The ongoing COVID-19 Epidemic (caused by the coronavirus) is affecting every person and business in California and the US. The effect on the criminal justice system is particularly severe: the police, the prosecutors, and the county courts have made huge changes in response to the epidemic. Many government offices shut down their operations completely or slowed the response. Other adopted massive changes to procedure to minimize human interaction and to increase enforcement affecting criminal cases and DUI defense:
On March 4, 2020, Governor Newsom declared a state of emergency in California in response to the COVID-19 pandemic. This was followed by multiple shelter-in-place orders issued throughout California cities and counties. These orders required residents to stay at home and maintain social distancing. This was followed by March 23, Chief Justice’s order, to suspend trials by 60 days. This was followed by March 27 Governor Newsom’s order suspending all statutes that are inconsistent with the social distancing orders. HERE ARE THE SPECIFICS:
JAIL EARLY RELEASE DUE TO CORONAVIRUS: THE GOOD NEWS
On March 24, 2020, because of the coronavirus epidemic, the Los Angeles County Sheriff’s Department released 1700 inmates from the county jail – in the hopes of slowing down COVID-19 infection rates. LA County is known to release inmates early – this release, however, was in addition to the scheduled early releases. The release of inmates covered only inmates who were serving time for non-violent offenses and have less than 30 days left on their jail sentence (this was later increased to 60 days). So, a person who is serving any jail time for a DUI is likely to be released early (not including DUI with injuries). This is a good decision and will save the lives of inmates (many of whom suffer from various illnesses). Recently, a nurse who works for Los Angeles County Jail died from COVID-19. Being so close to other people increases the risk of infection, case in point, is a federal jail in Lompoc, where nearly 70% of inmates tested positive for coronavirus
If you or your loved are in jail – consider asking the court for a bail hearing as soon as possible. It is well known that the COVID-19 infection rate is higher in close quarters. This can be a major problem in jails. Here is the health experts’ opinion that ICE is violating federal guidelines regarding COVID-19 by grouping immigration detainees together. Recently, the failure of the US government to respond quickly to the pandemic on the US Battleship, USS Roosevelt, by keeping sailors close together, resulted in increased infection, unnecessary suffering, and even death to some sailors.
California’s 35 state prisons scheduling the release of 3,500 inmates due to the COVID-19 epidemic. The California Prisons also stopped transfers of all inmates from the county jails to CDRC. If your loved one was waiting to be transferred to the State Prison – he is out of luck for now. Sex offenders and domestic violence offenses are not eligible for early release due to the epidemic. Those prisoners will be released on their release dates.
The Orange County Jail followed suit but released 130 inmates early to reduce the chance of infection due to COVID-19. This “early release” puts the Orange County jail population at the lowest number in a decade -at around 4,450. Currently, the Orange County Jail has 150 inmates in quarantine: this is after 5 inmates who tested positive for COVID-19 could have infected their dorms.
THE POLICE AGENCIES AFFECTED BY CORONAVIRUS:
Los Angeles County Sheriff’s Department stopped arresting people on warrants of less than $50,000.00. If you have a warrant of less than $50,000.00 – you will be cited out. This is good news! Another good news is the court’s changes to their approach to bail and the adaptation of a statewide emergency order which will release many inmates (pending the outcome of the case) on their own recognizance. This rule will apply to all misdemeanor and lower-level felony offenses.
As of April 2, 2020, the Los Angeles Police Department has 43 employees who tested positive for the coronavirus. Out of 43 employees, 2 remain hospitalized, with 1 returning to duty after recovering. Riverside County reported the passing of 2 deputies from the COVID-19 virus. This is very sad – as one of the deputies contracted the virus after transporting a jail inmate to a hospital. Also, five of the San Bernardino County deputy sheriffs tested positive for the coronavirus.
THE COUNTY COURTS CHANGES DUE TO CORONAVIRUS:
All county courts are adapting procedures to reduce operations. Orange County and Riverside County courts are closed until further notice. The Orange County Court declared that until the courts are open, all days are “public holidays”, and continued all hearing to a day after they will re-open the court system. Los Angeles County Courts and the Ventura County Courts reduced their operation to only emergency types of hearings, such as in-custody arraignments. All jury trials are canceled and most non-essential hearings, such as pretrials, are continued for 90 days. Los Angeles County Court’s clerk offices are closed to the public effective March 23rd. All traffic matters are continued for 30 days – including trials and other matters. LA Court presiding judge closed all courtrooms that are not engaged in essential functions and extended many statutory rights relying on California Government Code section 68115. GC 68115 gives the court broad powers to extend many deadlines in cases of emergencies (which explicitly cover epidemics). For example, the right to have a preliminary hearing was extended first from 10 days to 15 days under California Government Code section 68115(a)(9) – only to be extended again by the judicial council of California to 30 days on April 6, 2020. The right to have a jury trial is extended from 30 days to 60 days (GC 68115(a)(10)). A right to see a judge after an arrest is extended from 48 hours to 1 week. Now, if you are arrested, you don’t have a right to see a judge until 1 week later! We believe that the government now is exceeding the scope of its emergency powers and the scope of the California Government Code section 68115
On April 29, the Chief Justice extended the trials by additional 30 days (for a total of 90 days) counting from the initial PC 1382 last day. One of the first trials in California that was held after the State reoppened resulted in quaranteen for the judge (link). The case was dismissed because of witness unavailability but the jurrors were sitting at least 6 feet apart from each other wearing masks
The criminal courts are attempting to reopen amid the COVID-19 epidemic. It is unclear how the courts will accommodate jurors in court during the epidemic. It appears that the public will be excluded from jury trials and the jurors will be spaced out in the audience and wearing masks. In our opinion, having a jury trial to the exclusion of the public violates the US Constitution because there is a right to “public trials”. Therefore, a proper objection must be made at the first instance of the court setting a jury trial date. Los Angeles DUI defense attorney also thinks that having DUI trials during the pandemic jeopardizes the public and affects several constitutional rights of the defendants.
Both the defendant and the People have “speedy trial rights”. This means that all cases must go to trial within 60 days for felonies, 45 days for misdemeanors out of custody, and 30 days for misdemeanors in custody. If both parties agreed to “waive time” then the trial dates can be extended. Under California Penal Code 1382, the court has 10 days to bring the defendant to trial outside of the statutory (60, 45, or 30 days) (See Penal Code sections 1382(a)(2)(B) for felonies and 1382(a)(3)(B) for misdemeanors). If your case is not brought to trial within 10 days of the last day, you can get a dismissal under Penal Code section 1382. However, the Chief Justice’s March 23 order extended by 60 days the speedy trial rights.
The courts of Appeal sided with the government (and the courts). In a recent decision (Stanley v. Superior Court) the challenge to Governor’s orders was rejected. Stanley argued that the Governor can not make orders that affect the judiciary because it violates the separation of power doctrine and the US constitution. The decision in Stanley gives the court additional powers under “good cause” powers to continue. Under In re Venable 86 Cal.App 585, the court can continue cases for public health emergencies. This decision is from 1927 permitting the court to continue a case during a 1927 epidemic of polio. Under this decision, the court does not need the Governor’s orders to continue a case during an epidemic. Under People v. Tucker (2011) 196 Cal. App.4th 1313, the court continued a case for 1 week for a defendant in quarantine due to the H1N1 epidemic. The court held “PUBLIC HEALTH CONCERNS TRUMP THE RIGHT TO A SPEEDY TRIAL“
What was interesting in Stanley decision is that the court mentioned that the defendant did not allege the condition of his confinement pose a particular risk to him. Sounds like this is a way to go for any future challenge if defendants are in custody.
LOSS OF RIGHTS DUE TO COVID-19: THE BAD NEWS
This criminal defense attorney is concerned that the COVID-19 national emergency affected the constitutional and statutory speedy trial rights. Governors, Mayors, and even County Health Officers are issuing orders (without the approval of the legislature) criminalizing conduct. You can now get arrested for a violation of a “stay-at-home order” or being in a group of 10 people (here). The police think that they now have the power to stop a car because they suspect you are not on an “essential business”. To DUI and criminal defense attorneys, this is an example of abuse of power. This can easily turn into a DUI investigation, an arrest, a search of your car, or worse. The police can say that the national emergency requires criminalizing previously permitted activity. We disagree: governors, mayors, and health officers do not have this power. Only the legislature has the power to make new laws. It is not a crime to surf because it violates “stay-at-home” orders (here). An arrest like this is shameful and can ruin a person’s record. We can wait and see what happens next – but the trend is the loss of our rights. Contact us if you are arrested or cited for a criminal case during the COVID-19 epidemic. Over the weekend, San Diego Sheriff’s Department issued 22 misdemeanor citations to persons who violated the Governor’s Newson stay-at-home order. The citations are for “picnics” and “sunset-watching”. Some of the citations are issued to persons who were sitting in their car in Encinadas and watching the sunset. There was no threat to the public from this! This was an unnecessary exhibition of police power over its citizens. Misdemeanors are serious crimes that can result in loss of immigration benefits, loss of jobs, jail sentences, etc. These sunset watchers could have been arrested too! Because of the changes in speedy trial rights – (you no longer have the right to see a judge within 48 hours), they can have ended up in jail for a week or longer waiting for the criminal justice system to process them. This is an unprecedented and troubling use of the state’s police power – used not to help the persons in need but to label those who disobey as criminals and to force them into the criminal justice system. The State police power is rooted in the Constitution. We are not at the level where such powers are authorized. If you are arrested during the coronavirus (COVID-19) epidemic, contact us. We will help you. For immediate assistance with your criminal case or DUI during the COVID-19 epidemic call us directly at (818) 921-7744.