New Legislation: CA’s new Felony Murder Rule

Imagine a manager of an electronics store stays late one night to do paperwork. He doesn’t realize that his employees left a side door unlocked. John and Chad are walking along and happen to see the unlocked door. They can see from the window that the office door is slightly closed, with a light on inside. Whispering, they decide they can quietly sneak in, grab a couple of game consoles with controllers and a few games, and probable sneak out without ever being noticed. They manage to get in and grab the items, but the manager hears a noise and comes out. Chad suddenly pulls out a gun and fires a warning shot in the air to scare the manager back- but the bullet hits a metal pole and ricochets into the manager, killing him instantly.

Under the Felony Murder Rule, even if John didn’t fire the gun, and even if Chad didn’t intend to hurt the manager at all, and even if John had no idea Chad had a gun at all: both Chad and John can be convicted of First Degree Murder, and both can even face the death penalty for it.

California follows the same strict FMR, but effective January 1, 2019, SB 1437 (Skinner) will change accomplice liability for murder, such that proof of malice will be required to be convicted of murder. This does not apply if the victim is a police officer.

Starting in January, any participant in certain specified felonies is liable for first-degree murder only if one of the following is proven:

  1. a) The person was the actual killer;
  2. b) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree; or,
  3. c) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as specified.

For Chad in the story above, he may still possibly face charges under either (a) or (c) above. For John, however, he will probably not face murder charges unless his own “reckless indifference to human life” can be proven.

Also, for people currently serving time under the old, strict FMR, this bill provides a detailed procedure by which the convicted may have his or her case reviewed under the new law.

If you or a loved one are facing a possible conviction, or are currently serving under the FMR, I am here to help you navigate your options under the new legislation.

EVENT! 4/20 SCBA Cannabis Symposium

Friday, April 20th, the Sacramento County Bar Association is hosting the Cannabis Symposium, with special guest speakers explaining the new laws and regulations regarding almost every aspect of cannabis. I will be presenting the first session’s topic, Prosecutions after Prop 64. MCLE credit is available. I look forward to seeing you there.

When: 8:30am to 5pm, Friday, April 20

Where: SCBA Event Center, 

425 University Ave., Suite 120

Register here: 

How to Vote in California

This is a detailed explanation of the procedure of how to vote in California. Other States have different election laws and procedures, which are usually found on their Secretary of State’s website.

Voting seems extremely complicated at first because there are so many rules regarding voter eligibility, access, method, and integrity of the election system. Simply put, however, it’s really only a three-step process:


  1. Be Eligible to Vote,

  2. Register to Vote, and

  3. Vote.


First, you must have the right to vote in California. Our State is much more permissive than other States in that we allow pre-registration and we allow certain circumstances of law offenders to vote, whereas other States do not. See “Eligibility to Vote” below. Then you must register to vote- I’ve included ways to register, pre-register, and how to vote if you missed the registration deadline, under “Register to Vote” below. Finally, in section three (Vote!), you may either vote by mail or at your polling location on Election Day.

Remember: like any muscle in your body, you must protect and exercise your rights in order to preserve them. If you register to vote, and then do not actually vote, you may need to register again. Generally, this is because each County and State elections office has different procedures and timelines for purging their voter rolls.


1. Eligibility to Vote

The United States Constitution provides that we have the right to vote. Each State has it’s own additional rules. In California, we have the Voter Bill of Rights. See:

Who Can Register


2. Register to Vote

The voter registration form, whether online or by paper, asks a lot of personal information. Generally, this is to ensure that you vote only on the candidates and measures that are relevant to you, based on exactly where you live and the information you provide. It also tries to ensure that no one votes more than once, while preserving the individual right to vote of persons of the same exact names or addresses. First I’ll explain how to register, and then I address any concerns you may have about the personal information requested on the form.

How to Register

 When to register

  • The deadline to register or re-register to vote for any election is 11:59:59 p.m. Pacific Time on the 15th calendar day before that election.
    • For the June 5th, 2018 Statewide primary election, you must be registered to vote by May 21, 2018
    • CA Secretary of State online registration dates calendar:
  • You Must re-register whenever you:
    • Change addresses (move)
    • Change your party
  • You Should re-register if you haven’t voted in a while, because voter rolls are routinely “purged.” Purging at its best eliminates duplicates and those who may have moved away or died.

If you are concerned about providing your personal information

  • The online registration requires your personal information to submit your registration.
  • If you complete a paper voter registration card and do not include certain unique information, such as the last four digits of your social security number, you may be asked to provide additional identification at your polling location.
  • If you vote by mail, particularly if it is your first time voting, the Secretary of State recommends that you include a copy of your identification with your ballot.
  • Voter identification or qualifications requirements have routinely and historically been used to prevent or deter certain categories of citizens from voting.
  • If sharing your address could put you in life-threatening danger, you may be eligible to register to vote confidentially.


3. Vote!

You may either vote by mail, or vote in person. Even if you choose to vote by mail, if you forget to mail your ballot in time, you may still vote on election day. If there is any problem with your registration, you may also vote provisionally. Here are the details of each method:

Vote by mail

  • You will receive a paper ballot in the mail when you have registered to vote by mail. Complete the ballot by filling in the bubbles of your preferences, and return the ballot by mail. If you forget to mail it in on time, you may also drop it off to any polling location on Election Day.
    • Vote-by-mail ballots must be postmarked on or before Election Day and received by your county elections office no later than 3 days after Election Day.
    • If you are not sure that your vote-by-mail ballot will arrive in time if mailed, you may bring it to any polling place in your county between 7:00 a.m. and 8:00 p.m. on Election Day. Tell the clerks at the polling location that you have a vote by mail ballot, and they will tell you into which box to drop your ballot.
  • To request a vote-by-mail ballot, your application must be received no later than 7 days before Election Day. You can:

Vote in person

Provisional voting

  • If you missed the registration deadline (during the period of 14 days prior to Election Day through and including Election Day), you can go to the office of your County Elections official to conditionally register to vote and then vote a provisional ballot.  This process is called Conditional Voter Registration (CVR).  
  • In order to conditionally register, you must first complete an affidavit of registration (also known as a Voter Registration Card).  After that you will be given a CVR provisional ballot to vote. 
  • Once the county elections official processes the affidavit of registration, determines your eligibility to register, and verifies your information, the registration becomes permanent and the CVR provisional ballot will be counted. 
  • You may also receive a conditional voter registration form and/or a provisional ballot at the polling location, if your name is not found on the voter roll.


More information


Check your voter registration status and polling location here:

  • Your polling location may change. It is best to double-check your location on election day with either your County or the Secretary of State.

If you missed the registration date, or if you show up to the polling location and your name is not on the list:

  • You can “conditionally” register and vote at the polling location (or at your county elections office after the 15-day voter registration deadline), and vote with a “Provisional Ballot.”
  • Your provisional ballot will be counted only after the elections official has confirmed that you are a registered voter and you did not vote anywhere else in that election. The poll worker can give you information about how to check if your provisional ballot was counted and, if it was not counted, the reason why.


Fingerprints- Reasonable Expectation of Privacy?

It wasn’t too long ago that a story hit the papers about a woman who used her sleeping husband’s fingerprint to unlock his phone. As she suspected, he was cheating on her- and on finding proof of his affair in his phone, she had such an enraged fit that the plane they were on had to make an emergency landing.

Link: Flight Diverted After Passenger Discovered Husband Was Cheating

Intrusion of Privacy

Although they were married, and in spite of the fact that the husband was actually cheating on his wife, the wife’s use of her sleeping husband’s fingerprint seems to fit all of the elements of the classic civil tort, Intrusion of Privacy. Intrusion of privacy occurs when (1) the defendant intrudes into the private affairs of the plaintiff; (2) a plaintiff has a reasonable expectation of privacy; and (3) the intrusion is highly offensive to a reasonable person. Considering the husband and wife have greater concerns (and the event did not take place in the United States), it’s unlikely that there would be any such action in court. However, this story helps us to think about privacy: do we have a reasonable expectation of privacy in our cell phones and the content inside, even from our spouse?

Reasonable expectation of Privacy from Government eyes

What about privacy from the government? Should the police be allowed to go through your phone, read your emails and texts, look at your photos (even those you deleted), and sift through your private messages on social media? The Supreme Court has firmly held that we do have a reasonable expectation of privacy in the digital contents of our cell phones, and that police must have a warrant in order to search them. Link: Riley v. California (2014) 134 S.Ct. 2473.

Warrant requirement

A warrant allows the police to search possibly all of those things on your phone, but here’s why a warrant is important. First, a warrant is issued by an impartial magistrate- one who has an overriding interest in both our individual Constitutional rights and in promoting legal justice and peace as a whole. Second, the warrant request by the officer to the judge must state probable cause. Probable cause requires the officer to have sufficient facts and circumstances as would lead a reasonable person to believe that evidence relating to criminal activity will be found in the location to be searched. There must be enough evidence to lead to a belief that criminal activity has or will take place.

Compelling a defendant to decrypt digital information

The 5th Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself.” The issue is whether compelling a defendant to decrypt his digital content (by supplying a password or passcode) is requiring a defendant to be a witness against himself. Courts make a leap from witness to testimony and never look back: witnesses provide testimony, oral or written, and cannot be compelled to do so.

Last year, the Third Circuit Court of Appeals in Pennsylvania held that compelling a criminal defendant to decrypt his iPhone, Mac computer, and external hard drives was “a necessary and appropriate means of effectuating the original search warrant,” and that “for the purposes of the Fifth Amendment, any testimonial component of the production of decrypted devices added little or nothing to the information already obtained by the Government” Link: United States v. Apple MacPro Computer (3d Cir. 2017) 851 F.3d 238, 246-48. It’s interesting that the Court avoids expressly stating that digital content is not testimonial in nature, and gives some small hope for the future. However, the Supreme Court of the United States denied certiori in this matter, and no clarification or stronger holding is available.

In a similar situation, a Florida case, State v. Stahl, held that compelling a defendant to surrender the passcode to his phone was not testimonial in nature because it “did not compel defendant to communicate information that had testimonial significance under the Fifth Amendment’s protection against self-incrimination, providing the passcode would not be an acknowledgment that the phone contained evidence of video voyeurism, and the state had a warrant to search the phone” Link: (Fla. Dist. Ct. App. 2016) 206 So.3d 124, 128, emphasis added. Simply put, forcing a defendant in Florida to provide his passcode is not self-incrimination so long as there is a warrant, and so long as the defendant is not also forced to “acknowledge” the evidence in the phone. 

Touch-ID fingerprints to Unlock Phones

Recently, several courts have been asked to provide warrants to allow the police to seize the use of our fingers in order to unlock touch-ID fingerprint locks on our phones. This requires forcing the defendant to temporarily surrender their finger to be placed onto the phone in order to unlock it. The California case of Paytsar Bkhchadzhyan that has been popping up in legal blogs (link here) and professional interest forums over the last year, but is still unretrievable- either because the charges are still sealed or have still not yet been filed. Also see: Link to LA Times Article

Similarly, in an unpublished but retrievable case, one Federal District court in Illinois decided in September, 2017, that fingerprints are not testimonial in nature, and therefore do not belong within the Constitution’s 5th Amendment protections. For this Illinois court, the logic again is that witnesses provide testimony, which can be written or spoken. Fingerprints, like photographs, voice recordings, and blood draws in DUI cases are said by that court to be non-testimonial, and therefore are free from the 5th Amendment’s protections. There is a leap, however: providing access to encrypted phones is also providing access to all of the defendant’s statements, by email and “private” messages.


The issue has not yet been completely resolved, but so far American Courts have been leaning towards allowing warrant-carrying police to force defendants to decrypt their devices and to force defendants to unlock them with their own fingers. The Framers of the Constitution could not have imagined modern technology with fingerprints unlocking iPhones, or with password encryption of computer data. If they had, they may have worded the Fifth Amendment’s prohibition that no person “shall be compelled in any criminal case to be a witness against himself” in a way that would protect our rights more strongly.

I am keenly interested in this subject, and have only given a brief overview here. If you are interested in this area and would like to explore more, please see Wiki’s article on “Key Disclosures,” which gives a world wide overview of legal viewpoints.




New laws affecting vehicles in California

It’s only three more days until 2018, and the California Department of Motor Vehicles (DMV) has shared the following regarding new laws and changes to existing law. Unless stated below, these changes take effect January 1, 2018. 

Cannabis Use in Vehicles  

(SB 65, Hill) 

This law prohibits smoking or ingesting marijuana or marijuana products while driving or riding as a passenger in a vehicle. The DMV will assign negligent operator point counts for this violation. In addition to the California Driver Handbook, the DMV also will revise the Motorcycle Handbook and the DMV’s website to include information relating to marijuana violations. 

Buses and Seatbelts  

(SB 20, Hill) 

Beginning July 1, 2018, this law requires a passenger on a bus equipped with seat belts to be properly restrained by a safety belt. This law also prohibits a parent, legal guardian, or chartering party to transport on a bus, or permit to be transported on a bus, a child who is at least 8 years of age but under 16 years of age, unless they are properly restrained by a safety belt or an appropriate child passenger restraint system that meets federal safety standards. A violation of these provisions is an infraction punishable by a fine. 

DUI – Passenger for Hire  

(AB 2687, Achadjian) 

Beginning July 1, 2018, this law makes it unlawful for a person to operate a motor vehicle with a blood alcohol concentration of 0.04 percent or more when a passenger for hire is in the vehicle at the time of the offense. This will mean that drivers of passenger for hire, in their personal vehicles, will be held to a higher standard of safety while transporting people. The DMV will suspend a person’s driver license if a conviction is added to their record. Commercial driver license holders will receive a disqualification. 

Parking Violations for Registration or Driver License Renewal  

(AB 503, Lackey) 

This law makes changes to a requirement under which vehicle registration renewal and driver license issuance or renewal is not granted for having unpaid parking penalties and fees. The law creates a process for low-income Californians with outstanding parking violations to repay their fines and penalties prior to the parking violation being reported to the DMV. The law also allows the registered owner of a vehicle to file for Planned Non-Operation status when unpaid parking penalties are on the vehicle’s record. It also allows for someone with outstanding parking penalties and fees, to obtain or renew a driver license.