February 13, 2012
San Jose Child Rapist to be Extradited Back From Mexico
In 1999, San Jose resident and City College student Rodrigo Calvario, was accused of sexually assaulting a child under the age of 14. The complaint originally listed three violations of Penal Code section 288(a), having sexual contact with a minor under 14. 
The victim is reported to be a relative of Calvario and told leaders of her church that she was assaulted by him on three occasions. When the crimes were forwarded to the San Jose Police, Calvario fled to Mexico with his then five year old daughter. A month later local Bay Area authorities successfully negotiated a return of the child to her mother. However, Calvario remained in Mexico, where he managed a small restaurant. He was arrested by Mexican Police after a several year battle fight over extradition.
International Extradition Treaties as codified under Federal Law allow for a return of a criminal suspect to the United States if the crime committed is an illegal act in both jurisdictions (the United States and the foreign country) and each criminal charge is extraditable; in other words each charge forms a basis for extradition, and each can be prosecuted in both jurisdictions.
State statutes of limitations on the underlying crime may have no affect on a suspect fleeing arrest and prosecution. Title 18, section 3290 of the Federal Code, codifying several international treaties, specifically states that a statute of limitations is made inapplicable whenever an accused flees from justice because the failure to prosecute is attributable to the unacceptable conduct of the accused. See Caplan v. Vokes (1981) 649 F.2d 1336 (9th Cir). Simply stated, the statute of limitations will not apply where the suspect knowingly flees prosecution and the home jurisdiction made all reasonable steps to extradite.
Calvario is due back in Santa Clara County within days to be arraigned on the charges.
Source: Mercury News
February 1, 2012
Santa Clara County Public Defender to Appear at Misdemeanor Arraignments
Santa Clara County is one of the few jurisdictions not to provide some kind of legal representation to indigent defendants at their first court appearance. However, a new county policy change will take effect throughout the San Jose and other county courthouses where the Public Defender will provide a representative to assist people at their arraignment on misdemeanor charges.
Typically, too many defendants charged with a misdemeanor plead guilty at the arraignment after a judge informs them of their rights and provides an indicated sentence. This is true of driving under the influence charges, where the judge informs the defendant that he or she can continue the matter to seek out an attorney or plead guilty on the spot and receive the court's sentence. This of course precludes putting up a defense, especially when in Santa Clara County the punishments are often harsher than San Mateo, San Francisco and other surrounding areas.
Usually in these circumstances a Sheriff Deputy is present handing out waiver of right forms, merely anticipating that some or many of the defendants appearing at their arraignment will plead guilty. Although no pressure is placed on these people, the effect is to have more people plead right on the spot. Often, the defendant does not understand the other collateral effects of a guilty plea and conviction without legal representation on hand. Such consequences can be lifetime sex or narcotics registration, lost of driver's license or deleterious effects on immigration status.
It unclear whether misdemeanor cases in Santa Clara County will be expedited or slowed down by this change, but the county has been playing with fire for not providing some representation early on. This new policy will begin with a pilot project at the San Jose Hall of Justice.
Source: Mercury News.
January 16, 2012
San Jose Bomb Scare Closes Highway 85
Two suspects robbed a Bank of America in San Jose early yesterday, wielding what looked like a bomb. The men fled the scene in a blue Honda and made for Highway 85, driving at speeds well in excess of the posted limit. The robbing duo crashed their Honda into a Minivan at the intersection of Highways 85 and 87 and took off on foot. A woman in the minivan was injured due to the collision.
One suspect was followed by a San Jose martial arts expert who tackled and subdued the suspect. The second suspect ran into the fields of Gunderson High School, only to be arrested a short time later. The school was in lockdown for several hours.
Highway 85 was closed do the possible existence of a bomb in the suspect vehicle.
Although the crash took place at approximately 11:40 a.m., the Highway was closed till around 5:00 p.m. In the end there was no bomb, after the object was later detonated by the police.
The suspects face felony charges including robbery, assault with a deadly weapon, making terrorists threats, evading and conspiracy.
November 21, 2011
Bay Area BART Cop Now Faces Civil Trial
Former Bay Area BART cop Johannes Mehserle is the subject of a civil case of assault dating back to 2008, the San Jose Mercury News reports. Mehserle was convicted of manslaughter for the shooting death of Oscar Grant in January of 2009 . That case generated nationwide reporting, not to mention widespread protests in what community activists claimed was a racially charged murder.
However, before the shooting death of Oscar Grant, a civil suit was filed in San Francisco against Mehserle and four other Bay Area BART police officers in 2008. The Plaintiff claimed that the officers attacked him after he made some disparaging remarks against BART cops. Mehserle is specifically alleged to have tackled the plaintiff in response to the plaintiff's comments.
Mehserle and the other officers have claimed that their actions were in response to threats the plaintiff made to Mehserle. He was in fact arrested for making criminal threats and further charged by the police officers of resisting arrest. The District Attorney's Office dismissed the charges against the plaintiff more than two years ago.
The civil trial was put on hold pending Mehserle's criminal trial in the shooting death of Oscar Grant. The standard that must be proved in a civil trial for battery is very similar to a criminal charge. It must be shown that the defendant (Mehserle and the other BART officers) touched the plaintiff with the intent to harm or offend him, which was not consented to and did cause harm and that such harm would have offended a reasonable person in the same situation.
Mehserle and other named Bay Area officers will likely defend on the grounds that they were making an arrest of the plaintiff and that they used reasonable force in detaining him. Even if the officer is mistaken, an arrestee has a duty not to use force to resist the officer unless that officer is using unreasonable force. In determining what is reasonable force, the jury must determine whether the amount of force used against the plaintiff would have appeared reasonable to a reasonable officer in the same or similar circumstances. What is reasonable depends on the nature and seriousness of the alleged crime and whether the arrestee reasonably appeared to be a danger to the public or pose an immediate threat.
According to the Mercury News, the trial is set to begin sometime after Thanksgiving in the Northern District of California in San Francisco.
October 19, 2011
Bay Area Police May Search Suspect's Cell phone without a Warrant
Governor Jerry Brown vetoed legislation last week that would require police to obtain a warrant before searching the personal cell phone of someone just arrested. The Legislature was responding to a recent California Supreme Court case that ruled police across California, including here in Santa Clara County, may search an arrestee's cell phone (including text messages, emails, photos, recent calls, personal records, bank statements, well, the list goes on) if the search is "incident to the arrest."
The idea of searching a suspect incident to his or her arrest has a long constitutional history. This idea has been expanded by the courts through time, however, more recently the U.S. Supreme Court in the case of People v. Gant, held that such a search must be literally within the scope of the arrestees reach. In other words, to ensure the safety of the arresting officer, and to prevent the loss of evidence, it has been held reasonable for the arresting officer to conduct a prompt, warrantless search of the arrestee's person and the area within his or her immediate control.
This past January, the California Supreme Court in the matter of People v. Diaz, once again has expanded on this idea. Specifically the court declared: "The loss of privacy upon arrest extends beyond the arrestee's body to include personal property immediately associated with the person of the arrestee at the time of arrest. This loss of privacy entitles police not only to seize anything of importance they find on the arrestee's body," but also includes cell phones.
Somehow the court believes it justified to search an arrestee's cell phone 90 minutes after the arrest was made. That is exactly what happened in the Diaz case. Mr. Diaz was involved in a sting operation regarding the sale of illicit narcotics. Diaz was arrested and transported to the Sheriff's Station for booking. An hour and a half later police searched the contents of his cell phone.
It is difficult to see how this search was incident to the arrest, or how the cell phone was still within the area of the arrestee's immediate control. It is painfully obvious that the search was far too removed in time and space to qualify as a search incident to an arrest. The phone had been in exclusive police custody for 90 minutes. It is settled that the area within an arrestee's immediate control means the area from within which the arrestee might gain possession of a weapon or destructible evidence. That being the case, the cell phone ceased to be in Mr. Diaz' immediate control once he was taken into custody and police took possession of the phone. It was quite easy for the police to obtain a search warrant before examining the content of the phone.
Unfortunately the U.S. Supreme Court refused to take the case despite the conflict with Gant. Governor Brown should reconsider his stance and stand up for the Fourth Amendment's protections.
October 13, 2011
NEW RULES FOR SAN JOSE DUI CHECKPOINTS
Governor Jerry Brown signed legislation that will prohibit law enforcement agencies, including San Jose and other Bay Area police from impounding vehicles if a driver is discovered to be unlicensed during a DUI checkpoint. Previously, many police agencies would impound vehicles if the driver, even sober and not otherwise impaired, did not have a valid driver's license.
It has been alleged that the policy of impounding such vehicles unfairly affected minority groups, if not even targeted at illegal immigrants who routinely drive without valid licenses. Once impounded, sometimes for up to thirty days, the fees to get the car released can be too costly for the owner to pay. In many cases the owner of the vehicle is forced to abandon it to the City.
Under the new law, the car must be released to a legal and readily available driver. If one cannot be found at the scene of the checkpoint, it is to be released immediately at the impound yard once one is found. However, if the driver is deemed under the influence, police may still have the vehicle impounded at the owner's cost. To read the new law, AB 353, click here.
Please visit Mr. Johnson's Blog for more news updates at www.sanjosecriminaldefenselawyer.com