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Equal Protection: Possession of a destructive device ~ California Penal Code section 12312


Similarly situated individuals, who are punished differently for violations of the law without a compelling state interest to justify that different punishment, are denied the equal protection of the laws. (United States Constitution Amend IV, California Constitution art. I, §§ 11, 21; art. IV, § 16) Mr. Defendant is charged with possession of the ingredients to make a destructive device, a crime punishable by imprisonment for two, three or four years (Penal Code section 12312), of which no portion of the sentence may be suspended, nor may probation be granted (Penal Code section 12311). Contrast this with the actual possession of a destructive device, which is punishable by imprisonment in the county jail for up to one year or imprisonment in the state prison for sixteen months, two, or three years (Penal Code section 12303), and it becomes clear that the punishment scheme for section 12312 violates the equal protection clauses of the United States and California Constitutions.

A. The classifications herein – – “those who possess the ingredients with the intent to make a destructive device” and “those who are in possession of a destructive device” – – are “sufficiently similar”
“The concept of the equal protection of the laws compels recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment. It is often stated that the first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner. The use of the term ‘similarly situated’ in this context refers only to the fact that the Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same. There is always some difference between the two groups which a law treats in an unequal manner since an equal protection claim necessarily asserts that the law in some way distinguishes between the two groups. Thus, an equal protection claim cannot be resolved by simply observing that the members of group A have distinguishing characteristic X while the members of group B lack this characteristic. The ‘similarly situated’ prerequisite simply means that an equal protection claim cannot succeed, and does not require further analysis, unless there is some showing that the two groups are sufficiently similar with respect to the purpose of the law in question that some level of scrutiny is required in order to determine whether the distinction is justified.”

( People v. Nguyen (1997) 54 Cal. App. 4th 705, 714, internal quotation marks and citations omitted.)
In Nguyen, the prerequisite showing was met. The court in that case determined that persons with two prior strikes without a prior theft conviction were similarly situated to those who had suffered two prior strikes and a prior theft conviction. 54 Cal.App.4th at 714-15.
Likewise, in People v. Olivas, (1976) 17 Cal. 3d 236, the California Supreme Court determined that minors tried in Superior Court were similarly situated to minors tried in Juvenile Court with respect to the available punishment for each group. This principle was affirmed in In re Eric J., (1979) 25 Cal.3d522, 530, where the court determined that minors, although similarly situated to each other, were not similarly situated to adults with respect to penal purposes.
Here, the groups are sufficiently similar to one another. They both involve individuals charged with possession crimes under the chapter of the Penal Code entitled “Destructive Devices.” (Article 4, Chapter 2.5, Penal Code section 12301 et seq.) The only difference between the two groups is that one – – the more heavily penalized group – – possesses only a portion of the destructive device with the intent to make the destructive device, while the second – – the less penalized group – – possesses the completed device.  Accordingly, having the ingredients to make a destructive device is penalized greater than possession of a destructive device.

Equal Protection: Possession of a destructive device 12312 California Penal Code

Possession of the ingredients to make a destructive device carry a greater punishment than the actual possession of a destructive device

B. A challenge to a statute affecting the liberty interest of a class of persons is subject to review via “strict Constitutional scrutiny”
“The next step in analyzing an equal protection challenge is a determination of the appropriate standard of review. In this case, the California Supreme Court has dictated that the appropriate standard of review for a distinction of this kind is strict scrutiny. This standard was established by a unanimous California Supreme Court in People v. Olivas (1976) 17 Cal. 3d 236 [131 Cal. Rptr. 55, 551 P.2d 375]. It is well accepted that strict scrutiny review is applied only where the classification is “suspect” or affects a “fundamental interest.” (Olivas, at p. 243.) The defendant in Olivas did not claim that the challenged classification itself was “suspect,” but only that it involved a fundamental interest. (Olivas, at p. 244.) The California Supreme Court analyzed the issue solely from a “fundamental interest” standpoint. “[W]e must initially define just what ‘interest’ is involved in the present case. Once that determination is made we must next decide whether that ‘interest’ is ‘fundamental’ for purposes of equal protection analysis. We must finally apply the appropriate standard of review to the legislative classification to see if it passes constitutional muster.” (Olivas, at p. 244.)”

( People v. Nguyen (1997) 54 Cal. App. 4th 705, 715.)
In People v. Olivas (1976) 17 Cal. 3d 236, 251 [131 Cal. Rptr. 55, 551 P.2d 375], the California Supreme Court held that liberty is a fundamental interest and that classifications dealing with it must satisfy the strict scrutiny test. “We conclude that personal liberty is a fundamental interest, second only to life itself, as an interest protected under both the California and United States Constitutions.” (17 Cal.3d at 251.) Stated simply, when one can go to jail for a longer period of time because a statute denies the equal protection of the laws, that statute affects a “liberty interest,” which is in turn a “fundamental interest.”
In Olivas, the court applied that test and found it was a denial of equal protection to charge, try and convict a juvenile offender in adult court and then, pursuant to Welfare and Institutions Code section 1731.5, commit that person to the Youth Authority for a longer term than for an adult convicted of the same offense but sentenced to prison. “Olivas [(1976) 17 Cal. 3d 236] struck down a classification which subjected misdemeanor offenders between the ages of 18 and 21 to significantly “extended incarceration” beyond that applicable to misdemeanor offenders over the age of 21 who had committed the same offense.” (Nguyen, 54 Cal. App. 4th at 715.)

Equal Protection: Possession of a destructive device

The US Constitution protects both the innocent and the guilty

C. Once it is determined that the “strict scrutiny” standard must be applied, it is incumbent upon the State to show a compelling governmental interest in the discrimination; no such interest can be shown herein.
Here, the government must state which compelling state interest is served by the punishment scheme enacted by Chapter 2.5 of Article 4 of the Penal Code. The government must explain why possessing a destructive device can be a misdemeanor but possessing the ingredients to make that device is a felony punishable by a mandatory term in the state prison. No such compelling state interest exists, and thus the statutory scheme fails.
“[O]nce it is determined that the classification scheme affects a fundamental interest or right the burden shifts; thereafter the state must first establish that it has a compelling interest which justifies the law and then demonstrate that the distinctions drawn by the law are necessary to further that purpose. [Citations.] Having determined that personal liberty is an interest which is entitled to the same protection as other fundamental interests, we confront the central issue before us: can the challenged sentencing scheme withstand application of the strict scrutiny standard?” (People v. Olivas, supra, 17 Cal. 3d at p. 251).
In People v. Nguyen, supra, ((1997) 54 Cal. App. 4th 705) the court struck down an equal protection challenge to the three strikes law as applied to the crime of petty theft with priors. “[A] petty thief who has two prior serious felony convictions, including or in addition to a prior theft-related conviction which resulted in confinement, is subject to punishment under [the three strikes law], but a petty thief who has two prior serious felony convictions but no prior theft-related convictions is subject only to misdemeanor punishment.” ( People v. Nguyen (1997) 54 Cal. App. 4th 705, 714.) The court’s logic was simple. Persons with significant criminal records including theft related offenses are not similarly situated to those with serious criminal records but without such theft records. Indeed, the court states that: “Individuals who commit petty theft and have a history of committing theft-related offenses are significantly distinct from those individuals who have no such history.” (54 Cal. App. 4th at 717). The court reasoned:
“The commission of theft by a thrice convicted individual with not only a history of serious felony misconduct but also of committing theft and being confined therefor poses a much more serious danger to the community than the commission of theft by an twice convicted individual with a history of serious felony misconduct who has never before committed theft. As he or she has suffered more prior convictions, the thrice convicted individual has had more opportunities to reform his or her conduct. Notwithstanding these additional opportunities to conform his or her conduct to society’s rules, the thrice convicted individual has chosen a life of crime. The previous confinement of this individual for his or her prior theft-related offense also failed to prevent this individual from again committing a theft-related offense. As the thrice convicted individual has shown himself or herself to be resistant to confinement and committed to a life of crime, this individual poses a substantially greater danger to the community than the twice convicted individual who has never before committed a theft-related offense. The state has a compelling interest in eliminating this danger to society which necessitates harsher punishment for such individuals.”

Here, it is implausible that the Legislature believed persons who possessed ingredients to make a destructive device with the intent to make that device could be punished less harshly than those who actually followed through and completed the destructive device. There is no logic to the distinction.

Equal Protection: Possession of a destructive device medical marijuana computer crime homicide fraud money laundering

Ventura County, California Defense Lawyer and Certified Criminal Law Specialist Jay Leiderman on his way to court.

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Cop math

Dennis Roberts, via email, 9 June 2016

Ahhh, cop math.  Today I read a new story about drug trafficking; a huge marijuana raid involving several grow houses in Oakland and the Sinaloa cartel. 15 were arrested. In one paragraph the police say the marijuana was worth almost $4 million dollars. A couple of paragraphs later they say they cannot estimate the value of the marijuana. How is this possible?  Simple. The cops found a note which said “this marijuana is worth almost 4 million dollars” but it was not notarized so they couldn’t be sure. It’s simple to figure it out just like the cops do. It’s cop math.  Just take the poundage and make an assumption. Each pound yields X joints. Ascribe a value to a joint and multiply. Cop math.  No officer you cannot use your calculator. You’ve done hundreds maybe thousands of search and seizures. And yet you need a calculator. What about a pencil and paper?

Cop math

The police tend to be less than reliable in their math when it comes to the street value of drugs. You never do know when an ounce of marijuana purchased for $120.00 is worth $570.00 because it is valued at $20 per gram x 28.5 grams per ounce = $570.00. Doesn’t matter what you paid.  Doesn’t matter what it truly sells for.  Cop math.

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In People v. Melhado, (1998) 60 Cal. App. 4th 1529, 1538 the court grappled with the issue of the immediate prospect of carrying out a threat.  It said: “[W]e understand the word “immediate” to mean that degree of seriousness and imminence which is understood by the victim to be attached to the future prospect of the threat being carried out, should the conditions not be met.”


“immediate” relates to the degree of seriousness and imminence of the threat being carried out


In People v. Smith, (2009) 178 Cal. App. 4th 475, the court held that threats made from Texas into California qualified as immediate within the meaning of Penal Code section 422 (criminal threats).  The immediacy requirement has been met to find that the Defendant has made unlawful criminal threats.  From Smith: 

Defendant argues there was insufficient evidence to support the third element; he was in Texas, without a job or income, and the victim, S.J., was in California when he allegedly made the threats; therefore the threats could not have been “so unequivocal, unconditional, immediate, and specific as to convey to the person threatened a gravity of purpose and immediate prospect of execution of the threat . . . .” Our Supreme Court has held: “With respect to the requirement that a threat be `so unequivocal, unconditional, immediate, and specific as to convey to the person threatened a gravity of purpose and an immediate prospect of execution of the threat,’ we explained in People v. Bolin, supra, 18 Cal.4th 297, that the word `so’ in section 422 meant that `”unequivocality, unconditionality, immediacy and specificity are not absolutely mandated, but must be sufficiently present in the threat and surrounding circumstances . . . .”‘ ([People v.] Bolin, supra, 18 Cal.4th at p. 340,quoting People v. Stanfield (1995) 32 Cal.App.4th 1152, 1157 [38 Cal.Rptr.2d 328].) `The four qualities are simply the factors to be considered in determining whether a threat, considered together with its surrounding circumstances, conveys those impressions to the victim.’ (People v. Stanfield, supra, 32 Cal.App.4th at pp. 1157-1158.)” (In re George T., supra, 33 Cal.4th at p. 635.) The Court of Appeal has held: “The terrorist threat statute requires a threat to be `so unequivocal, unconditional, immediate, and specific as to convey to the person threatened a gravity of purpose and an immediate prospect of execution of the threat.’ (§ 422.) [But section 422] does not require an immediate ability to carry out the threat. (In re David L. (1991) 234 Cal.App.3d 1655, 1660 [286 Cal.Rptr. 398].)” (People v. Lopez (1999) 74 Cal.App.4th 675, 679 [88 Cal.Rptr.2d 252].) The totality of the circumstances must be considered in addition to the words used. (People v. Gaut (2002) 95 Cal.App.4th 1425, 1431 [115 Cal.Rptr.2d 924]; People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340-1341 [69 Cal.Rptr.2d 728]; People v. Martinez (1997) 53 Cal.App.4th 1212, 1218 [62 Cal.Rptr.2d 303].) As our colleagues in Division Seven of this appellate district explained in People v. Mendoza, supra, 59 Cal.App.4th at pages 1340-1341: “[T]he determination whether a defendant intended his words to be taken as a threat, and whether the words were sufficiently unequivocal, unconditional, immediate and specific they conveyed to the victim an immediacy of purpose and immediate prospect of execution of the threat can be based on all the surrounding circumstances and not just on the words alone. The parties’ history can also be considered as one of the relevant circumstances. [Citations.]”

People v. Smith, (2009) 178 Cal. App. 4th 475, 480-481.

 The parties’ history can also be considered as one of the relevant circumstances

“Defendant said that when S.J. got back to Texas, “[S]he was going to go through hell . . . if she survived, if he didn’t kill her.” S.J. believed defendant would come to California and hurt her. She felt defendant had nothing left to lose. The foregoing constitutes substantial evidence defendant made a criminal threat against S.J. which met the immediacy requirement. A trier of fact could intelligently conclude: it was reasonable for S.J. to fear defendant would follow through on the threats he made from Texas.” 481.


interstate threats

Attorney Jay Leiderman defends people charged with making threats via the internet and other methods of interstate communication.


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Two war stories from legendary civil rights and criminal defense attorney Dennis Roberts on silly prosecutions

From an email sent 7 December 2010 by Dennis Roberts

I was approached by the girlfriend of a guy who was being charged with counterfeiting AUSTRALIAN dollars in the US. Who gives a shit you might ask. Turns out there is a federal statute prohibiting just this crime 18 USC 480. Even funnier is 18 USC 490 which prohibits counterfeiting pennies and nickles. I kid you not. Of course this guy had no intention of passing them in the US but was going to take them back to Australia. I figured it was a dream case. I mean would they prosecute a guy who counterfeited Iranian money here with the intention of passing it in Iran or a guy who counterfeited the currency of one of those African countries where a U S. dollar is worth 23 gazillion dollars of their currency; or a guy who counterfeits Bulgarian or Polish money which is (or at least was) absolutely worthless outside of Bulgaria or Poland I know this from being in Bulgaria in 1968.

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Edwin Mora

California State Bar Certified Criminal Law Specialist and Ventura County, California defense attorney Jay Leiderman is lead attorney for the “Mexican Mafia Case” – the largest ever prosecution in the history of Ventura County, California.

ventura county california criminal defense lawyer certified criminal law specialist attorney Jay Leiderman is the lead attorney for the "Mexican Mafia Case"

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.

In the case described below, “Operation Supernova” part 2, Luis Tapia got 300 years to life.  In the case pictured above, attorney Jay Leiderman is lead attorney for the “Mexican Mafia Case” where 27 defendants have been charged with conspiracy and substantive crimes related to drugs, weapons, extortion and robbery all for the benefit of the Mexican Mafia.  Mora initially faced over 1300 years until Leiderman brought a motion to dismiss certain counts, and 17 counts were dismissed in Mora’s case.

Leiderman is defending Edwin “Sporty” Mora. The case is expected to go to trial in February of 2015. Jay’s client is looking at 10 life sentences plus 300 years plus a second federal indictment where he faces another life count. The case is named “Operation Supernova Part III.”

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