Author Archives: Forest Wilkerson

About Forest Wilkerson

Forest graduated from the University of San Diego in May of 2003, and has had a varied and interesting career. After law school, Forest did an extended internship at the United Nations International Criminal Tribunal for the former Yugoslavia in The Hague, the Netherlands. She was assigned to the lead prosecutor on the team prosecuting Serbian Dictator Slobodan Milosovic for war crimes.

Much Needed Revision Possibly Coming to “Transportation” Drug Law

California Health and Safety Codes 11352 and 11379 prohibit “transportation” of controlled substances (most importantly, cocaine, heroin, and methamphetamine), and provide for more prison time than simple possession of the drugs, .  The legislature never gave a specific meaning for “transportation”, though reasonable and rational people can infer that the enhance penalties provided by the statute should only be applied to defendants actually trafficking in drugs and transporting drugs with the intent to sell them.  So a particularly cruel and idiotic string of court decisions has held that anybody simply moving any quantity of drugs for any reason is guilty of “transportation”.  (See, e.g. People v. Ormiston (2003) 105 Cal.App.4th 676.  This case approves a transportation conviction for a defendant who had drugs on him while walking across a parking lot.  Ormiston also gives an excellent summary of the case law).

These statutes are particular favorites for bullying prosecutors who want to pointlessly lock drug offenders up longer or want to arbitrarily exclude defendants from drug treatment programs – no treatment programs for anybody charged with transportation.  I have personally represented dozens (hundreds?) of defendants charged with transportation for having small quantities of drugs in their car or in their pocket while riding a bicycle.

AB 721 provide a little sensible reform, allowing prosecutors to only charge transportation when the narcotics are actually intended for sale.  The bill has been approved by the legislator and is heading to Governor Brown’s desk now.

Recent DUI Checkpoint News

There have been a lot of recent articles in the local media about the massive “Avoid the 30” anti-DUI campaign in Riverside County.  Much of the stepped-up enforcement has taken the form of DUI checkpoints.  Check out these stats published in a recent Press-Enterprise article:

At a Temecula checkpoint:  1,220 cars stopped by armed government agents, 2 drivers arrested on suspicion of DUI

At a San Jacinto checkpoint: 468 cars stopped by armed government agents, 3 drivers arrested on suspicion of DUI

At a Chino Hills checkpoint: 1396 cars stopped by armed government agents, 1 person arrested for DUI

That makes for a total of 3,084 cars stopped by police, and in none of those stops did police have probable cause to think that the drivers were doing anything wrong.  Total DUI arrests amounted to 5.  The article does not mention how many cases were filed by prosecutors as a result of those arrests.

None of the articles about Operation Avoid the 30 mention the cost of the operation, or any single DUI checkpoint.  What was the cost to the taxpayers of netting that one DUI arrest in Chino Hills?

700 DUI Arrests in Riverside County Over Last Two Weeks!

Operation “Avoid the 30” netted 700 arrests just over the past two weeks.  “The 30” refers to the number of participating agencies.  This was a pretty large operation:

The end-of-summer Riverside County Avoid the 30 campaign — named for the number of police agencies involved — got under way on Aug. 16 and went through Labor Day.

Saturation patrols and sobriety checkpoints were deployed in a number of locations, including Banning, Beaumont, Corona, La Quinta, Moreno Valley, Murrieta, Norco, Palm Springs, Perris, Rancho Mirage, Riverside and Temecula.

The above-cited article article clearly touts this as a success, but there is no mention of how many DUI cases were actually filed or how this two-week period compares to a “normal” two-week summer stretch without all the extra law enforcement.

Big Announcement!

I am bringing a partner into my firm to share my ever-increasing case load. Joshua Mulligan started with me on August 22.  He is an experienced attorney coming to join me after 8 years as a Public Defender.  Josh has handled thousands of cases, ranging from DUI to homicide, and has taken over 60 cases to jury trial.  Josh has achieved incredible results for his clients over the years, including dozens of “not guilty” jury verdicts.  We will be working all cases as a team and our clients will be lucky to benefit from our combined experience.  Look for a complete website renovation to reflect this change soon.

Cleaning Up A Criminal Record

This is an article I wrote for this month’s La Quinta Gem newspaper:

Everybody makes mistakes, and sometimes those mistakes result in a criminal record. This record can follow a person for years, and with technology making this information so readily available, it can have the effect of keeping people from employment or other programs. Many people lose hope that they will ever be able to put their mistakes behind them, but California law provides for relief for many to clean up their record via the expungement process.

Expungement is a process whereby a person who was convicted of an infraction, misdemeanor, or felony, who received a probationary sentence, can request that the court “expunge” their record. When the court expunges a criminal record, the court will re-open the case, set aside the conviction, and dismiss the case. This allows an individual to tell employers and others inquiring that they have never been convicted of a crime. (Note: Convictions may still need to be disclosed to licensing or governmental agencies. If you have a question about whether you need to disclose your conviction, always consult an attorney.)

To be eligible for an expungement for a crime committed in California, there are certain minimal requirements:

  1. The individual must have been convicted in a California State Court, as opposed to Federal Court;

  2. The individual must not have gone to state prison, and must have received probation or a “terminal disposition” as a sentence;

  3. The individual must have successfully completed probation, which includes paying all fines and/or restitution, completing community service or required jail time, etc. In the case of a terminal disposition, the individual must wait for one year after sentencing to apply for expungement; and

  4. The individual must not have admitted or been convicted of any violation of probation.

If you meet these requirements, you are eligible to have your case expunged as a matter of law. This means that the judge must expunge your record upon request.

There is still hope for an expungement, however, if you violated probation, but the judge is no longer obligated to grant the expungement. Instead, upon filing a motion for expungement, the judge will review certain factors, such as the seriousness of the underlying charge, the seriousness of the violation, the individual’s contributions to the community, criminal history, behavior while on probation, future prospects, and any other factors the judge feels are important, and will decide whether to grant the expungement.

Even if an individual is still on probation, but their probation and/or criminal record is keeping them from getting a job or applying to scholastic programs, etc., a judge has the power to terminate probation early and expunge a criminal record if all of the aforementioned qualifications are met. If an individual requests early termination of probation, they usually must show positive changes in their life and behavior since the conviction. They generally must also show that they have attempted to make positive changes in employment or education, and have been prevented from doing so as a direct result of the conviction and/or current probationary status.

Anybody who is facing criminal charges or who has been convicted of a crime needs to be aware of this procedure so that a past mistake doesn’t preclude a successful future. If you are charged with a crime or have a prior conviction, it is very important to consult an attorney about this process to protect your future.

Forest Wilkerson is a criminal defense attorney located in Old Town La Quinta, and was recently honored as one of the top attorneys in the Coachella Valley by Palm Springs Life magazine.  She handles felony and misdemeanor cases, and will take cases from pre-arrest through appeal.  For more information call her at 760-777-4322 or visit her website at www.forestwilkersonlaw.com.

Fed Kicks

Whenever I am at the Larson Justice Center in Indio, one of the major topics of conversation is “fed kicks”.  A fed kick (also called federal release) is an early release from the county jail because the jail is full.  Under a long-standing federal court order, the Riverside County Jail must release inmates after it reaches a fixed population cap.  In 2012 Riverside County released over 6,000 inmates early.

Criminal defendants and inmates in the jail seem to be comparing notes, trying to figure out how to game the system and figure out the best way to deal with their cases, given the reality of federal releases.  The most important thing to realize about a fed kick is that it is in no way guaranteed.  Many people will serve their entire sentence.  This is not a fair process, just because one person was kicked from the jail does not mean that the next guy will identical charges will also get out.  The number of fed kicks will be in large part based upon the number of arrests coming in.  For example, a big gang raid will mean that many inmates need to be released to make room for the new arrestees.

These are the most important things to keep in mind when trying to figure out if a person will be federally released:

1) The fed kicks seem to apply to both sentenced inmates (who have already gone to trial or took a deal) and to inmates held on bail pending trial or plea.  At one time I read the sheriff was prioritizing fed kicks for people pending trial because they are “innocent until proven guilty”.  I don’t know if this in an official policy or if they continue to make this a priority.

2) A person with other holds or warrants will not be released.  Anybody with an immigration or ICE hold is going to be stuck in county jail.  As is any individual with a warrant from another county.

3)  Only certain categories of crimes seem to be eligible.  Broadly, non-violent theft crimes and drug crimes seem to be eligible for early release.  People charged with domestic violence, sex crimes, and  violent crimes are going to stay locked up.

4)  Don’t count on federal release if the inmate is a gang member or registered sex offender.

How to Choose a Ciminal Defense Attorney

Often, when an individual needs a criminal defense attorney, they are nervous and overwhelmed at the prospect of the charges they are facing. Here are some tips to find the right attorney to fit your needs.

Do you need a criminal defense attorney? You will only need a criminal defense attorney if you’ve been arrested or received a citation to appear in court to face misdemeanor or felony charges. Victims of domestic violence or sexual assault who do not want to testify can also seek the advice of a criminal defense attorney to protect their rights.

What type of attorney should I hire? If you are facing charges, you will want an attorney whose law practice is focused on criminal defense. Other attorneys may have criminal defense as a small part of their practice, but you want to ensure that your attorney has the experience and dedication to handle your case.

What is the most important quality to look for in an attorney? Trust. Trusting your attorney is essential. If you don’t trust your attorney, you are likely to be wary of their advice, right or wrong. In criminal defense, sometimes cases resolve with higher sentences for a defendant because they did not trust the advice of their attorney. It can also cost a client additional time and money to seek out the advice of a second attorney. Make sure you are comfortable with your attorney’s advice from the day you meet them.

What questions should you ask?  You should ask about your potential attorney’s experience with the charges you are facing. You want to ensure that your attorney has handled similar cases in the past and you need to be comfortable with their ability to handle your charges. You also want to discuss the fees and determine exactly what is included. A good criminal defense attorney should be able to spot the issues involved in your case during your first meeting and will tell you if they will need to file additional legal documents to reduce bail, suppress the evidence, get additional discovery, etc. Once the attorney spots the issues, they should be able to tell you what will be included in the fee so that later you are not paying unanticipated additional fees. If you are not comfortable about their conclusions, then re-read #3 above and move on to the next potential attorney. Finally, ask whether or not your attorney has conducted trials. The best way for an attorney to prove they are a strong advocate, is to show their skills in court. Attorneys who have gained the respect of prosecutors tend to achieve better results for their clients. You don’t want an attorney to use your case as a test of their skills – leave that for the next client.

Can I negotiate the fees? Yes, but there may not be much wiggle room. Attorney’s will generally calculate the time a case might take by a standard hourly rate that is based on their experience and needs at that time (which they may or may not share with you) to determine the fee. Be nice when you negotiate: it’s a well-known secret that attorneys quote a higher fee if they foresee difficulty.  Alternatively, if you are genuine and appear to be able to work with the attorney, rates can lower. Criminal defense attorneys are usually kind-hearted people who chose their field in order to help people. If you are kind and work well with them, they will work with you.

Three Strikes Reform

In my legal practice I have long represented people charged with “stirke” offenses facing life sentences.  These are some of the most difficult and heartbreaking cases to work on.

Many of the prior “serious” or “violent” charges do not really seem that bad, and often the choice of what makes a serious or violent charge is arbitrary.  For example, stealing a bicycle from an attached garage is a strike offense (burglary) while stealing the same bicycle directly from a little girl is not a strike (grand theft person).  Criminal threats was often a common plea to domestic violence charges prior to the three strikes offense (before three strikes, it was a less serious than domestic violence) – so, perversely, a person with a more serious domestic violence case did not end up with a strike, but the guy with a defensible case took a plea bargain and ended with a strike!

Three strikes was never based on serious debate or solid research and experimentation into the causes and prevention of crime. Instead, it was enacted by voters as an emotional response to a particularly horrific crime that still happens today. That said, there is a bit of improvement based on the modest reform passed last November – by a margin of 2/3 in this county.  As a result, many of the worst and most horrible excesses of the three strikes will be avoided in the future, but it’s still not enough.

Unfortunately, the future is still murky for the several thousand people currently serving life sentences under the old law.  These individuals must apply for re-sentencing and have a hearing before the trial court.  Even if the person would absolutely NOT be eligible for a life sentence under the new rules, the prosecution can still keep these poor shoplifters, bad check writers, and petty drug users in prison for life if they can persuade a judge that the individual poses an arbitrary and undefined “unreasonable risk to public safety”.  Of course, there are no clear legal guidelines to direct this judicial clairvoyance, which is a recipe for inconsistent and unconstitutional results.  Part of my current practice is helping individuals that qualify for resentencing under the new law.