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San Francisco Traffic Law Clinic
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Since 1985 San Francisco Traffic Law Clinic

Police need a warrant to search a cellphone, but the issue of whether law enforcement can compel someone to divulge a passcode has not been resolved. According to Apple News the Indiana Supreme Court heard arguments on the issue and the state supreme courts in Pennsylvania and New Jersey may soon address the issue.

[https://apple.news/A8OwSxUtASey41s7HmTm8HQa] Police are increasingly relying on social media as a way to investigate suspects. Access to an accused’s cell phone can often provide incriminating evidence that is difficult to refute. So police argue that obtaining a cell phone’s passcode is essential for police work.

Passcodes necessary for Police Work

Youth  are generally viewed as having less culpability under criminal law than adults who commit similar crimes. The mitigating factors of a defendant’s youth can be used to argue for a court to exercise its discretion to strike enhancements. For example,  under section 12022.5, subdivision (c) a court may  dismiss or strike the sentence enhancement imposed for personal use of a firearm during commission of a felony.

History of Youth Offender Hearings

Senate Bill 260 took effect on January 1, 2014. The law created a special youth offender parole hearing for inmates who committed their controlling offense before reaching age 18. The intent of the law was to “establish a parole eligibility mechanism that provides a person serving a sentence for crimes that he or she committed as a juvenile the opportunity to obtain release when he or she has shown that he or she has been rehabilitated and gained maturity.” It was also intended to “create a process by which growth and maturity of youthful offenders can be assessed and a meaningful opportunity for release established.”

Definition of Prima Facie

Prima Facie is Latin for “at first sight” and means based on what seems to be the truth when first seen or heard. Prima facie may be used as an adjective meaning “sufficient to establish a fact or raise a presumption unless disproved or rebutted.” An example of this would be to use the term “prima facie evidence.”

It may also be used as an adverb meaning “on first appearance but subject to further evidence or information.” An example of this would be to use the term “prima facie valid.”

Trial Court may impose additional release conditions even after a defendant has posted bail

In re Webb, 2019 WL 2220410, S247074,May 23, 2019

Bettie Webb was arrested and charged with two felony counts of bringing controlled substances in to state prion and unauthorized possession of a controlled substance in a prison. She posted $50,000 bail and was released from custody. At arraignment, she pleaded not guilty to the charges. Over her objection, the court imposed, as an additional condition of release, that she waive her Fourth Amendment right to be free of warrantless or unreasonable searches.

Everyone agrees that driving while distracted is a bad thing. What everyone does not agree on, however, is how best to go about encouraging drivers to put down their cell phones while behind the wheel. Currently, the California legislature is considering a bill that would increase the penalties associated with texting or otherwise using a phone while driving. As California lawmakers explore upping these penalties, it is important to keep in mind just how damaging these infractions can be for you financially. If you find yourself needing to challenge this kind of violation, be sure you have skillful San Francisco traffic ticket and DMV defense counsel on your side.

CBS Sacramento reported that, on May 16, a legislative committee passed Assembly Bill 47. As originally written, the bill would have tacked a point onto the license of any driver ticketed for texting or holding a phone while driving. The bill, however, has already undergone some changes. As currently amended, the bill says that you get a point on your license if your cell phone violation is your second within a 36-month period.

Of course, the option of traffic school may exist for you. If you are eligible for traffic school, then you can use that process to avoid having that point tacked onto your license. For those eligible, this means that you would not have a point added to your license unless you rack up at least three texting-while-driving violations in that 36-month window.

Defendant Sara Arcelia Salcido was in the business of obtaining visas for her clients that would allow them to stay in the United States legally. The Immigration Consultants Act (Bus. & Prof. Code, §§ 22440–22449) (Act) makes it illegal for a person to act as an “immigration consultant” unless they pass a background check and file a bond. Defendant failed to comply with these provisions.

Defendant was convicted on one count of unlawfully engaging in the business of an immigration consultant, a misdemeanor. (Bus. & Prof. Code, §§ 22440, 22441.) The prosecution argued that each time defendant took money from a client in exchange for providing immigration services, she was committing theft by false pretenses, because she was not a legally qualified immigration consultant under state law. The trial court agreed convicting her on six counts of grand theft (Pen. Code, §§ 484, 487, subd. (a)) and two counts of petty theft (Pen. Code, §§ 484, 488. Defendant was placed on probation for five years. On appeal, Salcido argued that Federal Law preempted state regulation.

Preemption Principles.

Uber and Lyft under increased pressure for more intensive background checks

Uber and Lyft have conducted their own background checks on drivers in most states with little or no oversight and have used lobbyists to shape legislation that would regulate how they perform background checks on drivers. However, under a demand for more protection for passengers from drivers’ with criminal records, many drivers are being terminated from driving for Uber and Lyft.

Uber background checks

Anthony Taylor filed a habeas petition claiming that his special circumstance finding in a felony murder conviction should be vacated due to insufficient evidence based on recent caselaw. His petition, filed 20 years after finality of direct review, was considered timely because it was brought within a year of that recent caselaw that provided him with a legal claim.

Taylor’s conviction as an idea and abettor

Anthony Taylor participated in an attempted robbery at a Livermore liquor store during which one of his accomplices shot to death a store employee. In 1994, Taylor was convicted of first degree felony murder and the jury found that the killing occurred in the commission of an attempted robbery that he aided and abetted “as a major participant” and “with reckless indifference to human life,” a special circumstance requiring a sentence of life in prison without the possibility of parole under Penal Code section 190.2, subdivision (d) (section 190.2(d) ). The special circumstance finding was previously upheld on appeal, the Court fining that Taylor was both a major participant and had made statements after the murder that showed a reckless and callous indifference for human life.

Defendants who plead or are found guilty of traffic violations and other misdemeanors are typically assessed court fees and fines under Gov. Code, § 70373, Pen. Code, § 1465.8, and Pen. Code, § 1202.4, Unpaid fines usually go to collections without further order of the court.

Courts must determine a defendant’s ability to pay fees and assessment.

The Court of Appeal ruled in People v Dueñas (285645) that when poverty is the only reason a defendant cannot pay court fee and fines, using the criminal process to collect them is unconstitutional. Its decision bars courts from imposing court fees and assessments without determining a defendant’s present ability to pay. Despite Pen. Code, § 1202.4, precluding consideration of a defendant’s ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed under must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine