San Diego Criminal Attorneys Blog

San Diego Police Department Uses Facial Recognition Software

Published on: August 18, 2015 | by Leslie Legal Group

This week, the New York Times published an article about law enforcement’s use of facial recognition software. The article specifically mentions the San Diego Police Department, and accuses it of misuse of this software. Facial recognition software is a new technology to local law enforcement. It was first utilized by the military, and critics of the technology worry about violations of civil liberties, privacy, and misidentification of individuals. The New York Times story includes an account of two local men who said they felt San Diego police violated their rights when the facial recognition software was used on them. Neither man was actually arrested.

One of the men, Eric Hanson, a retired firefighter with no criminal record says that he was “stopped by the police after a dispute with a man he said was prowler. He was ordered to sit on a curb while officers took his photo with an iPad and ran it through facial recognition software. The officers also used a cotton swab to collect a DNA sample from the inside of his cheek. I was thinking, ‘Why are you taking pictures of me, doing this to me?’ I felt like my identity was being stolen. I’m a straight-up, no lie, cheat or steal guy, and I get treated like a criminal.”

San Diego police spokesman Lieutenant Scott Wahl agreed to be interviewed for the New York Times story because he says that he understands the concerns and debate about the use of facial recognition technology by local police. He explained why it is important to be transparent, to ensure people understand the software. The New York Times article claimed that the software is used “with little oversight or training, and that San Diego County law enforcement are building a massive database of photos of people, whether they are suspected of crimes or not.” Wahl refutes these claims and says that they simply are untrue.

Gang Member Becomes Attorney and Mentor

Published on: August 15, 2015 | by Leslie Legal Group

David Lee Windecher grew up poor in Miami in a community burdened by guns and drugs. Against the odds, Windecher rejected the world in which he was a self-described “gangster,” to become a lawyer and mentor for at-risk youth. Before renouncing gang life, Windecher was arrested 13 times. He is now using his story to inspire others that are attempting to make something of themselves when a life of crime, drugs, or violence is all they know. He wrote a book entitled The AmerIcan Dream: HisStory in the Making.

Windecher should serve as an inspiration for troubled offenders at any age. He is living proof that you can turn your life around if you put your mind to it. He joined the Georgia bar in 2012 and the Florida bar last year. He recently set up his own criminal defense practice. A portion of the proceeds of his book fund his nonprofit RED Inc. (Rehabilitation Enables Dreams). RED Inc. funds a GED program, together with a program run by the office of DeKalb County Solicitor Sherry Boston.

Windecher was reluctant to share his story at first. “I talk to my clients about my background, and a lot of times they get emotional. At first I was hesitant; being that transparent can make you vulnerable.” He and his siblings grew up in poverty. He was first arrested at the age of 11 for shoplifting. He chose to join a Hispanic gang after a beating by local black gang members. He needed money, so he formed a crime ring before he could even drive. His crime ring dealt drugs, stole cars, and robbed businessmen. As a teenager, his life consisted of gang activity and he was arrested repeatedly for various offenses including grand theft, battery, assault, and conspiracy.

DUI Checkpoints

Published on: August 6, 2015 | by Leslie Legal Group

Although they may not be the best tool for the identification of drunk drivers, DUI checkpoints are still commonly used in the San Diego area (and throughout the state of California). The efficiency and accuracy of these checkpoints are debatable. DUI checkpoints were modeled after roadside safety checks as well as license and registration inspection checkpoints. At a DUI checkpoint, police will check a driver’s sobriety. If the driver exhibits any signs of impairment, the driver will be asked to exit the vehicle and perform a series of field sobriety tests. In Michigan Department of State Police v. Sitz, the U.S. Supreme Court held that DUI checkpoints were constitutional and that they did not violate the Fourth Amendment’s ban on unreasonable search and seizure. Therefore, it is not likely that DUI checkpoints will go away anytime soon.

In recent years, sobriety checkpoints have been increasingly utilized in the San Diego area. Proceeds from fines and California state grant dollars have only served to encourage the use of these checkpoints. DUI checkpoints are most often set up on the weekends throughout the county.

Just last week, six motorists were arrested for driving under the influence at a DUI checkpoint in the East Village neighborhood of San Diego. Six vehicles also were impounded during the checkpoint that occurred at the 1400 block of G Street on Saturday night. San Diego police officer Mark McCullough said that 2,597 vehicles passed through the checkpoint that night, and 1,050 of those were screened by police.

Resisting Unlawful Arrest

Published on: July 31, 2015 | by Leslie Legal Group

We are seeing an increase in news about people resisting arrest. These mishaps began to enter the public consciousness with the Rodney King video release, and continue through situations like the Trayvon Martin case in Florida. Most people who are arrested will not resist the arrest, all too often out of fear of police brutality, regardless of whether the arrest is lawful or not. However, some individuals who have not done anything wrong will resist an unlawful arrest, and rightfully so, considering the arrestee had not done anything wrong. What does resisting an unlawful arrest get you? Usually in more trouble.

Resisting Arrest and the Consequences

Resisting an arrest usually involves fighting a police officer, running away from a police officer, or threatening a police officer. In most jurisdictions resisting an arrest is an additional charge that can be added to the underlying charge for which you are arrested. So what type of consequences come along with a resisting arrest charge? Resisting arrest is considered a Class A Misdemeanor. Under this class of crime, the Court can order jail for 48 hours or order you to perform community service for at least 100 hours. The resisting arrest conviction does not resolve with the initial reason why you were arrested in the first place.

A Romero Motion Can Help Avoid Third Strike Punishment

Published on: July 24, 2015 | by Leslie Legal Group

California voters passed Proposition 184 in 1994. Proposition 184 created the “Three Strikes” sentencing law, significantly increasing the penalties for second and third offenders of serious felonies. According to the California Penal Code, when a defendant has at least two previous “strikes,” he or she is eligible to be sentenced to a prison term of 25 years to life. However, the judge has discretion to dismiss one or more of the defendant’s serious or violent penalties if he or she does not feel 25 to life is an appropriate punishment. In 1996, the California Supreme Court decided “People v. Romero,” granting the judge this discretion.

In order for the judge to exercise this discretion, the defense attorney must submit a Romero Motion declaring that dismissing defendant’s previous strike would be in the best interest of justice. Under California Penal Code 1385, the judge must state his or her reasons for dismissing defendant’s previous strikes. Under a Romero motion, the judge will consider several factors in defendant’s case, including:

Age at the time the previous crime was committed

What is a California Expungement? What Should I Know?

Published on: July 20, 2015 | by Leslie Legal Group

Whether you have a felony, misdemeanor, or infraction conviction, you can petition the court to expunge your criminal record. However, it is a common misunderstanding in California that getting a California Expungement means you get your criminal record completely destroyed or tossed in the trash. That is far from the truth.

California Expungements pursuant to California Penal Code 1203.4 allow those convicted of a crime to re-open their old conviction and change their guilty plea to a not guilty one. The court then dismisses the case so you can truthfully and legally say you were never convicted of the crime that was charged.

What Should I Know When Applying for a California Expungement?

What is the LEAD Program?

Published on: June 29, 2015 | by Leslie Legal Group

The Law Enforcement Assisted Diversion (LEAD) program started out as a pilot program in Seattle. The program was quite successful and is now being used by some counties in California. LEAD was developed as a solution to low-level drug and prostitution crimes. It is designed to rehabilitate a certain group of non-violent offenders instead of sending them straight to prison. The program started as a pilot experiment in which 203 participants were randomly selected over four years. It is offered to offenders that are arrested in possession of 3 grams of illegal drugs or less, have no history of violent criminal offenses, and are not involved in promotion of prostitution or exploiting minors for drug sales. So far the LEAD program has reduced the likelihood of repeat arrests for those that participated in the initial program.

What exactly is LEAD?

LEAD is a diversion program. Diversion programs are designed to minimize the negative effects that are connected with drug crimes, such as homelessness and the inability to obtain gainful employment. The program replaces incarceration with rehabilitation. LEAD “cuts out the criminal justice system and assigns voluntary participants to case workers who can provide immediate help – a hot meal, a warm coat, a safe place to sleep – as well as longer-term services for drug treatment, stable housing, and job training. Services are individually tailored and relapses are expected.” LEAD is a pre-booking program, which means that it occurs before you are formally charged for a drug crime. Unlike the existing diversion programs in California, LEAD operates by transferring offenders immediately to case management instead of going through the court or prison system.

Charleston Church Shooter Likely Facing Federal Hate Crime Charges

Published on: June 24, 2015 | by Leslie Legal Group

The New York Times has reported that the U.S. Department of Justice will most likely file federal hate crime charges against Dylann Roof, the suspect of the shooting that occurred this week at a church in Charleston, South Carolina. Roof is currently facing nine counts of murder and may face the death penalty in South Carolina state court. However, the Department of Justice and the FBI have agreed that the shooting was racially motivated and that federal charges must also be brought.

FBI analysts have established with “a high degree of certainty” that Roof created a website where he posted a racist manifesto. It was established that the website was initially registered under his name, but that he removed his name and made the registration anonymous the next day.

Generally, when a case involves violations of both state and federal laws, federal charges are not brought. The case against Dylann Roof is unique because South Carolina does not have any law prohibiting hate or racially motivated crimes. The Department of Justice is choosing to step in here because if Roof faced only murder charges, the hate crime component would not be addressed. One Department of Justice Official said that “this directly fits the hate crime statute. This is exactly what it was created for.” The charges are not yet official, as many details of the case have yet to be resolved. Though the federal charges are not yet official, Roof has been assigned two federal public defenders, in addition to the state public defenders assigned to defend him on his pending state charges.

Felony Conviction and Employment in California

Published on: June 16, 2015 | by Leslie Legal Group

A felony conviction can result in time spent under incarceration for at least one year. But a felony’s impact does not end there. In California, various privileges and civil rights enjoyed by the general population can be lost due to a felony conviction. It can be increasingly difficult to find gainful employment. A felony conviction can make life difficult for years after jail time or probation has ended, making rehabilitation into society difficult for convicted felons.

When applying for a job, one must disclose felony convictions on applications. Disclosing a felony conviction may result in not getting hired. However, failure to disclose a felony conviction on an employment application may result in termination of employment and an inability to receive unemployment benefits. Unfortunately, an employer is legally allowed not to hire a candidate based on a prior conviction. However, a prior conviction may also be a pretext to decline to hire a felon on the basis of illegal bias, violating Title VII of the Civil Rights Act of 1964 (discrimination on the basis of race, color, religion, sex, or national origin). Federal guidelines only recommend that employers do not automatically disqualify convicted felons on the basis of their conviction. California has adopted this, but an employer may still refuse to hire a convicted felon if there is a valid business reason for the refusal. For example, if the potential job involves access to narcotics, you may be disqualified based upon a felony drug conviction.

If you have been convicted of a felony, it is important to know your rights regarding employment interviews prior to interviewing. You need to know what is illegal for the potential employer to ask and what information you need not disclose. It is important to consult an attorney if you feel you have been illegally discriminated against for past crimes. For example, a prospective employer may not ask you about:

Will California Legalize Prostitution?

Published on: June 8, 2015 | by Leslie Legal Group

Okay, California will probably not legalize prostitution, but one California nonprofit thinks it could be possible. Erotic Service Provider Legal Education and Research Project (ESPLER) is trying to legalize the profession by arguing that prostitution’s illegality violates the Fourteenth Amendment of the Constitution. ESPLER argues in its complaint that laws prohibiting prostitution and solicitation violate substantive due process rights and violate one’s liberty interest in one’s private, sexual relationships. ESPLER argues in its brief that California laws criminalizing prostitution “deprive individuals of the fundamental right to engage in consensual, private sexual activity; deny individuals the right to choose for themselves how to earn a living and who to enter a contract with; limit how and with whom an individual can associate in private; discourage safe sex because the possession of condoms is used as evidence by prosecutors; California has failed to provide a legitimate rational to continue denying individuals the right of free speech, the right to earn a living, and the right to freely associate; and the Penal Code is so vaguely worded that it criminalizes the mere discussion of paying for erotic services between consenting adults.”

Veronica Monet, a former sex worker and current relationship counselor, is behind ESPLER’s fight to legalize prostitution. She says that criminalizing this behavior pulls the industry underground and sets “up antagonism between law enforcement and women who want to run their own lives, or women who are in it for survival.” Monet and ESPLER believe that decriminalizing the profession and setting up an open dialogue with sex workers can help prevent major problems with the industry, for example, underage women forced into prostitution, abusive pimps, or rapists.

There is no doubt that ESPLER has a difficult fight ahead of them, and it remains to be determined whether the court will buy their arguments. In order to prevail in court, ESPLER must demonstrate that the denial of the rights mentioned above “offends decency and fairness,” and that the rights are “deeply rooted in the nation’s history.” Time will tell if this fight is successful, but until then prostitution remains illegal in the state of California. If you are accused of prostitution, you will need to consult an experienced attorney.