Blog Jay Leiderman Law


Like it or not, gang membership is constitutionally protected activity.  (Dawson v. Delaware (1992) 503 U.S.  159, 161; see also City of Chicago v. Morales (1998) 527 U.S. 41.)  Admittedly, Penal Code § 186.22, which closely parallels § 182.5, has been upheld against a variety of constitutional challenges, including claims based upon the First Amendment and the Due Process Clause of the Fourteenth Amendment. (See People v. Castenada (2000) 23 Cal.4th 743, 752; People v. Gardeley (1996) 14 Cal.4th 605, 622-633; People v. Green, 227 Cal.App.3d 692; People v. Gamez (1991) 235 Cal.App.3d 957, 969-976; In re Alberto R. (1991) 235 CA3d 1309, 1323-1324.)  The courts are almost dismissive of the constitutional challenges because, in their opinion, the “terms of the statute” ensure that “mere membership” in a criminal street gang will not be punished and that groups or associations whose primary purpose is not the commission of crime will be excluded from coverage.  (See People v. Gamez, supra, Cal.App.3d at 970-971, 973-974; In re Alberto R., supra, 235 Cal.App.3d at 1324.)  “It is not the association with other individuals alone which section 186.22 addresses, but the association with others for the purpose of promoting, furthering or assisting them in the commission of crime.”   (People v. Gamez (1991) 235 Cal.App.3d 957, 971.)

Penal Code § 182.5 is different from § 186.22 in one very crucial aspect: it imputes criminal liability for mere membership in a criminal street gang.  § 182.5 criminalizes “benefit[ting] from” gang felonies, without any personal participation or knowledge of the crimes whatsoever.





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It is well-settled that “each member of a conspiracy is criminally responsible for the acts of fellow conspirators committed in furtherance of, and which follow as a natural and probable consequence of, the conspiracy, even though such acts were not intended by the conspirators as a part of their common unlawful design.”  (People v. Zielesch (2009) 179 Cal.App.4th 731, 739 [citing People v. Medina (2009) 46 Cal.4th 913, 920])  This venerable principle is firmly established.  (People v. Kauffman (1907) 152 Cal. 331.)  Such a criminal act is a “natural and probable consequence” of the conspiracy if the unplanned crime was “reasonably foreseeable.”  (Zielesch, supra, 179 Cal.App.4th at p. 739.)  This is typically a question of fact for a jury.  (People v. Luparello (1986) 187 Cal.App.3d 410, 443.)   Two aspects of this case, however, require the court to dismiss Counts 30-33 with respect to Mora before they reach a jury.

First of all, counsel was unable to find a single case in which any court, state or federal, sustained a conviction for a subordinate conspiracy—as opposed to a substantive offense—premised solely on the “natural and probable consequences” doctrine.  Instead, the natural adn probable consequences doctrine has been applied exclusively to impose liability for substantive crimes committed by co-conspirators in the course of carrying out the conspiracy.  An expansion of the rule, allowing the People to charge independent conspiracies based purely on their assertion that these subordinate conspiracies were natural and probable consequences of the primary conspiracy, is wholly unsupported by case law.

Second, while the universe of reasonably foreseeable substantive offenses arising out of the primary conspiracy is admittedly large, it cannot possibly include the subordinate conspiracies charged.  It simply defies common sense to assert that a natural and probable consequence of the primary conspiracy (purportedly aimed at collecting taxes and selling drugs for the benefit of the Mexican Mafia) would be for the same actors—with the same aims—to enter in to a new, independent, separate conspiracy to commit a crime in furtherance of the primary conspiracy.  Such a claim is not just unreasonable, it is flatly illogical.

Alternatively phrased, it appears the People’s theory is that this case involved a conspiracy to engage in conspiracies.  There is no support in the law for such a prosecution.  In fact, there is authority to the contrary.  (See People v. Johnson (2012) 205 Cal.App.4th 594, 605 [overturning conviction for conspiracy to participate in a criminal street gang (§ 186.22(a)), reasoning that “the general conspiracy statute could not be applied to [§ 186.22(a)] because a criminal street gang was itself a species of conspiracy”].)


natural and probable consequences doctrine

Jay Leiderman stands with his client, Edwin Mora during a court hearing. Edwin Mora is charged with being the lead defendant in a conspiracy to benefit the Mexican Mafia. Jay and Eddie have been fighting this case for two years and will keep fighting until a victory. Mr. Mora faces over 300 years and 10 life sentences if he is convicted.

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The grand jury’s ability to safeguard accused persons against felony charges which it believes unfounded is an attribute of due process of law inherent in the grand jury proceeding; this attribute exists for the protection of persons accused of crime before the grand jury, which is to say that it is a ‘constitutional right;’ any prosecutorial manipulation which substantially impairs the grand jury’s ability to reject charges which it may believe unfounded is an invasion of the defendant’s constitutional right.

(People v. Backus (1979) 23 Cal.3d 360, 392 [quoting the Court of Appeals opinion upheld by Johnson v. Superior Court (1975) 15 Cal.3d 248].)  Indeed, “irregularities at grand jury proceedings should be closely scrutinized because protection of the defendant’s rights is entirely under the control of the prosecution without participation by the defense.”  (Berardi v. Superior Court (2007) 149 Cal.App.4th 476, 495-496.)

During the first day of grand jury proceedings and on the record, two grand jurors made statements demonstrating they had prejudged the case and the defendants.  Pursuant to Penal Code § 939.5, these grand jurors were required to withdraw from service.  That section reads, in full:

Before considering a charge against any person, the foreman of the grand jury shall state to those present the matter to be considered and the person to be charged with an offense in connection therewith.  He shall direct any member of the grand jury who has a state of mind in reference to the case or to either party which will prevent him from acting impartially and without prejudice to the substantial rights of the party to retire.  Any violation of this section by the foreman or any member of the grand jury is punishable by the court as a contempt.

(Penal Code § 939.5 [emphasis added]; see also Packer v. Superior Court (2011) 201 Cal.App.4th 152, 163 [“all grand jurors have a statutory duty to withdraw from serving on a particular case if they harbor a bias or prejudice against the defendant”].)

For many years, California courts have held that a grand jury foreperson or biased juror’s failure to satisfy this statutory duty to withdraw is not a ground for setting aside an indictment.  (See People v. Jefferson (1956) 47 Cal.2d 438, 442; People v. Kempley (1928) 205 Cal. 441, 448.)  However, they have also recognized that improper grand jury proceedings may “result in a denial of a defendant’s due process rights, requiring dismissal of the indictment.”  (Stark v. Superior Court (2011) 52 Cal.4th 368, 417 [emphasis added].)

Recently, the Second District Court of Appeal discussed at length the “unsettled issue” of whether a defendant has a due process right to an unbiased grand jury.  (Packer, supra, 201 Cal.App.4th at pp. 158, 166-172.)  In Packer, Grand Juror No. 2 was a secretarial employee of the High Tech Task Force that assisted in the police investigation of that case.  (Id. at p. 159.)  When questioned, she explained that she had handled some of the evidence, entering information about a seized computer into a Task Force system and putting the physical computer in an evidence room.  (Id. at pp. 160, 162.)  However, Juror No. 2 had no knowledge of the contents of the computer.  (Id. at p. 162.)  She also assured the prosecutor that there was nothing that would make it difficult for her to render an unbiased decision.  (Ibid.)

The court surveyed both federal and state precedent, finding case law support on both sides of the question whether due process requires an unbiased grand jury.  (Packer, supra, 201 Cal.App.4th at pp. 167-168.)  Supreme Court precedent endorses the idea, at least as a rule in federal courts.  (Compare Beck v. Washington (1962) 369 U.S. 541, 546 [“It may be that the Due Process Clause of the Fourteenth Amendment requires the State, having once resorted to a grand jury procedure, to furnish an unbiased grand jury.”], with Costello v. United States (1956) 350 U.S. 359, 363 [the Fifth Amendment requires a federal indictment to be “returned by a legally constituted and unbiased grand jury”]; see also United States v. Finley (N.D. Ill. 1988) 705 F.Supp. 1297, 1306 [reading the Supreme Court’s opinions to hold that “defendants in federal court do have a right to an unbiased grand jury”].)  And California precedent suggests that any irregularity which “substantially impair[s] the independence and impartiality of the grand jury” violates due process.  (Stark, supra, 52 Cal.4th at p. 417; see also Backus, supra, 23 Cal.3d at p. 392.)  Importantly, the Packer court emphasized that due process concerns are heightened where, as here, they are accompanied by claims of prosecutorial impropriety.  (Packer, supra, 201 Cal.App.4th at p. 168; see also infra Part II, Subpart B.)

Ultimately, the Packer court was not required to decide whether due process requires an unbiased grand jury, instead upholding the trial court’s determination that the defendant had failed to demonstrate Juror No. 2 was actually biased.  (Packer, supra, 201 Cal.App.4th at p. 169.)  It stressed that Juror No. 2’s participation in the Task Force was “clerical”: “she did not participate in [the] analysis and had no knowledge of the computer’s contents.”  (Id. at pp. 169-170.)  While upholding the Packer defendant’s conviction, the court left some parting advice for prosecutors: “Given the unsettled state of the law, a prudent prosecutor would seek the court’s intervention where bias is apparent or at least questionable.”  (Packer, supra, 201 Cal.App.4th at p. 172.)  Of course, no intervention was sought in this case.


Unlawful Grand Jury Proceedings

Attorney Jay Leiderman intently studies his computer. He is always looking for that one case or one piece of evidence that will turn the case around


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The prosecution may, as some do, maintain that it is correct to tell the jury that he/she represents the people of the state of California, and that “I am an advocate for them.”   This statement improperly suggests to the jurors — who are supposed to be impartial fact-finders — that they are in fact aligned with the prosecutor against the defendant.

It is, of course, error to suggest such a notion.  As the Supreme Court stated in People v. Eubanks (1996) 14 Cal.4th 580, 589-590), the role and interest of the prosecution in a criminal case is obviously not that of the jury and the phrase “the People” includes the defendant:


The nature of the impartiality required of the public prosecutor follows from the prosecutor’s role as representative of the People as a body, rather than as individuals. “The prosecutor speaks not solely for the victim, or the police, or those who support them, but for all the People.  That body of ‘The People’ includes the defendant and his family and those who care about him. It also includes the vast majority of citizens who know nothing about a particular case, but who give over to the prosecutor the authority to seek a just result in their name.” (Corrigan, On Prosecutorial Ethics (1986) 13 Hastings Const.L.Q. 537, 538-539.) Thus the district attorney is expected to exercise his or her discretionary functions in the interests of the People at large, and not under the influence or control of an interested individual. (People v. Superior Court (Greer), [ ], 19 Cal.3d at p. 267.)


Unlike the adversary role of the prosecutor, the domain of the judge and the jury is true disinterest and objectivity in a criminal case. (Id. at 590.)  To suggest to jurors that the prosecutor’s role and interest and the jury’s role and interest are one and the same is a total distortion of the constitutional role each must play and undermines the defendant’s Fifth Amendment right to due process of law, the presumption of innocence, proof beyond a reasonable doubt, and the Sixth Amendment right to trial before an impartial jury.

This is not an argument that any reference to “the People,” as in the charging document, instructions, etc., is a per se violation. (See People v. Black (2003) 114 Cal.App.4th 830, rejecting such an argument.)  Here, counsel for the Defendant is narrowly focused on the prosecutor’s improper usage of the phrase to make it appear to the jury that the court, jury and the prosecution are on one side with the defendant on the other.  This is not an accurate portrayal of each distinct and separate role that each plays.  The defendant requests that the prosecution not be allowed to refer to itself as “the People” while in the presence of the jury.


At Jay Leiderman Law, we have proven results over years of practice, and we are uniquely qualified to represent you in your time of need. We are situated in Ventura, California but we handle cases throughout the state. We have the expertise, experience and skill to handle numerous types of legal matters.  Jay Leiderman is one of only a few CERTIFIED CRIMINAL LAW SPECIALISTS in the area.  He handles every kind of criminal law case. He is famous for defending medical marijuana cases and computer hacking cases, though the bulk of his practice is a generous mix of those cases plus serious felonies and misdemeanors.  Read more at his Wikipedia page: or his homepage

“A creative and multi-faceted vigorous defense comes from a creative, multifaceted lawyer.” – Jay Leiderman.

The People cannot claim that they represent the world against the defendant

Jay busy at work, thinking of the next creative defense to win his next case. Between his two computer screens, phone and laptop, Jay employs a lot of technology to defend criminal cases.

This post does not create an attorney-client relationship and does not constitute legal advice.  Moreover, the law changes over time.  Always consult an attorney before determining what motion s to file and what the current law is as to any particular topic.

Criminal defense attorney and author Jay Leiderman, a California State Bar Certified Criminal Law Specialist can be contacted through the contact page of this website:

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Defendant is charged with cultivation and possession for sales of medical marijuana.  In addition to a medical marijuana defense, defendant wishes to offer a defense that the marijuana was for religious use. Marijuana is central to his religion and is a sacrament.


I.                   THE “RELIGIOUS USE” DEFENSE.

In some cases, where the use of drugs is for religious purposes, such religious use is a defense to a charges of drug crimes.


The United States Constitution contemplates such religious protection.  The First Amendment states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .”  (U.S. Const., amdt. I.)  This “free exercise” clause is implicated by laws of general applicability that prohibit the religious use of drugs.

Congress has also weighed in on religious defenses to generally applicable laws.  In 1993, it passed the Religious Freedom Restoration Act (“RFRA”), which provides that government, “shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability,” unless it passes the strict scrutiny test.  (See 42 U.S.C. § 2000bb et seq.)

While RFRA still applies to Federal state action, it was ruled unconstitutional as applied to State law.  (see City of Boerne v. Flores (1997) 521 U.S. 507).  Thus, RFRA alone “does not trump California statutes prohibiting the sale or possession of marijuana for sale.”  (People v. Rubin (2008) 168 Cal.App.4th 1144, 1148.)

Some States instead apply the test set forth in Employment Division v. Smith (1990) 494 U.S. 872, where the strict scrutiny test was abandoned.  There, the Supreme Court held that “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’”  (494 U.S. at p. 879 [quoting United States v. Lee (1982) 455 U.S. 252, 263, n. 3 (1982) [Stevens, J., concurring]].)  The central holding of Smith is that although it is constitutionally permissible to exempt sacramental peyote use from the operation of drug laws, it is not constitutionally required.  Rather, an exemption is only required if the conduct is otherwise lawful.

California does not use the Smith test, nor does it use the RFRAInstead, it applies its own analysis based upon existing law prior to both Smith and the RFRA.

Smith v Employment Division,

religious use

Certain religions all around the world have always used drugs to commune with their gods. Such is the case with religions in the United States.


Aside from these federal laws, the States are left to determine the level of constitutional scrutiny, if any, to a claim of religious protection based upon their own laws.  A “religious use” defense was available to defendants charged with some offenses even before California voters passed the Compassionate Use Act (“CUA”), also known as Prop 215, in 1996.  And that defense survived.  The defense of religious use is still available, as long as a defendant provides adequate evidence to trigger its use.  (People v. Trippet (1997) 56 Cal.App.4th 1532, 1542.)

California courts have made winning such a “religious use” difficult, but have indeed found it to exist for certain groups, included in them are Native Americans.  Defendant is a Native American.  In Trippet, for example, the defendant’s mere assertion that she used marijuana “for spiritual and meditative needs” was not sufficient.  (Trippet, 56 Cal.App.4th at p. 1542.)  And in People v. Mitchell (1966), the court rejected the defendant’s claim that he growing and using marijuana pursuant to a religious belief.  Quoting the bible, the Mitchell defendant argued that marijuana use was “a divine right of natural inheritance.”  (Mitchell, 244 Cal.App.2d at p. 179.)  The court rejected this as his “personal philosophy,” not that of a religion.  (Id. at p. 182.)  Likewise, in People v. Collins (1969) 273 Cal.App.2d 486, 487 the court rejected a religious use defense to marijuana possession, finding that the “defendant does not worship or sanctify marijuana, but employs its hallucinogenic biochemical properties as an auxiliary to a desired capacity for communication.”

To prevail, a defendant must show that the use of marijuana must be an indispensable practice of one’s faith.  (Collins, 273 Cal.App.2d at pp. 486-488.)  Unless a defendant can conscientiously offer to prove through a detailed factual representation that his use of marijuana comes within the narrow margins of accepted religious use, he or she will be denied the ability to even raise the issue in front of a jury.  (People v. Werber (1971) 19 Cal.App.3d 598.)

a defendant must show that the use of marijuana must be an indispensable practice of one’s faith

This burden, while high, is not insurmountable.  Genuine membership in the Ethiopian Zion Coptic Church (“EZCC”), whose members are commonly called “Rastafarians,” would lead to the availability of the defense of religious use.  (See Guam v. Guerrero (9th Cir. 2002) 290 F.3d 1210, 1212-1213 [noting that “Rastafarianism is a legitimate religion” and “marijuana use is sacramental in the practice of that religion”].)  Rastafarians believe ganja—their term for marijuana—is the “tree of life” and translate Revelations 22:2 as “the herb is the healing of the nations.”

At least one California court has fully analyzed a Rastafarian religious use defense to marijuana charges.  In People v. Peck (1996) 52 Cal.App.4th 351, 356 the defendant was “president and a priest of the Israel Zion Coptic Church (“IZCC”)[,] . . . an offshoot of the Rastafarians.”  While living in Wisconsin, the defendant and other members of the IZCC were buying small quantities of marijuana for church use.  (Id.)  Typically, the members would use marijuana approximately three times a day.  (Id.)  But because buying small quantities was expensive, the defendant collected $30,000 from church members so he could travel to San Diego, purchase a large quantity of marijuana, and return to Wisconsin.  (Id.)

The court acknowledged that marijuana use was a sacrament for the IZCC.  (Peck, 52 Cal.App. 4th at p. 356, 359.)  However, its analysis recognized that the defendant “was prosecuted not for using marijuana but for transporting a large quantity of it and possessing it for sale.”  (Id. at p. 359.)  While the Peck court appeared ready to allow a religious defense for marijuana use, the activities of transportation and sales were “related peripherally, if at all, to the practice of defendant’s religion.”  (Id.; see also id. at p. 360 [“There was no indication that defendant’s own practice of his religion required him to obtain marijuana for distribution to others, especially those who were not even church members.”]; cf. also United States v. Bauer (9th Cir. 1996) 84 F.3d 1549 [holding that religious use defense under RFRA was relevant to simple possession charges, but not to distribution charges].)  As such, the religious use defense was not available to the charge of transportation.

The same protections have been long held to be available for Native Americans.  Indeed, this proposition goes all the way back to 1964.  See People v. Woody (1964) 61 Cal.2d 716.

“When the police entered the hogan and charged the participants with the use of peyote, one of the Indians handed the officers a gold-colored portrait frame containing a photostatic copy of the articles of incorporation of the Native American Church of the State of California. The articles declared: “That we as a people place explicit faith and hope and belief in the Almighty God and declare full, competent, and everlasting faith in our Church things which and by which we worship God. That we further pledge ourselves to work for unity with the sacramental use of peyote and its religious use.”” 717.  Over the years, marijuana has replaced peyote for some in these “sweat-lodge ceremonies.”  Defendant attends sweat lodge ceremonies and uses marijuana to alter his consciousness.  This is central to his sweat lodge participation and the sweat lodge ceremonies are central to his religion.  In other words, no marijuana, no sweat lodge, no sweat lodge, no religion.

“Although the prohibition against infringement of religious belief is absolute, the immunity afforded religious practices by the First Amendment is not so rigid.” 718 (citations omittied).  “An examination of the record as to the nature of peyote and its role in the religion practiced by defendants as members of the Native American Church of California compels the conclusion that the statutory prohibition most seriously infringes upon the observance of the religion.”  Id. at 720.  We are prepared to prove that marijuana is accepted by the Church and the shamans thereof as a substitute for Peyote.  Here is what the Woody court said with regards to the ceremony:

Rastafarians believe ganja—their term for marijuana—is the “tree of life” and translate Revelations 22:2 as “the herb is the healing of the nations.”

The meeting convenes in an enclosure and continues from sundown Saturday to sunrise Sunday. To give thanks for the past good fortune or find guidance for future conduct, a member will “sponsor” a meeting and supply to those who attend both the peyote and the next morning’s breakfast. The “sponsor,” usually but not always the “leader,” takes charge of the meeting; he decides the order of events and the amount of peyote to be consumed. Although the individual leader exercises an absolute control of the meeting, anthropologists report a striking uniformity of its ritual.

A meeting connotes a solemn and special occasion. Whole families attend together, although children and young women participate only by their presence. Adherents don their finest clothing, usually suits for men and fancy dresses for the women, but sometimes ceremonial Indian costumes. At the meeting the members pray, sing, and make ritual use of drum, fan, eagle bone, whistle, rattle and prayer cigarette, the symbolic emblems of their faith. The central event, of course, consists of the use of peyote in quantities sufficient to produce an hallucinatory state.

Religious Use

Under certain circumstances the religious use of drugs is lawful in both California and under the United States Federal Law

At an early but fixed stage in the ritual the members pass around a ceremonial bag of peyote buttons. Each adult may take four, the customary number, or take none. The participants chew the buttons, usually with some difficulty because of extreme bitterness; later, at a set time in the ceremony any member may ask for more peyote; occasionally a member may take as many as four more buttons. At sunrise on Sunday the ritual ends; after a brief outdoor prayer, the host and his family serve breakfast. Then the members depart. By morning the effects of the peyote disappear; the users suffer no aftereffects.


Although peyote serves as a sacramental symbol similar to bread and wine in certain Christian churches, it is more than a sacrament. Peyote constitutes in itself an object of worship; prayers are directed to it much as prayers are devoted to the Holy Ghost. On the other hand, to use peyote for nonreligious purposes is sacrilegious. Members of the church regard peyote also as a “teacher” because it induces a feeling of brotherhood with other members; indeed, it enables the participant to experience the Deity. Finally, devotees treat peyote as a “protector.” Much as a Catholic carries his medallion, an Indian G.I. often wears around his neck a beautifully beaded pouch containing one large peyote button.

It is anathema to think that the State has any compelling interest, or even a rational basis to foreclose Defendant’s use of marijuana at a legitimate religious ceremony.  California has medical marijuana laws and has decriminalized the possession of small amounts of marijuana.  There is no rational basis to think that California has an interest in prohibiting a lawful substitute or pairing substance to peyote when practicing a bona-fide Native American religion.  The courts have been through this issue before.  The possession and cultivation for use during a religious ceremony are protected by the First Amendments “establishment clause” and Defendant requests a commensurate ruling that he is entitled too use the religious use defense for his cultivation of marijuana.



For the foregoing reasons, the court should allow Defendant to bring forth facts about his religion that prove that both peyote and marijuana are central to his bona-fide religion and are thus protected by the religious use of drugs carve out of the First Amendment.


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