellant intended that the threatening   message would be conveyed from the Department of Defense to the intended law   enforcement targets.

If you are arrested for allegedly violating California Penal Code section 69, you need an attorney who understands your situation, and the recent caselaw behind it. The Law Office of George Derieg has serious experience litigating Penal Code section 69 cases.

Contact Attorney George Derieg for all your criminal litigation concerns, particularly Cal Penal Code section 69, resisting an executive officer.

George Derieg

510-355-2747

www.eastbayattorney.com

Aider and Abbettor Attempted Murder

Case Name: People v. Favor , CalSup , Case #: S189317

Opinion Date: 7/16/2012  , DAR #: 9698

Case Holding:

Under the natural and probable consequences   doctrine, to be liable for attempted premeditated murder, there is no   requirement that an aider and abettor reasonably foresaw an attempted   premeditated murder as the natural and probable consequence of the target   offense. Appellant was convicted of first degree murder, attempted   murder, and robbery. The prosecutor's theory was that appellant was guilty of   first degree murder under the felony-murder rule; of robbery, as an aider and   abettor; and of attempted murder under the natural and probable consequences   doctrine. Appellant argued that the trial court erred by not instructing the   jury that it had to determine whether a reasonable person in defendant's   position would have known that premeditated attempted murder, not just attempted   murder, was a natural and probable consequence of the robbery. Disapproving People v. Hart (2009) 176 Cal.App.4th 662, and upholding People v.   Cummins (2005) 127 Cal.App.4th 667, the Supreme Court affirmed. Penal Code   section 664, subdivision (a) (attempted murder) does not create a greater degree   of attempted murder, but rather constitutes a penalty provision increasing the   punishment for attempted murder beyond the maximum otherwise prescribed when the   murder attempted was willful, deliberate, and premeditated. People v.   Lee (2003) 31 Cal.4th 613, held that an individual could be convicted of   premeditated attempted murder, as an aider and abettor, even if he did not   personally act with deliberation and premeditation. The law only requires that   the attempted murder has to be committed by one of the perpetrators with the   requisite state of mind. With its opinion in this case, the Court extended the Lee rationale to the natural and probable consequences doctrine. Under   this holding, it is sufficient that attempted murder is a reasonably foreseeable   consequence of the crime aided and abetted, and the attempted murder itself was   committed willfully, deliberately, and with premeditation.

If you are charged with a group of people for a serious crime, it is imperative you hire an attorney with felony litigation experience as soon as possible. Contact the Law Office of George M. Derieg as soon as possible.

www.eastbayattorney.com

510-355-2747

Disputing Restitution

Case Name: People v. Runyan , CalSup , Case #: S187804

Opinion Date: 7/16/2012  , DAR #: 9707

Case   Holding:

Under Penal Code section 1202.4, where the defendant's   victim dies immediately and leaves no survivors to seek restitution on their own   behalf, restitution to the victim's estate is limited to pre-death losses   resulting from the defendant's criminal conduct. Appellant, driving   intoxicated, killed another driver instantly in a freeway collision. The victim   left no surviving family, dependents, or heirs. Appellant was convicted of gross   vehicular manslaughter, sentenced to prison, and ordered to pay restitution to   the decedent's estate for post-death diminution of value of property the   decedent owned in life, funeral and burial expenses, and costs of estate   administration. The restitution award was reversed. Interpreting section 1202.4   and Marsy's Law, the Court found that the estate was not a "direct" victim and,   therefore, was not entitled to restitution for its own expenses incurred as a   result of the victim's death. Although a decedent's personal representative is   authorized to receive, on the decedent's behalf, restitution for economic losses   the decedent personally incurred prior to death as an actual victim of the   defendant's crime, here there were no such losses.

Restitution can be a tricky situation. You have 30 days to contest a restitution amount once you have been properly noticed of the amount. In order to contest restitution, you should hire a lawyer with the appropriate experience in fighting gross amounts of restitution.

Attorney George Derieg
www.eastbayattorney.com
510-355-2747