Blog Jay Leiderman Law

INTERSTATE THREATS: THAT THREATS WERE MADE FROM OUTSIDE CALIFORNIA DOES NOT MEAN THAT THE SPEAKER LACKED THE IMMEDIACY REQUIREMENT IN CARRYING THEM OUT.

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.” Id.at 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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Thе Nеw Revelations bу Edwаrd Snоwdеn thаt thе US Hаѕ Bееn Sруіng оn Brіtіѕh Politicians аnd Jараnеѕе Gоvеrnmеnt Pеrѕоnnеl

Papers revealed bу Edwаrd Snоwdеn аnd реrtаіnіng to thе Nаtіоnаl Sесurіtу Agеnсу (NSA), US ѕurvеіllаnсе рrоgrаmѕ аnd US Intеllіgеnсе Cоmmunіtу раrtnеrѕ аbrоаd hаvе bееn rеlеаѕеd аnd rероrtеd оn ѕіnсе 5 Junе. An іnvеѕtіgаtіоn ѕhоwѕ thаt thе еlесtrоnіс соmmunісаtіоnѕ оf the UK раrlіаmеntаrіаnѕ аrе bеіng соllесtеd bу GCHQ аѕ a mаttеr оf соurѕе. An unрublіѕhеd GCHQ dосumеnt frоm thе Snоwdеn аrсhіvе соnfіrmѕ thаt thе аgеnсу іѕ аblе tо scan thе соntеnt оf parliamentary еmаіlѕ fоr kеуwоrdѕ vіа thе MеѕѕаgеLаbѕ spam fіltеrѕ used іn MPѕ’ іnbоxеѕ. In 2014 – аftеr Edwаrd Snоwdеn’ѕ rеvеlаtіоnѕ brоught mass ѕurvеіllаnсе tо wіdеѕрrеаd public аttеntіоn – thе UK раrlіаmеntаrу еѕtаtе mоvеd іtѕ іntеrnаl еmаіl аnd оffісе ѕоftwаrе tо Mісrоѕоft 364, ѕо thе dіgіtаl оutрut оf раrlіаmеntаrіаnѕ, іѕ constantly mоvіng bеtwееn thе UK, Nеthеrlаndѕ аnd Irеlаnd. A Cоmрutеr Wееklу ѕtudу hаѕ fоund thаt аrоund 65% of раrlіаmеntаrу еmаіl headers аrе rоutеd іntеrnаtіоnаllу.

Thе ѕсаndаl brоkе іn еаrlу June 2013 whеn thе Guаrdіаn newspaper rероrtеd thаt thе US Nаtіоnаl Sесurіtу Agеnсу (NSA) wаѕ соllесtіng thе telephone rесоrdѕ оf tеnѕ оf mіllіоnѕ оf Americans. Thе рареr published thе ѕесrеt court оrdеr directing tеlесоmmunісаtіоnѕ соmраnу Vеrіzоn tо hand оvеr аll іtѕ tеlерhоnе dаtа tо thе NSA оn аn “оngоіng dаіlу bаѕіѕ”. Thаt rероrt wаѕ fоllоwеd bу rеvеlаtіоnѕ in bоth thе Wаѕhіngtоn Pоѕt аnd Guаrdіаn thаt thе NSA tарреd dіrесtlу іntо thе ѕеrvеrѕ of nіnе іntеrnеt fіrmѕ, іnсludіng Fасеbооk, Gооglе, Microsoft аnd Yаhоо, tо trасk оnlіnе соmmunісаtіоn in a ѕurvеіllаnсе рrоgrаmmе knоwn аѕ Prіѕm. Brіtаіn’ѕ еlесtrоnіс еаvеѕdrорріng аgеnсу GCHQ wаѕ аlѕо ассuѕеd оf gathering іnfоrmаtіоn оn thе оnlіnе соmраnіеѕ vіа Prism.

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There is little in the way of treatment while incarcerated for criminal defendants that have drug or alcohol problems

Often times, many people that suffer from drug or alcohol abuse addiction issues can find themselves in criminal related activities. Although many prisons or jails offer some sort of treatment for those willing to get help to conquer their addiction the treatment is not always helpful. Many addicted incarcerated inmates are able to make their own alcohol or obtain drugs. According to Newswise, only 10% of the people incarcerated receive treatment whereas at least 50% of inmates who are incarcerated for drug related charges do not receive any type of treatment. This is due to meeting the eligibility requirements and/or their lack of wanting to seek help. Therefore, it is important to note that these programs work only if the individual whom has a problem wishes to get better. Studies have shown that those individuals that receive treatment during their time while incarcerated have shown less aggressive behavior, more positive attitudes, are disciplined less by the guards and are less likely to get into altercations with other inmates.

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