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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.


Restraining Orders and Language Barriers in the Courtroom

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:

  1. You are personally present at the court hearing where the restraining order is issued against you;
  2. You are personally served by first-class mail with a copy of the restraining order; or
  3. 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.

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.

Last week, an off-duty police deputy and an innocent bystander were shot by an unknown assailant near Petco Park in downtown San Diego. The assailant reportedly approached the deputy, who was with a group of other off-duty law enforcement officers, while displaying a firearm. A confrontation between the two men turned into a struggle. The firearm was discharged four times – hitting the off-duty deputy in the shoulder three times and an innocent bystander in the arm once. None of the injuries were life-threatening. Police have not released information about why the assailant to approached the off-duty deputy or if the two men knew each other. The gunman remains at-large and the shooting is under investigation.

Regardless of the reasons for the confrontation and struggle, the assailant will face criminal consequences for shooting an off-duty deputy. The severity of the charges he faces, however, may depend on those reasons. Given the details provided in the news report, the assailant could potentially be charged with assault with a deadly weapon, attempted robbery, or even attempted murder.

In California, it is a crime to use a firearm to commit an assault or battery. An assault is the attempt and present ability to commit a violent act against another person using force that is likely to cause great bodily injury to another person. When a firearm is used to commit that assault, the charges may be aggravated to assault with a deadly weapon. Pointing and/or discharging a gun at another person is generally enough to aggravate a charge of simple assault. While the victim does not have to be harmed for an assault to occur, the fact that the victim does suffer great bodily harm can be used as evidence of the crime.

Assault with a deadly weapon is a wobbler in California, which means that the crime can be charged as a misdemeanor or a felony. If the San Diego gunman is charged with assault with a firearm the severity of the charge will depend on the circumstances of the crime and his criminal history. Misdemeanor assault with a deadly weapon is punishable by summary probation, 6 months to 1 year in jail, and/or fines of up to $1,000. Felony assault with a deadly weapon is punishable by formal probation, 2-4 years in California state prison, and/or fines of up to $10,000.

Crimes committed against law enforcement officers who are engaged in their official duties can face more severe penalties. However, since the deputy was off-duty at the time of the shooting it is unlikely that the gunman in this instance will face aggravated charges for assaulting a peace officer. A conviction will, however, count as a “strike” for the purposes of California’s Three Strikes Law.

It is also a crime to commit a robbery or attempt to commit a robbery. The details about why the gunman approached the off-duty deputy are unclear. However, the fact that the altercation took place around 1 o’clock in the morning may indicate that the gunman intended to rob the off-duty deputy. In California, a robbery occurs when you take the personal property of another person through the use of force or threat of force. The charge is aggravated if a firearm is used. If the gunman in this case was unsuccessful in taking any of the deputy’s property he could still face charges for attempted armed robbery and/or assault with a firearm.

When he is caught, the gunman in the late-night Petco Park shooting will face criminal consequences for his actions. The severity of those consequences, however, will depend on why he approached the off-duty deputy and what he intended to do. If the gunman had, at any point, had the intent to kill the deputy during the struggle, he could also face charges of attempted murder. Regardless of which crimes he is eventually charged, it is unlikely that he will escape this situation without spending a few years behind bars. It will be important for him to hire a skilled San Diego criminal defense attorney to ensure that his legal rights are protected and that he is given the opportunity to defend himself against any charges he may face.