http://www.mcdowelldefense.com/blog/rss/feedsOur law office understands that when people hire an attorney, they are often experiencing very stressful situations. These people need someone who cares about them. McDowell Defense makes sure our clients not only receive high-quality legal services, but also the support and resources they deserve. For many years, McDowell Defense has beeWed, 29 Apr 2026 04:21:51 -0700http://www.mcdowelldefense.com/blog/post/the-trouble-with-the-calgangs-databasehttp://www.mcdowelldefense.com/blog/post/the-trouble-with-the-calgangs-databaseAs any Criminal Defense Attorney will tell you, being designated as a gang member can have devastating consequences, both in and out of court. And once designated and labeled a gang member, it is almost impossible to get your name removed from the CalGang’s System database. The CalGang System, for those who are not familiar with it, is a statewide database, locally maintained by several different law enforcement agencies, where information on suspected gang members is stored. While there are specific criteria for inclusion in the database, those criteria are extremely subjective and often not followed. The system is also supposed to be limited to law enforcement on a “need to know basis,” yet those in charge of maintaining the system routinely leak names and information.Why does it matter. If a person is characterized as a gang member and if charged with a crime, it could mean an additional 10-years to their sentence. This 10-year enhancement is a powerful tool to get people to accept a plea bargain even if they didn’t commit the crime, just to avoid an excessively long sentence. In addition, having your name in the system also has ramifications outside the courtroom. It can affect a person’s access to education, employment, public benefits, and housing opportunities, if it is disclosed the person’s name is in the system.The legislation that created CalGangs has very specific criteria that are supposed to be met before someone’s name can be placed is the system. However, the criteria are so subjective that even I, as an attorney, could find myself in the system should someone in law enforcement want to target me. How you ask? I’ll explain, but first a bit of necessary information.According to CalGang’s Policies and Procedures, before a person’s name is entered into the system, any two of the following criteria must be met:The person self-admitted to being a gang memberThe person was arrested with a known gang memberThe person was identified by a reliable informantThe person was identified by an untested informantThe person was seen affiliating with documented gang membersThe person was seen displaying gang symbols and/or hand signsThe person was seen frequently in gang areasThe person was seen wearing gang dressThe person is known to have gang tattoosFirst, let’s discuss, “self-admitted.” In my experience, this is claimed by law enforcement in the majority of alleged gang cases. In fact, I don’t think I have ever had a case were the District Attorney has alleged gang involvement, where some law enforcement officer hasn’t claimed that when the person was arrested they self-admitted to them. While some gang members do brag about being in the gang, most do not because they know the consequences. If a person is convicted of a crime, and a gang enhancement is found true by the jury, under California Penal Code 186.2, they are sentenced to ten years in addition to the sentence for the underlying offense. Many times, the ten-year enhancement is two or three times the sentence for the actual crime.At trial, law enforcement officers constantly come into court and tell the jury the person self-admitted. However, not once in my experience has that self-admission been captured on tape, or written out with the person’s signature affixed. During cross-examination, I ask the officer in every gang case I do if the admission is recorded in some fashion, and the answer is always, “No, we didn’t record it.”Yet, these same officers record their interview with the suspect, or write down what was allegedly said and then ask the suspect to sign it - conveniently leaving out the gang member question, of course. Officers know defense attorneys always ask about some form of proof that the person actually self-admitted, yet they still refuse to produce any evidence when it would be so easy to turn on their tape recorder, or if the person says it before the recorder is turned on, asking them to repeat their admission once the officer is recording. In addition, to date, not one tape from an officer’s body cam, has been introduced to prove someone self-admitted.Second, the remainder of the criteria are so arbitrary that they can be used against anyone. As I said earlier in this article, it is possible that even I could find my name in the CalGang’s system. Now in my line of work I am known to affiliate with documented gang members; have been seen frequently in gang areas; depending on the day, I might have a baseball cap on which is often claimed to be gang dress by law enforcement; and again, depending on where I am, the color of my shirt might be consider by law enforcement to be associated with a gang. That’s four of the criteria I might satisfy. And of course, if someone had it in for me, they could just tell an officer that they know I’m a gang member, and even if they are unknow to police, their accusation would meet a fifth criterion in my case - the untested informant.While my potential inclusion in the system might be a humorous take on the criteria, for many, not involved in gang life, these same criteria might get them entered into the database unjustly. As one of my past client’s case can illustrate, it’s not hard to get into the system. He was a straight A college student, was a frequent church goer, was never in any trouble, didn’t do drugs or party. Yet, he was in the system. Why? Because he was spotted by law enforcement hanging with known gang members – his uncle who had been visiting the family home, which happened to be in gang territory. Of course, since he lived at the family home, the officer who testified claimed he frequented gang territory. That same officer also claimed that he had seen him wearing a baseball cap from a team known to be worn by the gang. Thus, he testified my client was wearing gang clothing and sporting gang symbols. All innocent circumstances, yet my client’s name was entered into the CalGang’s system by the gang officer. This officer had had no other contact with my client. Nor did any other law enforcement officer.My client only found out his name was in the system when he was mistakenly arrested. Seems he fit the description of someone who had just committed an attempted burglary. The prosecutor decided to add a gang enhancement to the underlying charges since my client’s name was in the CalGang system. Prosecutor’s do this routinely these days in order to use it as a bargaining chip when they have a weak case, like in my client’s case. The prosecutor then offered my client a deal of 3 years on the underlying charges and, if my client accepted, he would drop the gang enhancement which, if convicted, could add ten years to the sentence. My client decided to take the case to trial. With the help of a gang expert we were able to show the jury that my client was not a member of a gang and didn’t commit the crime. It was later discovered it was a case of mistaken identity and the real culprit was arrested, tried, and convicted. Unfortunately, many people take a plea offer, even if they didn’t do the crime. They get scared by the possibility of receiving an additional 10-years in jail if things don’t go well at trial. And it’s this fear that prosecutors prey on.Yet, even thought my client was cleared of all charges, he has not been able to get his name removed from the database. The process is long, slow, and difficult. Basically, the person must prove they do not belong on the list rather than law enforcement having to prove they do belong in the system. But challenging the system is about to get a little easier, thanks to a bill by Assemblywoman Shirley Weber (D-San Diego), that goes into effect on January 1, 2018. That bill gives people, whose name is in the database, a right to appeal their gang designations and law enforcement will have to justify the person’s inclusion.These changes were spurred on by an audit of the CalGang System in 2015 which showed the system contained questionable information and that some of that information was being misused. The CalGang Criminal Intelligence System Report, https://www.auditor.ca.gov/pdfs/reports/2015-130.pdf , found among other irregularities, that some people who were in the system were infants or were infants when their names were added to the system years ago. The audit also found unverifiable and outdated information.The audit of the system found that the list of names was also being used outside of law enforcement. Some employers and parts of the military were using the information contained in CalGangs to vet applicants. A use specifically banned by CalGangs own policies and procedures.The audit also found that persons who should have been purged from the system years ago were still included in the system. According to CalGang’s Policies and Procedures, all persons whose records have not been modified by additions of new information or a new conviction for five years are to be purged. Many names that fit this criterion were found. Yet, these people still had a very difficult time getting their names out of the databases.Also, with such subjective criteria, it is also very easy to manipulate the system to keep people in the database, should a gang officer decide to do so. All that is needed is the officer to fill out an Field Identification (FI) Card. These are cards officers fill out when they make contact with anyone in the community to document that contact. This contact may be as innocent as speaking with a local businessperson, or a local resident. But they are also used to gather information on alleged gang members. All an officer has to do is stop someone on their way home from school in a gang area, and then document that on an FI card. Or, as another of my client’s FI cards revealed, he was listed as affiliating with known gang members because he occasional played basketball at the neighborhood gym.All it takes to keep someone on the list is for an officer to fill out an FI card and have it entered into the CalGangs system. There is no verification process. No chance for the person to contest it. In fact, most of the time, a person is not notified that information concerning them has been entered into the system, even though there are clear and specific policies and procedures for notifying citizens if their name has been entered into the CalGang system.Lately, more and more people outside the legal community are finally realizing that the CalGang System has some serious flaws and have proposed changes. While these changes and safeguards have been a long time coming, hopefully progress will continue. Assemblywoman Weber’s bill is a start, but much more needs to be done.Fri, 04 Aug 2017 17:26:00 -0700http://www.mcdowelldefense.com/blog/post/immigration-status-bill-signed-by-governor-brownhttp://www.mcdowelldefense.com/blog/post/immigration-status-bill-signed-by-governor-brown While it seems like common sense that a person’s immigration status should not play a part in a civil lawsuit, last Monday, Governor Jerry Brown signed into law Assembly Bill 1690, written by Assemblyman Mark Stone (D – Scotts Valley). The bill will prohibit attorneys and administrative judges from inquiring into a person’s immigration status if they bring forth a state labor, employment, civil rights, or housing law. The bill’s purpose is to end the practice of using the fear of immigration status as a way to deter plaintiffs from pursuing claims that otherwise have merit. Supporters of the bill point to countless examples of employer’s using immigration status as a way to dissuade undocumented workers from filing labor and unemployment claims. This legislation, which was backed by the Consumer Attorneys of California (CALA), as well as immigration, labor, and employment attorneys’ groups, makes a plaintiff’s immigration status irrelevant and hopefully will encourage people with valid claims to come forward regardless of their immigration status.Start your post here...Fri, 04 Aug 2017 17:22:00 -0700http://www.mcdowelldefense.com/blog/post/california-changes-gun-lawshttp://www.mcdowelldefense.com/blog/post/california-changes-gun-lawsCurrently California law prohibits the possession of a firearm by those convicted of a felony and certain misdemeanors. However new legislation would extend those prohibitions to those with outstanding warrants for a felony or certain misdemeanors.The proposed provisions were amended not Assembly Bill 103 as one of many provision that deal with public safety, and are expected to be voted on by the Legislature as part of the upcoming budget.The Nation Rifle Association has weighted in stating that the budget should not be used to push through major policy changes because it bypasses the public hearing process. The NRA claims the new law would violate a person’s due process as warrants can be issued without notice or hearing.As we at McDowell Defense review the bill, we agreethe wording does potentially present due process issues. For example, if a warrant was issued for someone for certain a felony, the bill makes it a criminal offense for that person to possess a firearm. However, there is no provision requiring the person to first have been put on notice that a warrant was issued. Therefore, a person could be charged with the offense of possession of a firearm by a prohibited person without ever knowing s/he was prohibited leading to Constitutional challenges in the already overburdened courts.Sat, 01 Jul 2017 16:00:00 -0700http://www.mcdowelldefense.com/blog/post/after-voting-against-his-safe-ride-home-a-california-state-senators-act-of-irony-and-hypocrisy-ends-with-a-duihttp://www.mcdowelldefense.com/blog/post/after-voting-against-his-safe-ride-home-a-california-state-senators-act-of-irony-and-hypocrisy-ends-with-a-duiBy Lonnie L. McDowell, Esq. and Michael C. McDonald, J.D., McDowell DefenseIn the early morning hours of Friday, August 22, 2014, California State Senator Ben Hueso, (D) San Diego, was arrested for driving under the influence of alcohol just hours after voting in favor of a bill that places heavy restrictions on the popular ride-sharing services Uber and Lyft, according to dailycaller.com. The Daily Caller reported that the California Highway Patrol stopped Hueso after he drove the wrong way on a one-way street. His blood alcohol concentration was reportedly a 0.08, just above the legal limit.If you don’t already know, over the last couple of years, Uber and Lyft have gained a strong and rapidly growing customer base. These services offer extreme convenience, more options for a ride, cheaper fares and, best of all, increased safety. These “taxi alternatives” are app-based and use GPS tracking that allows a customer to request a ride with a tap on his/her smartphone. Once a customer requests a ride, the customer receives a text with a picture of the driver and the vehicle, as well as the driver’s ratings given by previous passengers. And to ensure the passengers' safety, the driver inputs the passenger’s destination into the cars GPS system and the ride is tracked via the company’s logs.So why would California State Senators oppose these services? The only logical explanation is money. To say that taxi companies strongly oppose the ride-sharing services would be an understatement. Taxi companies complain they have to pay for licenses and insurance to legally operate. Because Uber and Lyft are classified as “peer-to-peer transportation,” they avoid these fees, allowing Uber and Lyft to operate under their existing business model and cheaper rates than cabs. Not to mention much better service.But Hueso claims Uber and Lyft should be heavily regulated to ensure the public’s safety. Assembly Bill 612, which passed 21 to 11, mandates that Uber and Lyft drivers have no criminal record and requires the drivers pass a background check and drug test before they can drive. What he fails to acknowledge is that all Uber and Lyft drivers already have to pass a background check before they are allowed to drive for either company. Each service requires a clean driving record, no convictions of violent crimes, sexual offenses, and they must all have current valid insurance. Drivers also cannot have any DUI’s - period. Currently it is possible to drive a taxi, even if you have had a DUI. In fact, the San Francisco Municipal Transportation System, the agency who licenses taxis in S.F., only refuses licenses to drivers who have had two DUI’s in a five year period.The benefits of the ride-sharing services goes beyond the convenience and even safety of just the customers that use them. These services benefit everyone on the road. Since Uber and Lyft have been operating in California, the DUI arrest rate has gone down. The Washington Post reported that DUI rates have dropped in cities in which app-based car services operate all across the country, as well as here in California. Evidence shows, people are more likely to call Uber or Lyft, instead of a taxi, when they go out drinking. The convenience and lower rates are truly making the roads safer for all.So again, why would Hueso vote against such a potential life-saving service? Could it be because Senator Hueso has a dog in this fight? See, the Senator’s brothers, Alfredo and Antonio Hueso, own a taxi company based in San Diego. By placing heavy regulation on Uber and Lyft in an attempt to stunt their rapid growth, Senator Hueso is taking care of the family, not the citizens he was elected to serve.Of course, Senator Hueso apologized for his actions, stating, “I am truly and profoundly sorry for the unacceptable poor personal judgment which I demonstrated last night.” Was he talking about his decision to drive or the way he voted?He also stated, “As someone who cares deeply about the public safety, I sincerely apologize to my family, my constituents and my colleagues in the Senate for breaching the trust they’ve all placed in me. I accept complete personal responsibility for my actions and punishments that ultimately come my way as a result of this incident. I will also engage in immediate, corrective actions to ensure this kind of personal conduct is never repeated.”Senator Hueso certainly did not demonstrate that he cares deeply about the public safety when he voted against the very services that have dropped the DUI rates in the cities in which they operate then chose to drive under the influence. We cannot know what his “immediate, corrective actions” will be, but because of the way he and other like-minded California State Senators voted, it may not be much longer that Uber and Lyft can operate and make our roads safer for everyone. One thing we do know, however, is Senator Hueso now cannot get a job driving for Uber or Lyft. With his current DUI, he’ll have to be satisfied driving a taxi for his brothers when he leaves politics.Fri, 26 May 2017 10:30:00 -0700http://www.mcdowelldefense.com/blog/post/the-ray-rice-debacle-and-how-janays-support-paints-a-common-picture-of-domestic-violence-victimshttp://www.mcdowelldefense.com/blog/post/the-ray-rice-debacle-and-how-janays-support-paints-a-common-picture-of-domestic-violence-victimsBy Lonnie L. McDowell, Esq. and Michael C. McDonald, J.D., McDowell DefenseOn Tuesday, September 9, 2014, the day after the violent and graphic video of Ray Rice punching his then-fiancée in the face, knocking her out in an Atlantic City casino elevator was released to the public view, Janay Rice has publicly and adamantly defended the man who hit her. Mrs. Rice has condemned the NFL for suspending Ray and the Baltimore Ravens for releasing him, as well as the media for invading the couple’s privacy. She posted to Instagram on September 9:I woke up this morning feeling like I had a horrible nightmare, feeling like I’m mourning the death of my closest friend. But to have to accept the fact that it’s reality is a nightmare in itself. No one knows the pain that the media & unwanted options from the public has caused my family. To make us relive a moment in our lives that we regret every day is a horrible thing. To take something away from the man I love that he has worked his ass off for all his life just to gain ratings is horrific.THIS IS OUR LIFE! What don’t you all get. If your intentions were to hurt us, embarrass us, make us feel alone, take all happiness away, you’ve succeeded on so many levels. Just know we will continue to grow & show the world what real love is! Ravensnation we love you!"Back on May 23, 2014, Ray and Janay Rice held an awkward press conference after the first video of the Atlantic City incident was released, which showed Ray Rice dragging an unconscious Janay out of the casino elevator. At the press conference, Janay showed similar support as she did Tuesday, and even attempted to put blame on herself, stating, “I do deeply regret the role that I played in the incident that night, but I can say that I am happy that we continued to work through it together.”After release of the video Monday revealed what actually happened inside the elevator—Ray Rice punching Janay and knocking her unconscious—the question that most people likely have is, “Why in the world would she support and defend the man that did that to her?”While it is impossible to know just how Janay Rice is truly feeling or thinking about this entire situation, and in turn improper to speculate, the fact is that this is common behavior of the victims in domestic violence cases. Domestic violence victims very often will defend the person who abused them. Even the victims that report the violence to police and set the criminal charges into motion will often retract their statements and claim they made it up and their spouses or partners never actually hit them. They will stand up in defense of the person who beat them, even in brutal cases.The reasons victims of domestic violence sometimes support and defend their abusers vary from person to person. Sometimes the victims are scared for their personal safety or the safety of their children. They worry that if they go forward with charges, when the abuser gets out of jail, the abuse will be even worse. Sometimes the victims are repeat victims who have grown used to the violence and do not feel like they are strong enough to leave their abusive significant others. In other cases, the physiological abuse has made the victims believe they actually deserve the abuse because they have in some way failed their abusers. But the most cited reason is financial.Many times the victims are dependent on the abuser for their and their children’s support. The abuser many times is the breadwinner. After reporting the abuse, the victims begin to worry they will lose everything. Who is going to pay the rent and groceries if the abuser is in jail? Where will they go? Victims feel they have no choice but to put up with the abuse and hope it is truly an isolated incident that their significant others regret and will never repeat.Evidence that many victims of domestic abuse stay with their abusive spouses or partners was prevalent in the wake of Janay Rice’s public support of her husband. Dominating Twitter newsfeeds were posts with the hashtag #WhyIStayed. Under this label, countless victims of domestic violence tweeted about why they stayed with the person who domestically abused them. In turn, a second hashtag #WhyILeft popped up with domestic violence victims explaining why they finally left their abusers.This conversation Janay Rice inspired sparked a sociological examination of a fact that prosecutors all over the United States already knew: victims of domestic violence often support their abusers. Because of this, domestic violence laws in New Jersey, California, and most U.S. states allow the prosecutors of domestic violence cases to move forward with the charges even when the victims retract their stories and refuse to cooperate with the prosecution.The National Statistics are sobering. According to the Los Angeles Domestic Violence Project:• 1.5 million Women in the United States are assaulted by their intimate partners every year.• One in three women will experience sexual violence in her lifetime.• Nearly 30% of all female homicide victims were known to have been killed by their significant others.• Domestic Violence causes more injury to adult women than cancers, heart attacks, or strokes.Being in the public spotlight makes Ray and Janay Rice’s situation no different, just more publicized. Janay Rice’s support of her husband, whatever her reasons, provides a great example of these supportive domestic violence victims. Her support of her husband does not remove the prosecution’s ability to pursue domestic violence charges against the fallen Raven star. The video evidence that has been broadcast to the entire world provides the prosecution with all they need to convict Ray Rice on domestic violence charges. It was shocking and horrific, and it would leave no reasonable doubt to Ray Rice’s guilt if the prosecution had not already granted him diversion.Fri, 26 May 2017 10:27:00 -0700http://www.mcdowelldefense.com/blog/post/victory-for-4th-amendment-protections-the-supreme-court-says-officers-must-get-a-search-warrant-before-they-can-search-your-cellphonehttp://www.mcdowelldefense.com/blog/post/victory-for-4th-amendment-protections-the-supreme-court-says-officers-must-get-a-search-warrant-before-they-can-search-your-cellphoneBy Lonnie L. McDowell, Esq., McDowell DefenseIn a stunning defeat for prosecutors, the U.S. Supreme Court on Wednesday ruled that police need a search warrant in order to search the contents of your smartphone. The ruling comes as a result of the California case of gang member David Riley’s appeal of a decision of the California Court of Appeal. In that case, the court analogized that information on a smartphone was akin to information on a piece of paper which police could pull out of a suspect’s pocket and legally read. The United States Supreme Court disagreed and ruled that law enforcement officers needed to first obtain a search warrant before searching a cellphone’s contents.This ruling is great news as it shows a moderation of the Supreme Court. In recent years, the Supreme Court has allowed exception after exception to the 4th amendment, slowly eroding its protection. The Riley ruling’s impact, however, will be divided.For everyday Americans, the ruling means that if stopped during a traffic stop, or for routine questioning, the police will not be able to search their phones. Further, if they don’t have probable cause to believe there is evidence of a crime on your phone, they will not be able to get a judge to issue a warrant.Probable cause is established by facts and circumstances within an officer’s knowledge sufficient to warrant a reasonable belief that a crime has been, or is being, committed. It is not necessary that the officer possess knowledge of facts sufficient to establish guilt. In other words, just barely more than just a suspicion is required.Unfortunately for Mr. Ryley and other gang members, drug dealers, etc., the new ruling regarding cellphone searches will probably provide little protection. The probable cause necessary for police to obtain a warrant to search someone’s phone is a very low standard. While officers will not be able to stop someone walking down the street on pretext and search his/her phone, it won’t take much for them to obtain a warrant to search a suspected criminal’s phone.In the case of known gang members or drug dealers, officers probably already know the individuals. They know their habits, customs, and practices. They know how they operate. Many gang members or drug dealers are on probation or parole and are immediately subject to search as one of the conditions of their probation/parole.Law enforcement and the courts have also labeled cellphones as an instrument used in furtherance of the gang’s activities or drug sales. Therefore, almost any time a known gang member or dealer is stopped and searched, the mere fact that the individual is carrying a cellphone may give officers probable cause to obtain a warrantWhile some officers may have to work a bit harder in order to find legitimate probable cause in order to obtain a warrant, for officers in most cases, getting a warrant before searching a cellphone will be little more than a formality.Fri, 26 May 2017 10:27:00 -0700http://www.mcdowelldefense.com/blog/post/the-samurai-defense--red-power-ranger-may-face-no-charges-in-stabbing-death-of-roommatehttp://www.mcdowelldefense.com/blog/post/the-samurai-defense--red-power-ranger-may-face-no-charges-in-stabbing-death-of-roommateBy Michael C. McDonald, J.D. and Lonnie L. McDowell, Esq. – McDowell DefenseAs reported by NBCLosAngeles.com, Ricardo Medina, Jr., 36, who starred in Power Rangers Samurai and as the red Power Ranger in Power Rangers Wild Force will not face charges after stabbing his roommate to death with, what else, a Samurai sword. (The reports don’t actually indicate is was a Samurai sword, but it was a sword held by a Samurai, right? No?)It is not every day that we hear of death by way of a medieval weapon, so it is important that we break this down with a full analysis as to what happened and why this Samurai Ranger apparently broke no code, or law.What Happened:Reports from NBCLosAngeles.com as well as TMZ indicate that a fight broke out between Medina and his roommate, Joshua Sutter, also 36, at their home in Palmdale, CA. Besides not explaining why two 36-year-olds were still living together as roommates, the reports also do not indicate what the fight was about or any details about the physicality of the conflict. The reports do indicate, however, that Medina retreated to his bedroom during the fight, where he stayed with his girlfriend and door closed until Sutter forced his way into the bedroom. That is when Medina allegedly stabbed Sutter once in the abdomen with his sword.Legal Possibilities for the Killing:Under the law, any killing of one human by another human is a homicide. The law treats homicide in one of five ways: First Degree Murder, Second Degree Murder, Voluntary Manslaughter, Involuntary Manslaughter, or Justifiable Homicide.First Degree Murder:In order to find a defendant guilty of First Degree Murder, there must be proof that the defendant had specific intent to kill—that the killing was deliberate and premeditated. This means the prosecution must prove the defendant killed the victim in a calm, cool manner, and had time to reflect on the idea of killing the victim, even if only for an instant.In this case, as in many cases in which a homicide victim dies during a mutual struggle (a fight), proving malice can be very difficult. When both the victim and defendant were physically attacking each other, it is difficult to find some evidence that the defendant premeditated the kill—that he had the actual intent to kill the victim then successfully acted on that intent after reflection. Although the reports are sparse on the details, the fact that Sutter forced his way into Medina’s room after Medina had retreated indicates Medina had no such intent or period of reflection.Second Degree Murder:Second Degree Murder is any murder that is not First Degree Murder, meaning any murder committed without premeditation and deliberation. It still requires malice aforethought—either an intent to kill, intent to inflict great bodily injury, or at least a reckless disregard for an unjustifiably high risk to human life.In this case of the Red Ranger and his sword, it does not seem difficult to find the required malice aforethought. When someone stabs another person in the abdomen with a sword, it seems pretty clear he had either the intent to kill, an intent to inflict great bodily injury, or at very least a reckless disregard for an unjustifiably high risk to human life. Even with an indication of malice, however, there are factors that can make what would otherwise be Second Degree Murder a justifiable homicide, such as a killing in self-defense.Voluntary Manslaughter:Volutary Manslaughter is a homicide that would otherwise be a murder but for an adequate provocation. Such provocation to reduce murder to manslaughter is such that would arouse a sudden and intense passion in an ordinary person, that did in fact arouse such passion in the defendant, without sufficient time for the defendant to cool off, and the defendant in fact did not cool off between the provocation and the killing. One example of such provocation for Voluntary Manslaughter includes being threatened with deadly force.California also recognizes another way what would otherwise be murder can be reduced to Voluntary Manslaughter: Imperfect Self-Defense. Imperfect Self-Defense occurs when a defendant commits a homicide with a genuine, but unreasonable, belief that it is necessary to kill the other person to protect himself against deadly force from that person.The Red Power Ranger reports do not indicate whether Sutter had a weapon when he forced his way into Medina’s bedroom or if there was any other legitimate threat of deadly force. The facts seem to indicate, however, that unless Sutter did pose a legitimate threat to Medina’s life, Medina could at least be found to have committed Voluntary Manslaughter. Based on the fact that Medina faces no charges, however, police must have found indications that Sutter did pose a reasonable threat to at least inflict great bodily harm on Medina, justifying the sword stabbing.Involuntary Manslaughter:Involuntary Manslaughter is a homicide committed through criminal negligence. Negligence is not a measure of intent—one cannot intend to be negligent. What it amounts to is an inexcusable act of carelessness that results in the death of another. The facts of this case do not indicate Medina could be found guilty of homicide through negligence.Justifiable Homicide:And finally we arrive at what the authorities apparently believe happened when Red Ranger used his sword: a Justifiable Homicide. A homicide is found to be justifiable when done in an act of self-defense or defense of another. The self-defense or defense of another, however, must be legitimate for the homicide to be justifiable. This means that the person who commits the homicide must have a reasonable belief that the use of deadly force is necessary to protect himself or another from deadly force or great bodily injury.It would be a lot easier in this case to determine whether or not Medina’s stabbing of his roommate was a legitimate act of self-defense with more details than the reports provide. There are indications, however, that indicate the stabbing just may have been a legitimate act of self-defense. Medina retreated during the fight—he went inside his room, door shut, with his girlfriend, and Sutter forced his way inside the room, apparently to continue the fight. Someone forcing his way into a bedroom, an area of apparent safety, for the purpose of a physical attack certainly justifies some form of physical self-defense. As long as the facts support a reasonable belief by Medina that deadly force was necessary to protect himself or his girlfriend from death or great bodily injury, he was within his rights to protect himself and his girlfriend with the deadly force he used when he stabbed Sutter in the abdomen.Furthermore, the reports indicate that Medina called the police after the stabbing and waited for them to arrive—not the actions you would expect of someone who just committed a murder.Apparently Medina’s training for his role as Power Ranger Samurai paid off: he knows how and when to use his sword.Fri, 26 May 2017 10:26:00 -0700http://www.mcdowelldefense.com/blog/post/sb-289s-zero-tolerance-is-the-wrong-prescription-for-californiahttp://www.mcdowelldefense.com/blog/post/sb-289s-zero-tolerance-is-the-wrong-prescription-for-californiaBy Michael C. McDonald, J.D. and Lonnie L. McDowell, Esq. - McDowell DefenseA former Miami Hurricanes Bad Boy and Tampa Bay Buccaneers Hall of Famer (and Dancing With the Stars alum) known for eating quarterbacks for breakfast now finds himself in trouble with the law…again. As reported by TMZ, current NFL Network commentator Warren Sapp was arrested Monday morning at a Downtown Phoenix hotel on charges of solicitation and assault. Sapp was in Phoenix covering the Super Bowl for the NFL Network.Reports indicate that Sapp brought two women working as “escorts” up to his hotel room where an argument ensued over money. The women say the argument turned physical, spilling out into the hallway. The women reportedly had injuries consistent with a struggle.TMZ’s report indicates that Sapp admitted to soliciting the women for prostitution, but he denied any assault of the women.It seems that Sapp is already facing consequences for his acts in the desert. As reported by SI.com, Warren Sapp’s contract with the NFL network was terminated Monday following his arrest. With all the bad press the NFL has received this season regarding domestic violence, it is no surprise the league, who owns the network, clearly has little tolerance for criminal acts, even if only alleged. It is especially no surprise the league would have little tolerance for criminal acts involving alleged violence against women.Once Sapp was arrested, the writing was pretty much on the wall as far as his career with the NFL Network went, which is too bad considering how entertaining he is (was) as a TV analyst. Warren, however, did himself no favors legally when he admitted to solicitation.As indicated above, this is not Sapp’s first run-in with the law. As reported by TMZ, Sapp was arrested in 2010 for domestic battery, and again in 2014 for another alleged domestic battery. The 2010 charges were eventually dropped. Additionally, reports say that while at the University of Miami, Sapp failed seven drug tests—six for marijuana and one for cocaine.Although Sapp is arguably the greatest defensive tackle in NFL history, he doesn’t seem to be the smartest. With all his experience with the law and other bodies of authority, you would think he would know to keep his mouth shut; you would think he would know to USE HIS RIGHT TO REMAIN SILENT. However, Sapp apparently had not learned this rule of thumb. He admitted to soliciting prostitutes, destroying the possible defense strategy that Sapp had no knowledge the women were prostitutes. Furthermore, this admission also hurts his claim that he did not commit an assault. The admission makes it more likely and more believable that there was in fact an argument over payment that turned physical.Upon being arrested, Sapp was destined to have an uphill legal battle. By not invoking the most powerful right a person accused of a crime has, the Right to Remain Silent, Sapp has built a 50 foot wall on the hill he must climb, and he probably doesn’t have the right tools to get over it.Fri, 26 May 2017 10:25:00 -0700