False confessions undeniably lead to the convictions of innocent suspects. Despite this harsh reality, we now have an appellate court decision reaffirming the principle that law enforcement can be trusted to use deception in order to obtain a suspects confession. However, San Diego Criminal lawyers remember well the lessons derived from the Richard Tuite case. Tuite was convicted in the stabbing death of 12-years old Stephanie Crowe while she lay asleep in bed. Stephanie’s brother and his two friends were initially charged with the killing after aggressive interrogation lead to incriminating statements. The boys were inconveniently innocent. Their statements were later thrown out by the court after an analysis of law enforcement interrogation techniques, including the infamous use of Detective McDonough’s ”lie detector machine.” Law enforcement lied to the boys about the validity of the machine and the results in order to break down their free-will and obtain a statement. Tuite, who was questioned in the killing right from the beginning, was dismissed as a suspect as the cops focused on the boys.  The lies were only part of the problem- but a major problem - with the reliability of the statements. The boys were kept from their parents, interrogated for hours non-stop, and every effort was made to undermine their wishes to cease the interview.

 Recently in the case of People v. Mays a California appellate court found that incriminating statements made by a criminal defendant were voluntary and admissible even considering that the police lied in obtaining the statement by showing the defendant falsified results of a police conducted polygraph test.  Specifically, the detectives were attempting to establish that a suspect was at the scene of the crime.  “[T]he police placed on [the suspects] body patches connected to wires, pretended to administer a lie detector test, fabricated written test results, showed defendant the fake results, and told him the results showed he failed the test.  The detective suggested that perhaps defendant failed because he was present during the crime and felt some guilt about that. Defendant then admitted he was present at the shooting.”   The trial court permitted evidence of this admission, and on appeal the court found “no grounds for reversal.”

Generally, when a confession is coerced by police actions, it is considered an involuntary statement and is therefore inadmissible in court.  But, can the police lie to a suspect and engage in trickery without their action being considered coercion?  Many courts have held that police trickery that occurs in the process of a criminal interrogation does not, by itself, render a confession involuntary.  While the extent of the deception employed by the police in the Mays case is abnormal, it is not uncommon for the police to lie to a suspect in an attempt to further an investigation.  Mays is simply another cautionary example of how far the police are willing and permitted to push the envelope.

The El Cajon Police Department yesterday published the names and photographs of men convicted of soliciting an act of prostitution and women convicted of agreeing to an act of prostitution. The men were snared through undercover officers posing as prostitutes. The woman were snared by undercover officers posing as Johns. Prostitution involves agreeing to pay for a sex act together with an act in furtherance of the agreement. The City of El Cajon decided that this crime is so serious that they will specially treat those convicted of prostitution to public shame and humiliation. Currently, El Cajon is the only City in San Diego County to publish the names and photographs of the convicted online, and I hope it will remain that way.  In my view the police should not be publishing this information. Internet publication of offender information goes well beyond what is otherwise in the public record. The public record of conviction does not contain a photograph of convicted person and is not available to anyone with a computer, nor does it need to be. Moreover, internet information may live forever in cached sites. A person is entitled to clear their record though rehabilitation and expungement without being permanently stigmatized. In San Diego, Criminal defense lawyers expunge prostitution convictions every day. If you believe that women are exploited by prostituting themselves, you would agree that they are further exploited and victimized by the stigma of  publishing their conviction and photo to the world. The majority of these women are teenagers. They deserve a second chance. No one can seriously believe that these women will be deterred from their conduct. The men - Johns - obviously have a lot to lose and arguably are deterred by publishing their names and photographs, but why are they also singled out for this public shaming and those convicted of other crimes ignored? They are obviously also entitled to rehabilitation and expugement without having to suffer beyond their punishment. For my part, this San Diego County criminal defense attorney will continue to fight these matters to jury trial, especially in El Cajon. I have had multiple prostitution juries report to me that they believe the time and money spent prosecuting these matter would be much better spent on other crimes.

Clearing an arrest warrant for a misdemeanor offense can usually be done without the defendant having to appear personally in court, with very few exceptions. Defendants who live in anther state are often surprised to find that we often clear misdemeanor warrants the same day we are retained.  On the other hand, clearing a felony warrant almost always requires that the defendant personally appear in court. In San Diego county, each court branch has distinct rules and procedures for clearing a warrant, and felony warrants are treated differently from court to court.  Contact this office for a free consultation on safely and quickly clearing your warrant.

All Matters Handled Personally by Domenic J. Lombardo.

This legal blog - an experiment - has not been updated during the last 5 months as the Law Office of Attorney Domenic J. Lombardo has focused attention instead on obtaining favorable results in many cases, most recently:

1. Cocaine (1/2 pound), marijuana, ecstasy, $9,000.00 cash
Evidence suppressed, case dismissed. Unlawful search of client’s home.

2. DUI
Evidence suppressed. Unlawful detention of defendant. Dismissal of case pending.

3. Three strikes matter (25-life)
Strikes dismissed, probation granted.

4. 1/2 oz. cocaine, DUI (second) while on probation
Probation, 30 days public work service.

5. Domestic Violence Matter(s)
Charges not filed. Several cases not issued by prosecutor after defense investigation uncovers favorable information.

6. Rape Allegation(s)
Charges not filed.  In separate matters favorable defense investigation leads to charges not being filed.  In one case, the defense was able to establish that the complaining witness had actually fabricated evidence in an unrelated matter.

7. Theft of over $100,000
Probation, work furlough.

8. Marijuana Trafficking
3 felony matters, probation, work furlough.

9. Parole Violation
The parole commissioner conducted a hearing and agreed with Mr.Lombardo to simply continue the defendant on parole rather than return him to prison.

10.Felony bad check(s)
Charges dismissed, remaining charge reduced to misdemeanor, no jail.

11. Felony Evasion
Reduced to misdemeanor, no jail.

12. Theft Case(s)
Civil Compromise obtained leading to dismissal of charges in separate cases.

13. Juvenile Probation violaton
Reinstated on probation.

14.  Juvenile Drug Possession
Deferred entry of judgement, case dismissed.

15. Juvenile Explosive Device, burglary, theft
Deferred entry of judgement, case dismissed.

16. DMV Commercial License Hearing
Case dismissed, license reinstated.

17. Many, many matters involving successful motion to terminate probation early, reductions to misdemeanors, and expungement.

The above-referenced matters litigated over the past 5 months are meant to be representative of the type of matters routinely handled by our office. Of course, we have handled many other matters over the past 5 months with great results. The list is by no means exclusive and is simply a compilation of those matters that come readily to mind. We obviously do not guarantee any result in any case, and this list is not meant to convey that impression, but to give you the assurance that we do approach our job with integrity and we are often rewarded for our efforts.

Call us for a free consultation in any criminal defense matter. Our San Diego main office number is (619) 232-5122.

The California Supreme Court reaffirmed the principals articulated in the landmark case of Cunningham , supra, by ruling that a defendant was entitled to attack the court’s imposition of the upper term in because, under the circumstances of this case, an express waiver of jury trial on aggravating circumstances was required and no such waiver occurred; and further, that in pleading no contest pursuant to a plea agreement providing for a sentence not to exceed a stipulated maximum and further stipulating to a factual basis for the plea, defendant neither waived his right to a jury trial on aggravating circumstances nor admitted facts that established an aggravating circumstance.

LESSONS FOR THE UNWARY CRIMINAL DEFENSE LAWYER

The case points out the following lessons for criminal defense attorneys:

1. A waiver of trial rights on aggravating factors should NEVER be given at the time that defendant enters a plea of guilty or not contest unless clearly bargained for in a plea-agreement AND expressly waived in open court with a fully informed and knowing understanding of what is being waived.
2. Carefully consider the factual basis for the plea together with any judicial admission made on behalf of or by the criminal defendant; these words will come back to bite. The attorney must guard against unnecessarily having the client admit to the existence of any aggravating factor, either generally or specifically.
3. Cases that proceed to a jury trial will require careful consideration of what aggravating and mitigating factors should be specifically put forward to the jury for their determination; special verdict forms must be crafted depending on the dictates on the case together with tactical considerations.

In this way, an attorney can possibly protect their client against the prosecutor reaching the maximum sentence.

The court began by noting that in Cunningham, 549 U.S. ____ [127 S.Ct. 856] the high court held that California’s determinate sentencing law (DSL) violates a defendant’s federal constitutional right to a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution by assigning to the trial judge, rather than the jury, the authority to make the factual findings that subject a defendant to the possibility of an upper term sentence

In the case before the California Court, the trial court sentenced defendant to the upper term of eight years on one charge and one-third of the six-year midterm on each of the other five charges (child molestation), with all terms to be served consecutively, for a total term of 18 years. The trial court selected the upper term because “[d]efendant took advantage of a position of trust and confidence to commit the crime pursuant to Rule 4.421(a)(11),” and imposed consecutive terms because the crimes were committed on different occasions or at separate locations. (Cal. Rules of Court, rule 4.425(a)(3).)

At the time that defendant entered his plea of no contest, he expressly waived his right to a jury trial on the substantive offenses, but this waiver did not encompass his right to a jury trial on any aggravating circumstances. Moreover, the defendant did not admit to the existence of any aggravating factor, either generally or specifically.

Decisions of the United States Supreme Court acknowledge that a defendant’s sentence may be increased above the statutory maximum based upon “facts… admitted by the defendant”. (Cunningham, supra, 127 S.Ct. at p. 865, quoting Blakely, supra, 542 U.S. at p. 303.) As discussed above, defendant’s plea of no contest constituted an admission to the elements of the charged offenses only, and not to any additional aggravating circumstances. The Attorney General argued, that defendant’s stipulation to the factual basis for the plea as described by the prosecutor constituted an admission to the aggravating circumstance that defendant took advantage of a position of trust in committing the offense. The court concluded otherwise.

California law has long provided a way to expunge certain criminal convictions for those individuals who are off probation and are not serving a sentence for any other offense. Unfortunately, the California legislature has started to chip away at the right to expunge a criminal record, now providing that qualifying individuals for certain crimes must demonstrate that the expungement is in the interests of justice. In other words, the judges had no choice but to allow expungement in certain qualifying cases, but the judges now have discretion to deny the application. The change primarily affects those individuals who have been convicted of driving related offenses, such as DUI “driving under the influence,” or “wet reckless.”  The practical effect of this change is now too early to be seen, but judges in San Diego have long rewarded people with criminal records who can demonstrate rehabilitation. I would think that if an individual needs the expungement for employment, supporting a family, or obtaining a professional or vocational licence, and if all conditions of probation have been completed, San Diego judges will continue to allow expungement for these individuals with qualifying convictions.