Blog Jay Leiderman Law

On 20 July 2000, the state court of appeal for the Fourth District announced its opinion in People v. Giardino, 82 Cal.App.4th 454 (2000), holding that Penal Code section “261(a)(3) proscribes sexual intercourse with a person who is not capable of giving consent because of intoxication.” Id. at 462.[1] Thus, it was perfectly clear as of July 2000 that actual capitulation and agreement is not a defense in a rape case if the victim is intoxicated or unconscious or otherwise incapable of exercising free will, because they lack the capacity to legally .  No competent attorney could have thought otherwise.[2]  Accordingly, attorneys who as of that date suggested otherwise fell below the standard set forth in Strickland.

This was not the case in the proceeding complained of herein. It was ineffective to not tell the client about the clarification in law and that he had no defense.



[1] All counsel needed to do was read this paragraph, toward the beginning of Giardino, to know that any defendant situated like the facts of these cases did not have a defense of “consent”.  It was literally that easy, and the Giordino decision that clear:


“By itself, the existence of actual consent is not sufficient to establish a defense to a charge of rape. That the supposed victim actually consented to sexual intercourse disproves rape only if he or she had “sufficient capacity” to give that consent. (See People v. Mayberry (1975) 15 Cal.3d 143, 154 [125 Cal.Rptr. 745, 542 P.2d 1337]; 2 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) Crimes Against Decency and Morals, § 774, p. 873.) For example, if the victim is so unsound of mind that he or she is incapable of giving a legal “go ahead,” the fact that he or she may have given actual consent does not prevent a conviction of rape. (People v. Griffin (1897) 117 Cal. 583, 585-587 [49 P. 711], overruled on others grounds by People v. Hernandez (1964) 61 Cal.2d 529, 536 [39 Cal.Rptr. 361, 393 P.2d 673, 8 A.L.R.3d 1092].) Hence, the consent defense fails if the victim either did not actually consent or lacked the capacity to give legally cognizable consent.”


82 Cal.App4th 454, 460.


[2] No reasonable practitioner of criminal law could read Giardino, supra, and conclude the defense of actual acquiescence could be used in the instant case  Two years later, on 13 September 2002, while the present trial was still pending, the court in People v. Dancy, 102 Cal.App.4th 21 (2002), reiterated that a victim cannot legally agree to sex when she is severely intoxicated. A man’s reasonable belief that a woman has consented or would have consented to unconscious sex is irrelevant because a woman must always be able to “withdraw her consent to a sex act even after the initiation of sexual intercourse.” Id. at 36-37. Dancy is entirely consistent with and has the same holding as in Giardino and a reasonably competent attorney would have known so.  To fail to know the basic law of the case falls below the Strickland standard.  On the issue of rape and consent, see also People v. Roundtree (January 21, 2000) 77 Cal.App.4th 846.



Here are portions of Giordano that explain the issue in detail:

Reasoning that lack of consent is an element of rape, or conversely that consent is a defense, the defendant contends that the trial court should have defined consent in accordance with section 261.6 and instructed the jury that lack of consent is an element of the offenses of rape by intoxication and oral copulation by intoxication. [ ] He is mistaken. Giardino, 82 Cal.App.4th 454, 459.

In the context of rape and other sexual assaults, “consent” is defined as the “positive cooperation in act or attitude pursuant to an exercise of free will.” (§ 261.6.) To give consent, a “person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved.” (Ibid.; accord, CALJIC No. 1.23.1.) In short, that definition describes consent that is actually and freely given without any misapprehension of material fact. We shall refer to this as “actual consent.” (82 Cal.App.4th 459, 460.)

By itself, the existence of actual consent is not sufficient to establish a defense to a charge of rape. That the supposed victim actually consented to sexual intercourse disproves rape only if he or she had “sufficient capacity” to give that consent. [citations] For example, if the victim is so unsound of mind that he or she is incapable of giving legal consent, the fact that he or she may have given actual consent does not prevent a conviction of rape. [citations] Hence, the consent defense fails if the victim either did not actually consent or lacked the capacity to give legally cognizable consent. (Id. At 460.)

We conclude that, just as subdivision (a)(1) of section 261 proscribes sexual intercourse with a person who is not capable of giving legal consent because of a mental disorder or physical disability, section 261(a)(3) proscribes sexual intercourse with a person who is not capable of giving legal consent because of intoxication. In both cases, the issue is not whether the victim actually consented to sexual intercourse, but whether he or she was capable of exercising the degree of judgment a person must have in order to give legally cognizable consent. (Id at. 462.)


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A Petitioner is entitled to competent privately retained counsel on Habeas Corpus. (In re Clark (1993) 5 Cal.4th 750, 780)  In addition to that, here, the ineffective assistance of counsel has denied the petitioner access to the courts.  The ineffective assistance of counsel claimed denied petitioner actual access to courts including the trial court, the appeals court and the court on habeas.  As stated by the California Supreme Court in In re Clark (1993) 5 Cal.4th 750, 779 (emphasis added):


“In limited circumstances, consideration may be given to a claim that prior habeas corpus counsel did not competently represent a petitioner. An imprisoned defendant is entitled by due process to reasonable access to the courts, and to the assistance of counsel if counsel is necessary to ensure that access, but neither the Eighth Amendment nor the due process clause of the United States Constitution gives the prisoner, even in a capital case, the right to counsel to mount a collateral attack on the judgment. [¶] Regardless of whether a constitutional right to counsel exists, a petitioner who is represented by counsel when a petition for writ of habeas corpus is filed has a right to assume that counsel is competent and is presenting all potentially meritorious claims.”


This language in Clark applies to a situation like the one presented herein, where counsel and successor counsel denied petitioner access to the courts .

Thus, petitioner was denied due process by the ineffective assistance of counsel.  He has alleged facts to support that he received ineffective assistance of counsel, and the ineffective assistance denied him the right to be present at trial, to appeal, and to present the claims in his habeas.   The Clark court was clear that they could not countenance improper representation that would fail to present all potential meritorious claims.

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Tuesday, January 15, 2013

Jay Leiderman on Russia Today Discussing DDoS as Protest Speech

Demanding the right to digitally protest: Hacktivists petition the White House to legalize DDoS

Another wonderful article by Andy Panda Blake accompanied this RT story on DDoS as protected speech.  The title is above, here is the unabridged text.  Thanks to Andy for, as usual, being fair and getting it right:
Is temporarily slowing down a website a legal form of protest? Current US law says it isn’t, but hacktivists want the White House to make changes that would force the government to reconsider their witch-hunt against alleged computer criminals.

In the latest petition to go viral, the Obama administration is asked to make a method of momentarily crippling a website comparable to real word demonstrations, essentially allowing for a whole new legal form of online protest.

“With the advance in internet technology comes new grounds for protesting,” writes ‘Dylan K’ of Eagle, Wisconsin.

Dylan’s petition, uploaded this week to the White House’s We the People page, is the most recent of these electronic pleas on the website to generate national headlines. A series of petitions in late 2012 demanding the peaceful secession of certain states from the US garnered nearly one million signatures from across the country, and just this week the Obama administration was prompted to respond to one popular request to depot CNN host Piers Morganover his outspoken anti-gun views. That call for action, advocated by Second Amendment proponents and firearm owners concerned over a possible rifle ban, eventually accumulated around 110,000 electronic signatures.

When the White House responded to the petition to deport Morgan this week, press secretary Jay Carney said Americans shouldn’t let “arguments over the Constitution’s Second Amendment violate the spirit of its First.”


DDoS should be viewed by the courts as speech protected withing the First Amendment as long as the protests are reasonable in time, place and manner

Those rallying for new computer laws say that current legislation limits those very constitutional rights, though, and that one electronic form of action should be covered under the First Amendment — the provision that provides for the freedom of speech, protest and assembly.

In the latest instance, the White House is asked to evaluate a federal rule that currently makes it unlawful to engage in distributed denial-or-service, or DDoS, attacks — a harmless but effective way of flooding a website’s server with so much traffic that it can’t properly render pages for legitimate users.

Performed by both seasoned hackers and novice computer users alike, DDoS-ing a website essentially makes certain pages completely unavailable for minutes, hours or days. Unlike real world protests, though, demonstrators don’t even have to leave the house to protest. Instead, humongous streams of information can be sent to servers with a single mouse click, only for that data to become so cumbersome that the websites targeted can’t properly function.

Under the Computer Fraud and Abuse Act, a DDoS assault is highly illegal. For those familiar with the method, though, they say it’s simply a matter of voicing an opinion in an online format and should be allowed.

“Distributed denial-of-service is not any form of hacking in any way,” states the petition. “It is the equivalent of repeatedly hitting the refresh button on a webpage.”

Overloading a targeted website with too much traffic, says Dylan K, is “no different than any ‘occupy’ protest.”According to him and the roughly 1,100 cosigners, there is much common ground between the two. “Instead of a group of people standing outside a building to occupy the area, they are having their computer occupy a website to slow (or deny) service of that particular website for a short time,” he says.

For companies that are hit with DDoS assaults, though, they sing a different song. In 2006, controversial radio host Hal Turner had his website taken offline after members of the then-infant hacktivist movement Anonymous used denial-of-service attacks to shut down his site to visitors. Turner said the bandwidth overflow cost him thousands of dollars in fees from his hosting company.

When Turner tried to sue those he blamed for the DDoS attack, a federal judge for the United States District Court in New Jersey eventually dismissed his claim. Other “hackers,” however, haven’t been so lucky.

When PayPal, Visa and MasterCard announced in 2010 that it would no longer accept funds for the website WikiLeaks, Anonymous and others responded with a DDoS attack on the payment service providers. The following summer, the US Department of Justice filed an indictment against 14 Americans they accused of participating in shutting down PayPal.

That same year, a homeless hacker using the alias “Commander X” was charged with waging a DDoS attack on the official government website of Santa Cruz, California because he opposed the city’s policy that outlawed sleeping in public space. X could have been sentenced to serious time for committing a felony, but he escaped the United States, allegedly seeking refuge in Canada where he is reported to be in hiding today.

“For a 30-minute online protest I’m facing 15 years in a penitentiary,” he told the National Post last year while on the run. According to an interview he gave last month with Ars Technica, he also participated in OpPayBack — the Anonymous-led assault PayPal and others over their WikiLeaks blockage.
California attorney Jay Leiderman has represented X, and has gone on the record to compare DDoS attacks with real life sit-ins.

“A DDoS is a protest, it’s a digital sit it. It is no different than physically occupying a space. It’s not a crime, it’s speech,”he told Talking Points Memo in 2011. “They are the equivalent of occupying the Woolworth’s lunch counter during the civil rights movement,” The Atlantic quoted him saying last year.

A DDoS is a protest, it’s a digital sit it. It is no different than physically occupying a space. It’s not a crime, it’s speech

Speaking specifically of the operation against the companies that cut funding to WikiLeaks, the lawyer said online action is equivalent to peaceful protest.“Take PayPal for example, just like Woolworth’s, people went to PayPal and said, I want to give a donation to WikiLeaks. In Woolworth’s they said, all I want to do is buy lunch, pay for my lunch, and then I’ll leave. People said I want to give a donation to WikiLeaks, I’ll take up my bandwidth to do that, then I’ll leave, you’ll make money, I’ll feel fulfilled, everyone’s fulfilled,” he said. “PayPal will take donations for the Ku Klux Klan, other racists and questionable organizations, but they won’t process donations for WikiLeaks. All the PayPal protesters did was take up some bandwidth. In that sense, DDoS is absolutely speech, it should absolutely be recognized as such, protected as such, and the law should be changed.”

Leiderman added that he considers the use of DDoS not to be an “attack” in some circumstances, but actually legitimate protest. 

“[T]he law should be narrowly drawn and what needs to be excised from that are the legitimate protests,” he said. “It’s really easy to tell legitimate protests, I think, and we should be broadly defining legitimate protests,” he said.

New York attorney Stanley Cohen, who is representing one of the accused “PayPal 14” hackers responsible for the Anonymous-led operation, agrees.

“When Obama orders supporters to inundate the switchboards of Congress, that’s good politics, when a bunch of kids decide to send a political message with roots going back to the civil rights movement and the revolution, it’s something else,” Cohen told TPM in 2011. “Barack Obama urged people to shutdown the switchboard, he’s not indicted.”

“It’s not identity theft, not money or property, pure and simple case of an electronic sit in, at best,” he said.

Leiderman added that he considers the use of DDoS not to be an “attack” in some circumstances, but actually legitimate protest. 

So far over 1,100 people agree on, and hope the Obama administration will get their point. Until then, though, Commander X and others face upwards of a decade in prison apiece for violating a clause in the Computer Fraud and Abuse Act that makes it unlawful to “knowingly cause the transmission of a program, information code or command, and as a result of such conduct, intentionally causes damages without authorization to a protected computer.”
With attorneys like Leiderman and Cohen arguing that the damages in questions aren’t quite criminal, the White House may have to respond to the latest petition. The Obama administration is mandated to respond if it can garner 25,000 signatures in the next month. Until then, though, proponents of DDoS as free speech can cite what Jay Carney said when petitioners rallied for the deportation of Piers Morgan for his call to ban assault weapons.

“The Constitution not only guarantees an individual right to bear arms, but also enshrines the freedom of speech and the freedom of the press – fundamental principles that are essential to our democracy,” said Carney.

Meanwhile, exercising constitutional rights by way of overloading web servers isn’t being accepted as such by the government. That doesn’t mean that Anonymous or other so-called ‘hacktivists’ will change their ways: just last month, members of the hive-mind computer collective waged a DDoS attack on the website of the Westboro Baptist Church after the religious group announced plans to picket the funerals of mass shooting victims in Newtown, Connecticut. Anonymous waged a similar wave of attacks on the Church of Scientology in 2008, the result of which landed a number of Anons in prison for violating federal law.

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A client that is seeking to flee the jurisdiction must be advised of the consequences of flight — including being tried, convicted and sentenced in absentia and losing all appellate rights under the fugitive disentitlement doctrine.  See In re Ivker, BD-2004-034 (Mass. 2004): “While helping a client concoct perjurious testimony is a direct fraud on the court, counseling a client to flee deprives the court of any ability to adjudicate the charges.  Failure to appear is itself a punishable offense, and a client who follows such advice is exposed to considerably increased penalties.  See [Massachusetts] G. L. c. 276, § 82A [Failure to appear in court after release on bail or recognizance; penalty].  As such, advising a client to flee seriously undermines the administration of justice, and places the client at considerable risk.”

See also In re Axel, 757 S.W.2d 369, 373 (Tex. Cr. App. 1988) (“for an unknowing defendant to learn of his appellate rights someone must advise him of them”); see also Koons v. State, 771 N.E.2d 685 (Ind. Ct. App. 2002) and Perry v. State 638 N.E.2d 1236, 1239-1240 (Ind.Sup.Crt.1994) (both court’s explaining that it is ineffective assistance under Strickland to advise a client to flee).

It can hardly be disputed that flight from the jurisdiction at the insistence of one’s attorney is distinct from flight based upon a defendant’s own idea of absenting himself from a jurisdiction.  Indeed, the duress that led to the flight, done for financial gain, was itself a criminal act.

fugitive dismantlement doctrine

When a fugitive fails to appear for court proceedings, he or she loses their right to appeal

In In re Young (1989) 49 Cal.3d 257, a defense attorney was given a four year suspension for arranging bail for a defendant who had given a false name to the police at the time of his arrest. (He gave a false name because he was wanted on a robbery case where the victim had died.) The attorney had been arrested and convicted for violating Penal Code section 32, an accessory to a felony in helping the defendant avoid felony arrest. In rejecting the attorney’s arguments against discipline, the court stated:

… petitioner violated his oath and duties as an attorney under sections 6068 and 6103 when he arranged bail for his client under a false name. An attorney’s duty to maintain his client’s confidences does not extend to affirmative acts which further a client’s unlawful conduct. While petitioner admittedly had no duty to disclose that his client gave the arresting officer a false name, he had a duty not to further his client’s unlawful conduct by arranging bail for him under a false name. Petitioner’s actions misled the bail bondsman and the officers of the court responsible for bail and allowed a fugitive wanted for a violent felony to evade prosecution. We conclude that there is sufficient evidence that petitioner acted dishonestly, and that his misconduct constituted a fraud on the court. (Id. at 265.)


In the Matter of DeMassa (Rev. Dept. 1991) 1 Cal. State Bar Ct. Rptr. 737, the Bar court held that the attorney, although affirmatively obligated by his duty to his client to conceal knowledge of the client’s whereabouts, crossed the line from “zealous protector of client confidences” when he allowed the client, then a fugitive, to stay at his house.

In the hypothetical problem, the defense attorney should have advised his client to appear in court as soon as possible. To acquiesce in a client’s desires to remain a fugitive would violate DR 1-102(A)(4)(5) and could result in 25 disciplinary action.

If contacted by the client and advised that he no longer intends to appear in court, it would be advisable to tell him that such a communication may not be deemed protected by the attorney-client privilege because it is a statement of intent to commit a future crime and that at some later date a court can force it to be revealed.  Charles Sevilla

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The probation report filed in this case was correct that petitioner was entitled to the actual credits in the amount of 743 days for the days he spent at home under house arrest, wearing an ankle monitor, during his pre-trial confinement.

In People v. Anaya (2007) 158 Cal.App.4th 608, the court stated that “Section 1203.016 authorizes a low-risk or minimum security offender committed to a county jail to participate in a home detention program if approved by the county or the court.” (158 Cal.App.4th at 611.)  Petitioner was not ordered confined under that statute.  He was ordered confined pretrial pursuant to an order of the court of appeals that had explicit and extensive confinement and custody instructions.  Anaya has two informative passages on the topic, one is 158 Cal.App.4th at 613 and the other is footnote 4.  The Second District Court of Appeal, Division 6, discusses what is and is not custody for purposes of presentence credit: “Anaya’s argument that her home detention program was as, if not more, restrictive than other types of custody for which credits have been awarded also is without merit. Moreover, the electronic monitoring agreement did not restrict her movements. Except for being at home to make a phone call once a day, Anaya was free to go anywhere in the County at any time[;]” and “The lynchpin for the receipt of custody credits is that one be “in custody.”  Citing People v. Reinertson (1986) 178 Cal.App.3d 320, 326, Anaya urges in her petition for rehearing that we have too narrowly defined the term.  Though the term “in custody” has never been precisely defined, it is evident that Anaya was not “in custody” for the purpose of receiving time credit. (People v. Ambrose (1992) 7 Cal.App.4th 1917, 1921-1922; see People v. Richter (2005) 128 Cal.App.4th 575, 579-580 [time spent in work release program in lieu of confinement does not entitle the participant to custody credit].)


Affixing an ankle monitor

Anaya was also sentenced under statutes where probation was eligible and a jail sentence was not mandatory. Because Luster was sentenced under the scheme contemplated in sections 1170 and 667.6, he was subject to mandatory custody time, therefore triggering the provisions of section 2900.5 subds (a) and (f).

The Anaya court affirms the continued validity of People v. Lapaille (1993) 15 Cal.App.4th 1159 in the wake of the 1999 amendments to section 2900.5. The logic of Lapille, that petitioner was in custody, carries the day, as “custody” and not monitoring is the gravamen herein.  Petitioner was restricted even more than Lapille was.  He was confined to his home with an ankle monitor 24 hours a day, allowed to leave only for pre-arranged medical appointments and for scheduled court dates. Accordingly, he is entitled to credit for his presentence time spent on ankle monitoring.  That credit is to be day-for-day.

Therefore, under the case law of People v. Lapille 15 Cal.App.4th 1159, 1169-1170, he is entitled to credit for those days.[1]

[1] People v. Lapille 15 Cal.App.4th 1159, 1169-1170:  Section 1203.016 provides that defendants on electronic home detention must remain in the interior of their homes during hours designated by the program administrator, admit the administrator to their homes at any hour to verify compliance with the program, wear an electronic monitoring device, be subject to arrest without warrant if there is reasonable cause to believe they have violated program rules, and abide by other rules and regulations imposed by county authorities. However, such defendants may also be permitted to seek and retain employment outside the home, attend psychological counseling sessions and educational or vocational classes, and go to medical and dental appointments.

Based on the limited record before us, we conclude that defendant in this case was subject to restraints at least as confining as those placed on persons in electronic home detention programs, so that his house arrest was just as “custodial.” The trial court ordered defendant to remain at his home, except for visits to his lawyer and court appearances. At some time during his lengthy home confinement, the court gave him permission to leave his home to walk his daughter to and from the school bus. The probation department or release clerk called him to verify that he was complying with his confinement. There is no indication that defendant ever left his home to attend medical or dental appointments, or to participate in any counseling sessions. He was on complete disability due to his heart condition, and thus did not work.


House arrest

Based on the above comparison, we hold that defendant in this case is entitled to custody credits for preconviction custody pursuant to section  2900.5, subdivision (a), as amended in 1991, under the state and federal equal protection clauses. The only real differences between this defendant’s confinement and that of one on electronic home confinement is that one is based at home under O.R. release, and the other on a statutory program; and that one’s location is verified by electronic tracking, while the other’s is based on telephone calls to the residence. These procedural differences are not legitimate bases for treating defendant differently from those placed in electronic home detention programs pursuant to section 1203.016. (E.g., People v. Darnell, supra, 224 Cal.App.3d at p. 809.)


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