About San Diego Criminal Law Center

San Diego Criminal Law Center was created to provide useful information for anyone charged with a crime in San Diego and throughout the state of California. Author and attorney Vikas Bajaj has over 16 years of criminal defense experience. If you have been charged with a crime or under investigation, read our articles for useful info that may help you during this difficult time.

Reclassifying Antifa as a Criminal Gang in California

by Bajaj on September 13, 2017

There is no denying that the United States is not particularly unified at this point in history. Social media gives each and every American a personal platform to express their (sometimes polarizing) political views and thoughts. Social media also provides Americans with the opportunity to connect with other like-minded individuals. When groups of people connect to fight for a cause the platform can become more powerful. In this age of unrest, we have seen many (new and old) politically-charged groups emerge. These groups have, in some cases, essentially gone to war with one another. When these groups clash in public – each trying to champion opposite causes – things can get ugly. Berkeley, California was recently in the headlines after a group of self-proclaimed “anti-fascists” staged a forceful counter-protest at a conservative pro-Trump event.

This group, known as Antifa, was described by police as violent and “militia-like.” Antifa is relatively new and appears to have emerged after the Charlottesville, Virginia white supremacist rally that shook the country earlier this summer. Antifa has reportedly not been a particularly peaceful group. Rather, members carry weapons and protest in manners that are eerily reminiscent of those employed by the white supremacist groups that they stand against. Rather than staging powerful nonviolent protests, Antifa members employ violence and leave a path of destruction in their wake. These violent protests have caused California lawmakers to call for Antifa to be categorized as a criminal street gang.

California Penal Code Section 186.22(f) defines a “criminal street gang” as “any ongoing organization, association, or group of three or more persons” that has a “common name or common identifying sign or symbol” whose primary activity is a specified criminal act in which members individually or collectively engage and establish “a pattern of criminal gang activity.” Essentially, a criminal street gang is a group of at least three people who have adopted a name or symbol that routinely engage in criminal acts.

Classifying Antifa as a criminal street gang in California would significantly heighten the penalties associated with political riots. As it currently stands, members of Antifa who are arrested during a protest are subject to the laws and penalties that apply to all private citizens. They are not currently classified as a special group. So, a member of a counter-protest could be arrested and charged with inciting a riot, unlawful assembly, or refusal to disperse. These crimes are generally misdemeanors and carry relatively light criminal sentences. Most counter-protesters charged with one of these crimes would likely be sentenced to probation, community service, and/or be required to pay fines of up to $1,000.

If the Antifa group were to be classified as a criminal street gang, however, the members (if arrested) would be subject to aggravated sentencing because of their association with the group. At the very least, Antifa members charged under California Penal Code 186.22 PC could face up to three years in prison for their involvement in an Antifa counter-protest. The penalty, of course, would depend on the underlying criminal act. Penal Code 186.22 includes penalties for gang-related activity including assault with a deadly weapon, possessing or discharging a firearm, looting, mayhem, and criminal threats. Given the violent nature of Antifa counter-protests – and many other political protests staged by alt-right and white supremacist groups – it would not be difficult for prosecutors to charge group members with gang-related crimes.

As tensions grow between groups who stand on polar opposite sides of very politically charged issues, it will be interesting to see if any are formally classified as criminal street gangs. This classification could potentially act as a deterrent to engaging in violent protests. However, classifying one politically-related group as a criminal street gang, and not classifying another as the same could backfire. Alternatively, the California legislature may want to think about creating a new classification for these fairly recent and unique political protester groups. It may be wise to create a blanket classification that will deter violent protest, foster nonviolent protest, and apply equally to any political viewpoint. Either way, criminal defense attorneys in the area will likely face new challenges as their clients face aggravated charges for participating in political rallies. If you’re facing criminal charges, visit our guide on how to find a good criminal defense attorney in California.

Restraining Orders and Language Barriers in the Courtroom

by Bajaj on September 13, 2017

The importance of a translator should never be underestimated. In a state like California where more than 8 million cases are heard each year and more than 220 languages are spoken, court-appointed translators can be crucial to both criminal and civil legal proceedings. If defendants in California court proceedings are not able to understand the charges, allegations, or proceedings then they cannot effectively defend themselves. Court-appointed interpreters are employed to ensure that defendants – in both criminal and civil proceedings – understand what is going on. California has initiated a “language access plan” which aims to ensure that interpreters are available in all cases involving non-English speaking parties. The plan focuses on criminal and high-priority civil cases. This includes hearings where restraining orders are requested and/or issued.

Why does California think it is important to ensure that parties affected by a restraining order have access to an interpreter? The answer is likely two-fold. First, a restraining order is essentially useless if the subject of the order doesn’t know what they are legally prohibited from doing. Second, a restraining order can only be violated if the subject (a) has knowledge of the order, (b) has been afforded the opportunity to learn about the contents of the order, and (c) intentionally violates the terms. If a legal hearing is conducted entirely in English – when the subject of the restraining order only speaks and understands Spanish or Chinese – it may be difficult to hold that person criminally responsible for any violations of the restraining order.

How does a person obtain the required “knowledge” of a restraining order issued against them? California law says that a person will be considered to have knowledge if one of three things happens:

You are personally present at the court hearing where the restraining order is issued against you;
You are personally served by first-class mail with a copy of the restraining order; or
You are personally notified by a law enforcement officer.

Years ago, civil proceedings in California could be conducted without the assistance of a language interpreter. However, California law now requires that interpreters be made available in any legal proceeding. This new requirement helps to ensure that the “knowledge” components of a restraining order are satisfied. Before this requirement, a subject of a restraining order could potentially argue that he or she lacked the required knowledge because they were not given the option to have an interpreter present. This argument would be much more difficult today. Most courts will ask the potential subject of a restraining order – if they are present at the hearing – if they require the assistance of a language interpreter. So, if a person is present at the hearing where the restraining order is issued, he or she will be considered to have knowledge. Failure of communication that is based on language may no longer be an obstacle to having knowledge.

What happens if the subject of a restraining order is not present at the hearing in which they restraining order is issued? It may be easier to work around any language barriers that exist. This is because the order must be issued in writing and personally served to the subject. The order can easily be translated into a language known to be spoken by the subject of the order. If, for example, you only speak French the court can ensure that the order is properly and accurately translated into the French language before it is served. Alternatively, the court can make sure that prominent contact information for a translator is included in the service.

Knowledge of a restraining order – and its contents – is incredibly important. Without proof of knowledge, a victim of a restraining order may not have any legal recourse for violations of an order of protection. Punishments for restraining orders can only be imposed if a subject intentionally violates the terms of the order. Language barriers can pose a threat to satisfying these legal elements. As California imposes additional requirements for interpretive services in all of its courtrooms this threat is reduced.

California concedes that it will likely never have enough full-time interpreters to be present at each and every legal proceeding in the state. When more than 220 languages spoken and more than eight million cases are heard in a given year, it is nearly impossible to reach each and every proceeding. However, California will continue to focus its interpretive services to sensitive and critical legal proceedings. In those cases where California fails to provide access to an interpreter, you should not be held responsible for any inadvertent violations of a restraining order. Find a good criminal defense attorney if you need more assistance.

San Diego Man Arrested For Involvement in Drone Drug Smuggling Operation

by Bajaj on August 25, 2017

In early August, federal agents arrested a San Diego man for his involvement in a drug smuggling operation. What makes this case special? The man was a part of San Diego’s first confirmed case of using a drone to transport drugs across the border into the city. Technology has officially changed the way drug smuggling and trafficking operations work. Drugs can now be brought across the border into San Diego and other cities by an unmanned drone under the cover of darkness. This particular operation attempted to bring 13 pounds of heroin worth more than $46,000 to the streets of San Diego.

Will the use of this new technology reduce a person’s criminal liability for transporting illegal drugs? Probably not, at least for the time being. Federal and California state drug laws are written to be fairly broad. Broadly written laws allow prosecutors to charge criminal offenses for a wide range of behaviors and actions. In this case, the San Diego drone drug smuggler was arrested and charged with the federal crime of Importing a Controlled Substance. The man could also face California state criminal charges. If he were charged with a crime in California it would likely be for Sale or Transport of a Controlled Substance.

Importing a Controlled Substance, defined in United States Code Section 952, makes it a crime to import any controlled substance (as listed in the statute) into the United States for unlawful purposes. Heroin is explicitly listed as one of the prohibited controlled substances. At first glance, it may seem as though “import” is a vague term. Most laws define the terms that are used, and this law is no different. Import, for the purposes of this law, means to bring in or introduce illegal drugs into the United States. The man in the San Diego drone smuggling case retrieved 13 pounds of heroin from a drone that had flown across the border. He then moved those drugs to a different location so that they could be picked up by another party. Even though he did not physically move the drugs across the border himself he did assist in the act. Removing the drugs from the drone is probably enough to establish that he “introduced” drugs into the country in violation of the law.

Sale or Transport of a Controlled Substance, defined in California Health & Safety Code Section 11352, makes it a crime to sell, furnish, administer, transport, or import certain illegal drugs – including heroin – into the state of California with the intent to sell them (or give them away). The broadly written statute allows prosecutors to charge this crime for a wide range of behaviors related to moving illegal drugs. A conviction under the California law does not require that the drugs cross a border. Instead, the California law criminalizes the movement of illegal drugs from one location to another. When the San Diego man moved the heroin from the drone to another location to pass them off to another person, he violated the law. Prosecutors will have to prove that he intended to sell the drugs, give them away, or make a profit by handing them off to the next person in the smuggling operation.

California and federal drug laws are written broadly so that they can be applicable to a wide range of criminal behaviors. For the time being, these laws should be able to keep up with changes in technology. However, it will be important to understand when changes in the law may limit criminal liability because of technology. Prosecutors must establish that a person charged with a crime is guilty of all of the crime’s essential elements. Technology could soon make it unnecessary for individuals to engage in certain behaviors that are currently considered essential elements. In those situations, an experienced California criminal defense attorney will jump at the chance to argue that a prosecutor cannot make his or her case.

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