Feldman & Wallach Blog On Current Legal Matters

Dismissal with Finding of Factual Innocence

December 5, 2013,

Jason Feldman negotiated a rare plea deal that involved a dismissal with a finding of factual innocence.  The defendant was charged with Felony Vandalism (Penal Code § 59(a)).  However, day of trial, Mr. Feldman arranged for a plea of no contest to Misdemeanor Disturbing the Peace (Penal Code § 415).  The defendant was ordered to attend 10 anger management classes and, at sentencing next month, the charge will be dismissed with a finding of factual innocence.

A finding of factual innocence is a godsend to someone who has been wrongfully arrested. And for anyone who may have been properly apprehended but was later acquitted of the charges, a finding of factual innocence provides something a jury’s verdict cannot.   When a jury acquits someone, it simply means that the prosecution did not meet the burden of proof for guilt; it does not necessarily mean the defendant didn’t commit the crime.

Upon a finding of factual innocence, the law states that “the arrest shall be deemed not to have occurred and the person may answer accordingly any question relating to its occurrence.” In addition, the statute requires the law enforcement agency that has jurisdiction over the offense (or the court) to issue a written declaration to the arrestee stating that he or she is factually innocent (Penal Code § 851.8(f)).

A finding of factual innocence prevents current and potential employers, as well as anyone else seeking public records, from having access to any of the records that reveal the arrest. Although Labor Code § 432.7(a) generally prohibits an employer from asking about any arrest that did not result in conviction, job inquiries are only the tip of the iceberg. An arrest record can have a dramatic impact on a host of matters: child custody, adoption, school admission, licensing, credit, insurance premiums, and—perhaps most important of all—a person’s reputation in the community.


2 strikes stricken and client given probation

November 15, 2013

With several motions pending, client with two prior strikes given probation and time served

 November 15, 2013

With Romero and Pitchess motions pending as well as a motion to suppress evidence and a motion to compel discovery on the eve of trial for a client charged with Possession of Firearm by a Felon, Feldman & Wallach received the discovery at issue and arranged for two prior strike offenses which occurred in the past five years to be stricken for purposes of sentencing. 

The end result was the client was granted probation and released from custody that same day.  He called the office from a movie theatre that night with his mother.  The client’s mother, a government worker, thanked us for returning her son home and called the result a miracle.        

Suppression Motion Granted On Day 1 Of Trial — Case Dismisssed

 November 18, 2013 — Suppression Motion Granted — Case Dismissed

Our client’s motion to suppress evidence was granted today in the LAX courthouse.  The client was charged with possession of a concealed weapon (Pen. Code Section 21310).  Settlement discussions had not proved fruitful and the matter was proceeding to trial.  The client testified during this suppression motion (which is unusual) and the Court found that the client’s testimony was as credible as that of the officers, and therefore the Prosecution had not met its burden of proof.  The matter was dismissed.

And a nice touch was when the Court ordered the Police Department to return the knife at issue.  It’s good to see a job done to its finish.

Prosecution Folds During Ian Wallach’s Cross-Examination Of Complaining Witness – Van Nuys Courthouse — Oct. 10, 2013

In a case where our client was charged with Domestic Violence (PC Section 273.5) and Violating a Court Order (PC Section 166), the Complaining Witness alleged that she was beaten by our client.  During Cross-Examination, Mr. Wallach elicited numerous inconsistencies between her testimony and her prior statements, a strong motive for being untruthful, and her proclivity for violence.  The Judge stopped the cross-examination after 90 minutes and urged the Prosecution to abandon the charges, which ultimately occurred.  The protective order extinguished, the client returned to his home without any punishment, and the Court didn’t even incarcerate the client for a violation of his probation.  This was a first for Ian Wallach, and the client was quite pleased.

“Get Rid Of Your Lawyer” — What Can You Do If An Officer Or Agent Tells Your Client To Fire You?

By Ian Wallach, partner, Feldman & Wallach, http://www.feldmanwallach.com

In Los Angeles there have been recurring reports of detectives calling represented parties – outside of the presence of, and without the knowledge of or notice to, their counsel, in hopes of establishing a cooperation agreement, and telling those parties to fire the lawyer.  This is happening in matters that are not yet filed and there is no evidence suggesting that any specific AUSAs or other prosecutors are aware of the conduct. 

This article will examine the ramifications of such conduct and make suggestions as to how a lawyer can use this misconduct to his client’s benefit.


This is not a new problem.  This is not a regional problem.  In Commonwealth v. Manning, 373 Mass. 438 (1977) a federal agent contacted a represented defendant in hopes of having the defendant become an informant.  The agent wanted the defendant to become an informant, and made disparaging remarks about the defendant’s attorney.  The Court addressed the misconduct and, specifically, if there was a showing of prejudice sufficient to warrant dismissal.  The Court stated that it was examining a “deliberate and intentional attack by government agents on the relationship between Manning and his counsel in a calculated attempt to coerce the defendant into abandoning his defense.”  Id. at 443. The Massachusetts Court dismissed the case, stating that “we wish to leave no doubt that such conduct will not be tolerated in our criminal justice system.”  Id. at 445.


But a few years later, the U.S. Supreme Court was less offended (or at least not sufficiently offended to uphold a dismissal).  In U.S. v. Morrison 449 U.S. 361 (1981), the Supreme Court examined a situation where a defendant had hired a lawyer, and then two DEA agents met with the defendant afterwards and stated that the lawyer was substandard and she should fire him.  Id. at 363.  The defendant moved to dismiss the case based on the misconduct, but there was no showing of prejudice (and, more importantly, there was no evidence that the prosecutor was complicit or even aware that it transpired).  The Court provided a historical analysis of governmental misconduct cases and noted that the remedy of exclusion is available for evidence gained unlawfully.  See id. at 364.  The Court stated that “absent demonstrable prejudice, or substantial threat thereof, dismissal of the indictment is plainly inappropriate, even though the violation may have been deliberate.”  Id.  The Court went on to state that in criminal cases, the remedy for governmental misconduct is to exclude the ill-gotten evidence.  The Court stated that “we do not condone the egregious behavior of the Government agents.  Nor do we suggest that in cases such as this, a Sixth Amendment violation may not be remedied in other proceedings.  We simply conclude that the solution provided by the Court of Appeals is inappropriate where the violation, which we assume has occurred, has had no adverse impact upon the criminal proceedings.  Id. at 367.


But a few years after that, a California appellate court followed Morrison and still mandated dismissal.  In Boulas v. Superior Court, 188 Cal. App. 3d 422 (2d. Dist., 1986), the facts were plainly egregious.  The defendant in Boulas hired an investigator – without consulting his attorney – to consult with the authorities about a plea bargain.  A deputy met with the investigator and the defendant and proposed a cooperation agreement.  The deputy then discussed this meeting with the Deputy District Attorney.  The DDA decided that a cooperation agreement could only go forward if the defendant’s present attorney was fired.  This was relayed to the defendant, who fired his attorney.  The DDA then instructed the investigator as to which attorney to hire.  The Court’s use of the sanction of dismissal was apparently due to the Deputy District Attorney’s complicity and proactive intrusion into the relationship between the attorney and the client.


The Court set out to determine “the proper remedy for intentional interference by law enforcement personnel with the attorney-client relationship in the unique instance of such interference leading to the irremediable breakdown of that relationship.”  Boulas, 188 Cal. App. 3d at 425.  The Court began its discussion by stating “[t]here is no question that governmental authorities acted improperly when they contacted Boulas outside of the presence of his attorney to advise him to fire Attorney S.”  Id. at 429.  The Boulas court then cited a long line of cases holding that that “[w]hen conduct on the part of the authorities is so outrageous as to interfere with an accused’s right of due process of law, proceedings against the accused are thereby rendered improper” and that dismissal was a proper remedy in the face of shocking misconduct by overzealous government agents.  Id.  The prosecution argued that absent proof of harm, dismissal was an inappropriate sanction.  But the Court eloquently stated the nature of the attorney-client relation in a criminal action as follows:


The prosecution’s argument fundamentally misunderstands the scope and breadth of the state’s invasion of Boulas’s right to be represented by counsel of choice.  Criminal defense lawyers are not fungible.  The attorney-client relationship “. . . involves not just the casual assistance of a member of the bar, but an intimate process of consultation and planning which culminates in a state of trust and confidence between the client and his attorney.  This is particularly essential, of course, when the attorney is defending the client’s life or liberty.” (citing Smith v. Superior Court (1968) 68 Cal.2d 547, 561).  In order to provide effective assistance of counsel, it is essential that a defendant have full confidence that his attorney is representing the defendant’s interests with all due competence. 


Boulas, 188 Cal. App. 3d at 430.  The Court reiterated the strict prohibitions against the state from interference with this relationship, stating “[t]he state is obliged ‘to refrain from unreasonable interference with the individual’s desire to defend himself in whatever manner he deems best, using every legitimate resource at his command.’ (citing People v. Crovedi, (1966) 65 Cal.2d 199, 206).  The state must respect, and not interfere with, a defendant’s ‘right to decide for himself who can best conduct the case . . . .’ (citing Maxwell v. Superior Court, 30 Cal.3d 606. 615).”  Id. at 432.


The Boulas Court distinguished itself from the Supreme Court’s decision in Morrison, by stating:

It is important to note that, in United States v. Morrison, 449 U.S. 361, the Supreme Court did not rule out the possibility of ordering the dismissal of a case upon a proper showing of prejudice.  The court, in Morrison, found that the record tendered by the defendant failed to “reveal a pattern of recurring violations by investigative officers that might warrant the imposition of a more extreme remedy in order to deter further lawlessness.” (Id. at pp. 365-366, fn. 2, italics added.)

There exist factual distinctions between Morrison and the present case.  The defendant in Morrison was twice contacted by police officers.  During these visits, the officers berated her attorney’s competence and sought her cooperation in another case.  She declined to cooperate, did not supply any information pertinent to her case, and kept her attorney.  (Id. at pp. 362-363).

There is no suggestion in Morrison that the prosecutor’s office participated in the decision of the police officers to speak with the defendant outside of the presence of her attorney.  In contrast, the record before this court contains substantial evidence of such participation on the part of a deputy district attorney.


Boulas, 188 Cal. App. 3d at 431-432.  The Court dismissed the case (though one judge dissented in Boulas, citing Morrison, stating that the conduct was indefensible but there wasn’t a showing of prejudice that warranted dismissal).  The Court also gave the following note of hope at the end of the opinion:


It is the hope of this court that this opinion will serve to discourage government officials from interfering with the constitutional right of an accused to be assisted by counsel of his own choosing. “In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously.  Our Government is the potent, the omnipresent teacher.  For good or for ill, it teaches the whole people by its example.” (citing Olmstead v. United States (1928) 277 U.S. 438, 485 (Brandeis, J., dis.)).

 Id. at 434.


Boulas is still the law in California. (See People v. Uribe, 199 Cal. App. 4th 836, 868 (Cal. App. 6th Dist. 2011), “Boulas has no application.  There, ‘the grave sanction of dismissal’ was found to be warranted ‘to discourage government officials from interfering with the constitutional right of an accused to be assisted by counsel of his own choosing.’ Here the misconduct did not involve in any way an interference with defendant’s relationship with counsel”).  But the Boulas’ Court’s warning may not have had much effect, as the practice continues.


So, the law in California is that if (a) government agents intentionally seek to have a represented party terminate her lawyer; and (b) prejudice arises; then a dismissal can be issued.  And will more likely be issued if (c) the prosecutor is aware of, or complicit in, the misconduct.


So how can you establish complicity?  And how can you establish prejudice?  Consider writing a letter to the District Attorney identifying the officer or agent and the misconduct.  This could help to establish notice and complicity, and be a starting point for a resolution.  And as far as prejudice, consider having the client fire you, and letting a friend take over.  Or at least have the client write down what it felt like to have government agents come speak to him knowing he was represented, and after you told them that it would not happen, and that it would be unlawful for them to do so.  If your matter is not yet filed, you may wish to talk about this with the prosecutor’s office, rather than write about it, in hopes of using the prosecutor’s desire to protect the officer to your advantage (ideally, in the form of a non-filing or informal disposition).  If the case is filed, then taking the steps above can give a tiny chance of a dismissal, and a stronger position to negotiate for lenient resolution.


What is Copyright Infringement?

by Jason Feldman, Partner, Feldman & Wallach, www.feldmwanwallach.com

Where a party uses the work of another without its express written permission, authorization or consent that party may be in violation the United States Copyright Act.

The owner of a copyright has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.

Anyone who violates any of the exclusive rights of the copyright owner by copying, modifying and/or reproducing a party’s work is considered an “infringer” of the copyright as well as an “infringer” of the rights of the author.

In order to prevail on a claim for copyright infringement, a Plaintiff must initially show that the application has been filed and either factual evidence of copying or that the defendant had access to the copyrighted work and that the offending and copyrighted works are so similar, that the Court may infer that there was factual copying. A Plaintiff need only then prove that the works are “substantially similar.”

Damages for Infringement.

The owner of the exclusive rights granted under the Act may institute an action for damages for infringement. The owner may seek “Statutory Damages” for each and every infringement committed by the company.

“Statutory Damages” allow for the recovery of damages per infringement in a sum of not less than $750 or more than $30,000.  In an instance, however, where the copyright owner can sustain the burden of proving that the infringement was committed willfully, the court may increase the award of statutory damages to a sum of $150,000.

This can add up.  For example, concerning infringement of a software program, infringement occurs each time the software is installed on a defendant’s computer without the authorization of the copyright owner. In addition, an infringement occurs each time the software is “booted up.” In other words, for purposes of the statute, an infringement occurs every time the software is loaded from some storage medium, such as a diskette or a computer’s hard drive, into the computer’s random access memory (RAM). Thus, an infringement occurs each time the computer bearing the unauthorized software is activated.

Finally, a Plaintiff may also recover costs and reasonable Attorney’s Fees. See Title 17 USC Section 505.


by Jason Feldman, Partner, Feldman & Wallach, www.feldmwanwallach.com

Cal. Code § 12949 permits employers to establish and enforce reasonable appearance standards as follows: “Nothing in this part relating to gender-based discrimination affects the ability of an employer to require an employee to adhere to reasonable workplace appearance, grooming, and dress standards not precluded by other provisions of state or federal law, provided that an employer shall allow an employee to appear or dress consistently with the employee’s gender identity.”

Regulations from the Fair Employment and Housing Commission similarly permit an employer to impose grooming standards, so long as they do not discriminate on a prohibited basis nor “significantly burden the individual in his or her employment.”

While Cal. Code Sec. 12949 does provide protection to transsexuals and transgender individuals in relation to dress and grooming codes, California courts have pointed out that with this section the Legislature has recognized California employers’ right to impose dress codes in the workplace as long as they are consistent with their employees’ gender identity.

Because the objectives and public policy underlying both FEHA and Title VII are the same, California courts consider federal decisions in considering issues of workplace discrimination.  In relation to what could be considered reasonable workplace appearance, grooming and dress standards, numerous courts across the country have reasoned that employers may establish different grooming and dress standards for male and female employees, even if those standards prohibit men (but not women) from wearing earrings, require men (but not women) to wear neckties, forbid certain hairstyles such as cornrows, or require both women and men to wear overalls to work.

Courts have generally tolerated dress codes that reify “normative stereotypes.”  They do this by declaring that grooming standards that appropriately differentiate between the sexes are not facially discriminatory.

Jespersen v. Harrah’s Operating Company, Inc.,[1] interpreting Title VII, provides critical guidance on this issue. In Jespersen, plaintiff challenged her employer’s personal grooming policy, claiming that the requirement that she wear makeup constituted unlawful sex discrimination, both because it resulted in disparate treatment based on gender and because it had a disparate impact on her. Holding that plaintiff had failed to establish a record that would support a finding that the grooming policy was motivated by sex stereotyping, the Ninth Circuit affirmed the summary judgment entered by the trial court. While the court did not preclude the possibility that a grooming code, if not reasonably applied, could unlawfully discriminate, it would not permit the subjective objection of a single employee, without evidence of improper motivation by the employer, to be the basis for a claim.[2]

With respect to the claim for unequal burdens, the court recognized that demonstrating the existence of a sex-based difference in employer grooming policies, without more, does not establish a prima facie case of discrimination. A difference in grooming standards between men and women in a policy that otherwise applies equally to all employees in a given job category does not violate Title VII unless the policy places a greater burden on one gender.  Because, on summary judgment, plaintiff had submitted no evidence demonstrating that there was a relative difference in cost or time for men and women to comply with the policy, she could not prevail.  Similarly, with respect to sex stereotyping, there was no evidence that the policy was based on a stereotypical view of women, or that the standards would negatively impact a woman’s ability to perform the job. Rather, more must be shown than the objection of a single employee: “We respect Jespersen’s resolve to be true to herself and to the image that she wishes to project to the world. We cannot agree, however, that her objection to the makeup requirement, without more, can give raise to a claim of sex stereotyping under Title VII. If we were to do so, we would come perilously close to holding that every grooming, apparel, or appearance requirement that an individual finds personally offensive, or in conflict with his or her own self-image, can create a triable issue of sex discrimination.”[3]

Courts generally do not consider makeup, hairstyle, or sex-appropriate attire requirements to represent an undue burden without specific evidence from the plaintiff as to the time, cost, or other unequal burden actually imposed.  However, courts have found that female employees can’t be made to wear sexually revealing clothing that may expose them to sexual harassment.  Questions an employer should ask are, does this uniform promote a negative sexual stereotype?  Are the female employees equally affected by the uniform requirement?  Is the uniform consistent with the job for which they are employed?

[1] Jespersen v. Harrah’s Operating Company, Inc. (2006) 444 F.3d 1104.

[2] Jespersen, supra, at p. 1113.

[3] Jespersen, supra, at p. 1109-1111.