Category: criminal law

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California Penal Code Section 490.6

KNOTTS_9255

PURSUANT TO CALIFORNIA PENAL CODE SECTION 490.6; LINE JUMPING, SAVING SPACE IN LINE FOR OTHERS, PROFANITY OR USE OF LASER PENS IS PROHIBITED. LASER PENS WILL BE PERMANENTLY CONFISCADED [sic]. VIOLATORS WILL BE REMOVED FROM THE PARK.

During a recent trip to Knott’s Berry Farm, I saw the above sign citing California Penal Code Section 490.6. I was intrigued and had to look up the statute. Was the law specific to amusement parks? Did it regulate line jumping or laser pens? I had to find out.

Interestingly, California Penal Code Section 490.6 is in Part 1, Of Crimes and Punishments, Title 13, Of Crimes Against Property, Chapter 5, Larceny, of the California Penal Code. Now, what does line jumping and saving space in line for others have to do with larceny? Not much.

As it turns out, Penal Code Section 490.6 deals with the right of an amusement park to detain a guest for violating a lawful amusement park rule. Paragraph (a) requires an amusement park employee to have probable cause to believe that a lawful amusement park rule was violated in order to detain a person for a reasonable time.

A person employed by an amusement park may detain a person for a reasonable time for the purpose of conducting an investigation in a reasonable manner whenever the person employed by the amusement park has probable cause to believe the person to be detained is violating lawful amusement park rules.

Paragraph (b) permits an amusement park employee to request that a guest comply with lawful amusement park rules or leave the premises. Refusal to leave the premises or comply with lawful amusement park rules is a misdemeanor under California Penal Code Section 602.1 for intentionally interfering with a lawful business.

If any person admitted to an amusement park refuses or fails to follow lawful amusement park rules, after being so informed, then an amusement park employee may request that the person either comply or leave the premises. If the person refuses to leave the premises or comply with lawful park rules, then the person shall be deemed to be intentionally interfering with and obstructing those attempting to carry on a lawful business within the meaning of Section 602.1.

Finally, paragraph (c) provides a defense to the amusement park in the event it is sued in civil court for false imprisonment. So long as the amusement park employee had probable cause to believe that a guest was not following lawful amusement park rules and the employee was acting reasonably under the circumstances, the amusement park may claim this as a defense.

In any civil action brought by any person resulting from a detention or an arrest by a person employed by an amusement park, it shall be a defense to that action that the amusement park employee detaining or arresting the person had probable cause to believe that the person was not following lawful amusement park rules and that the amusement park employee acted reasonably under all the circumstances.

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criminal law

Convicted Murderer Sues the State For Taking Too Long to Execute Him

A recent decision from the U.S. District Court for the Central District of California found California’s implementation of the death penalty to be unconstitutional. In that case, Judge Cormac J. Carney vacated the death sentence of Ernest Dewayne Jones, who was convicted of first degree murder and rape.

Were this a routine death penalty appeal where the death sentence was vacated because of mental retardation, age of minority, or actual innocence, it probably would not have merited additional attention. What makes Jones v. Wong a remarkable Man Bites Dog case is the counter-intuitive reasoning offered by the judge: the death penalty process in California is unconstitutional because the state is taking too long to execute prisoners on death row.

Specifically, the judge found that the administration of the death penalty in California violated the Eighth Amendment’s prohibition against cruel and unusual punishment. The judge asserted that the death penalty, when administered, would be arbitrary because only a select few who have been sentenced to death will actually be executed due to the long appeal process. Additionally, the death penalty serves no penological purpose because the lengthy delay in imposing the sentence limits the retributive and deterrence effects.

The judge further accused California of running a dysfunctional death penalty system on account of the “inordinate and unpredictable period of delay” preceding executions with the time between sentencing and execution taking 25 years, which is twice the national average. The judge stated that the current death penalty process which leads to “life in prison, with a remote possibility of death” is not one that “a rational jury or legislature could ever impose,” and attributed the delay to inadequate funding and the automatic appeal of death sentences to the state supreme court.

While some death penalty opponents cheered this decision, their initial enthusiasm may be misplaced. This judge is not an opponent of the death penalty along the lines of Justice Blackmun who famously pledged to no longer tinker with the machinery of death. Instead, the judge appears to be forcing the California legislature to address the death penalty issue: either fix the system or surrender the pretense in its entirety.

Death penalty opponents are counting on the state to finally abandon the death penalty an unaffordable exercise of retribution. That is certainly one possibility. However, the legislature could also adopt the recommendations of the California Commission on the Fair Administration of Justice and reform the administration of the death penalty in California. If that happens, petitioner may rue the appeal that forced the state into action. Maybe a life in prison with a remote chance of execution beats a certain execution free of unconstitutional delays.

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criminal law

California Penal Code Section 626.8

JLS is middle school in the Palo Alto Unified School District. The school is located adjacent to Mitchell Park. The JLS Athletic Fields is an open, unfenced field located between the school fence and the park, with a pathway marking the border.

I spotted the JLS Athletic Fields sign, which cited California Penal Code Section 626.8. I wasn’t sure whether the penal code section was in reference to the use of the field during school hours, or the requirement to register at the school office.

penal-code-626.8

The sign states:

Welcome to the JLS Athletic Fields

JLS has exclusive use of these fields during school hours, 7:30 AM – 3:30 PM. During these hours all visitors must register at the school office. Any person who violates these rules will be cited under C.P.C. Section 626.8

The penal code section prohibits persons from coming upon school ground (which should cover the athletic fields) without lawful business and “whose presence or acts interfere with the peaceful conduct of activities of the school or disrupt the school or its pupils or school activities.”

So, playing soccer on the athletic fields during school hours can get you cited for a misdemeanor, which is punishable by a fine up to $500 and imprisonment in county jail up to six months, or both. However, that’s only if you remain after being asked to leave by the principal, member of the security or a police officer. Sounds completely reasonable.

However, California Penal Code Section 626.8 does include an odd provision. Paragraph (a)(4), which was added by Assembly Bill 123, penalizes a person who “[w]illfully or knowingly creates a disruption with the intent to threaten the immediate physical safety of any pupil in preschool, kindergarten, or any of grades 1 to 8, inclusive, arriving at, attending, or leaving from school.”

We’re not talking about someone who physically harms a pupil, but a person who creates a disruption with the intent to threaten the immediate physical safety of a pupil. Furthermore, this prohibition only protects pupils in preschool and K-8.

The Mercury News reported that this provision was added because an anti-abotion group was displaying large photographs of aborted fetuses outside a California middle school. Yes, such behavior may cause a disruption, but how exactly does it threaten the immediate physical safety of a pupil? Doesn’t seem to fit at all.

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criminal law

Respublica versus Abraham Carlisle

Respublica v. Carlisle, 1 U.S. 35 (1778) was a high treason case decided in the midst of the American Revolution by the Court of Oyer and Terminer at Philadelphia.

The indictment accused the defendant of “not having the fear of God before his eyes, but being moved and seduced by the instigation of the Devil… to subvert, and to raise again and restore the government and tyranny of the king of Great-Britain.”

Such colorful language. For being a loyalist, “the Defendant, a short time afterwards, was accordingly executed.”

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criminal law

Are Collateral Damages Acceptable in the Administration of the Death Penalty?

This November, California voters will face a literal life-or-death decision. Proposition 34, titled “Death Penalty. Initiative Statute,” proposes to repeal the death penalty and replace it with life imprisonment without the possibility of parole.

At first glance, the initiative may appear as a referendum on whether our society should have the right to kill those who commit particularly heinous crimes. Some believe that certain criminals deserve the death penalty. And, few will disagree. A Gallup poll shows that around 60% of Americans support the death penalty for a murder conviction with the predominant justification being “an eye for an eye.”

However, the issue is more nuanced. While the death penalty does satiate our primal desire for retribution, we must decide whether we are willing to accept a degree of collateral damage in this pursuit of justice. Consider the dissent from In re Troy Anthony Davis, 557 U.S. ___ (2009), in which Justice Scalia stated:

This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged “actual innocence” is constitutionally cognizable.

In just over a month, when we mail in our absentee ballots or vote at our local polling places, we can embrace or reject Justice Scalia’s vision. If a defendant is convicted and sentenced to death after a fair trial, should we still error on the side of caution and surrender capital punishment as a safeguard? We will have the opportunity to decide whether the benefit of punishing the guilty by way of the death penalty outweighs the cost of killing an innocent. For some, the potential chance of killing an innocent person may be a line that cannot be crossed. They may demand that the criminal justice system be perfect.

However, we can also view the death penalty within the context of our every day lives. For the past three decades, traffic accidents have claimed 30,000-40,000 victims each year in the United States. Certainly, a lot more innocent people die in traffic accidents than from wrongful executions, but we don’t halt traffic until we have an accident-free system in place. According to the Center for Justice & Democracy, the number of deaths from medical accidents each year range from 65,000 to 200,000. Again, we do not suspend the entire health care system until the practice of medicine is free of accidental deaths.

A lot of people die in accidents. It is for each of us to determine how we want justice administered in our system. Are the wrongfully convicted just collateral damage? Are mistakes just a fact of life? Are wrongful executions so far and few between that in the grand scheme of life, there are bigger priorities to tackle?

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criminal law

California Shark Fin Ban

California Fish and Game Code § 2021 set forth the California shark fin ban law. Under the law, “it shall be unlawful for any person to possess, sell, offer for sale, trade or distribute a shark fin.”

2021(e) exempts restaurants from the ban so that they can clear out their shark fin stock. However, this only applies to inventory in hand as of January 1, 2012, and the restaurant has only one year from that date to use down their shark fins.

So, I was a bit surprised to see shark fin on sale last month at a local supermarket.

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criminal law

18 USC 1751

Today, the FBI filed a criminal complaint with the U.S. District Court for the District of Columbia. The FBI was seeking a warrant to arrest Oscar Ramiro Ortega-Hernandez for violating 18 U.S.C. Section 1751(c). That section pertains to attempts to kill the President of the United States.

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criminal law

Bernard Madoff Got Lucky

The 150 year sentence that Judge Denny Chin imposed in the Bernard Madoff Ponzi scheme case seems a bit light. Considering that investor losses may range from $10 to $20 billion, Madoff was sentenced to 1 year of prison for every $66.7 million in losses at the low end of the estimates. Of course, no one, let alone a 71 year old man, can possibly serve the entirety of a 150 year sentence, so Madoff is getting a great deal in this instance.

In contrast, consider the terrible plight of Jeffrey Rush, who faked paralysis and proceeded to collect veterans and disability benefits. He was recently sentenced to 6 1/2 years in prison and ordered to pay about $300,000 in restitution. He ended up with 4.3% of Madoff’s prison sentence, but only caused 0.0015-0.003% of Madoff’s losses. If $66.7 million in losses is worth one year in prison, $300,000 in losses should only yield about a day and a half in prison.

As I said, Bernard Madoff got lucky. Really lucky.

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criminal law

Plaxico Burress

Even Second Amendment haters must be scratching their heads at this one. Two years in prison for second degree criminal possession of a weapon and second degree reckless endangerment. Wow! Is his offense of the same magnitude as that committed by Michael Vick? No. Regardless of the law, on a basic fairness level, how do you send a man to jail for two years for accidentally shooting himself with a concealed weapon, illegal or otherwise? Sure, if he shot someone else, I would understand. But he shot himself!! Is New York any safer with Plaxico Burress off the streets for two years? I doubt it. What a waste of taxpayer money.

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criminal law

Phillip Garrido and the Plain View Secret Yard

SFGate: 18 Years of Missed Chances to Find Kidnap Victim. This guy was definitely very elusive, very stealthy in what he was doing,” said Gordon Hinkle, spokesman for the state parole agency, which was charged with monitoring the 58-year-old sex offender for the last decade. “He had a fence, basically a false front where he had a secret yard.”

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He had a “secret” yard, providing that you don’t use the Satellite view on Google Maps. After this slip up, I think parole officers might be using Google Maps a bit more to make sure that no one else has a “secret” yard in plain view.