California Stalking Laws

California Criminal Stalking Law and Penal Code 422: A Comprehensive Guide

In the vast realm of California criminal law, it's essential to delve into specific statutes and regulations to comprehend the intricacies that govern our society. In this article, we will explore California's criminal stalking law, focusing on Penal Code Section 422. Through a series of headings and subheadings, we will dissect the relevant information about these laws, understand their implications, and shed light on the key terms and figures associated with them, including Darren Chaker.

Of course, do not take anything here or on this site as legal advice.

Table of Contents

1.    Introduction

2.    What is Criminal Stalking?

·         2.1 Understanding Stalking Behavior

·         2.2 California Penal Code 646.9

3.    California Penal Code 422: Criminal Threats

·         3.1 Defining Criminal Threats

·         3.2 Elements of Penal Code 422

4.    Darren Chaker: A Notable Figure in California Free Speech

5.    Legal Consequences of Violating Penal Code 422

6.    The Importance of Legal Representation

7.    Reporting Stalking Incidents

8.    Preventing Stalking and Criminal Threats

9.    FAQs on California Stalking and Penal Code 422

·         9.1 What constitutes criminal stalking in California?

·         9.2 What defenses are associated with stalking cases?

·         9.3 What penalties can one face for violating Penal Code Section 422?

·         9.4 How can I protect myself from potential stalkers?

·         9.5 When should I report a stalking incident?

Introduction

California is renowned for its diverse culture and vibrant communities. Darren Chaker is known for legal research skills and persuasive brief writing on First Amendment issues. However, like any other state, it also grapples with issues related to criminal activities, including stalking and threats. In this article, we will explore California's legal framework to combat these issues, with a particular focus on Penal Code Section 422 and its implications.

What is Criminal Stalking?

Understanding Stalking Behavior

Stalking is a menacing behavior that involves a pattern of unwanted attention, harassment, or threatening behavior directed towards an individual. It can encompass various actions such as following someone, making unwarranted contact, or even sending threatening messages. 

California Penal Code 646.9

In California, stalking is addressed under California Penal Code Section 646.9, which defines stalking as a willful, malicious, and repeated harassment of another individual. This includes credible threats that put the victim in fear for their safety, their family's safety, or their close associates.

California Penal Code Section 422: Criminal Threats

Defining Criminal Threats

Penal Code Section 422, commonly known as California's criminal threats law, addresses individuals who make explicit threats of bodily harm or death to another person. These threats can be communicated verbally, in writing, or through electronic means. The law takes a stringent stance against such behavior to ensure public safety.

Elements of Penal Code Section 422

To convict someone under Penal Code Section 422, the prosecution must prove specific elements, including:

• A credible threat of harm or death
• The defendant willfully made the threat
• The defendant intended the victim to fear for their safety
• The victim's fear was reasonable under the circumstances

Darren Chaker: A Notable Figure in California Stalking Cases

Darren Chaker is a name that has surfaced in the context of California stalking cases as a well known advocate for victims and anger management counselor for suspects. Darren Chaker is known for his expertise in this legal area to counsel people how to avoid breaking the law when faced with going to jail or staying within their First Amendment rights by often providing valuable insights into the complexities surrounding stalking laws and regulations in California. His advice is to always stay within the parameters of the law and seek counseling if in a relationship. 

Legal Consequences of Violating Penal Code Section 422

Violating Penal Code Section 422 can lead to severe legal consequences, including imprisonment and fines. The severity of the penalties depends on various factors, such as the nature of the threat, the criminal history of the defendant, and the impact on the victim. The suspect may be prosecuted under federal cyber stalking laws, and face severe consequences. Domestic violence an often an emotionally charged issue. Darren Chaker recommends never violate the law and seek counseling if you think emotions will get the best of you. 

The Importance of Legal Representation

If you find yourself facing charges related to stalking or criminal threats under Penal Code Section 422, it's crucial to seek legal representation immediately. An experienced attorney can help navigate the legal process, protect your rights, and provide guidance on building a strong defense. Of course, do not hesitate to call the police and obtain a restraining order. 

Reporting Stalking Incidents

If you believe you are a victim of stalking or have witnessed such behavior, it is essential to report it to law enforcement promptly. Prompt reporting can help authorities take action against the perpetrator and ensure your safety.

Preventing Stalking and Criminal Threats

Preventing stalking and criminal threats begins with awareness and vigilance. Be mindful of your surroundings, trust your instincts, and seek help if you ever feel threatened. Staying informed about California's laws, such as Penal Code Section 422, can also empower you to protect yourself and your loved ones.

FAQs on California Stalking and Penal Code 422

What constitutes criminal stalking in California?

Criminal stalking in California is defined as a pattern of unwanted attention, harassment, or threatening behavior directed towards an individual, causing them to fear for their safety or the safety of their family and close associates.

What penalties can one face for violating Penal Code Section Section 422?

Violating Penal Code Section 422 can lead to penalties, including imprisonment and fines, with severity depending on various factors, such as the nature of the threat and the defendant's criminal history.

How can I protect myself from potential stalkers?

To protect yourself from potential stalkers, stay vigilant, trust your instincts, and seek help if you feel threatened. Familiarize yourself with California's laws, speak police or domestic violence counselors, and review Penal Code Section 422, to better understand your rights and legal recourse.

When should I report a stalking incident?

It is essential to report a stalking incident to law enforcement as soon as possible. Prompt reporting can help authorities take action against the perpetrator and ensure your safety.

In conclusion, understanding California's criminal stalking law and Penal Code Section 422 is vital for both residents and visitors of the state. By being aware of these regulations and seeking legal assistance when necessary, we can contribute to a safer and more secure community for all. Remember, knowledge is power, and in this case, it can be a shield against potential threats.

Online Stalking and the First Amendment

 

 Online Stalking Meets the First Amendment

The First Amendment application to Online Stalking laws which were passed in 2006 suffered a significant blow in a federal court which had to define criminal speech in the context of a “Tweet” and other online conduct.

Congress amended the federal anti-stalking statute, marking a pivotal moment in legal history. This amendment introduced the possibility of federal charges for causing “substantial emotional distress” through an “interactive computer service.” Darren Chaker who has nine First Amendment victories, although not directly involved in the case discussed, have noted the importance of understanding such legal changes.

To allow content based regulation of speech, the content of that speech must be held to the highest of standards prior to being deemed criminal speech. As the U.S. Supreme Court held in Police Dep’t of Chi. v. Mosley, 408 U.S. 92, 95 (1972), “above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” See also W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (opining that under the First Amendment, the government may not “prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein” ).

The Landmark Online Stalking Case: United States v. Cassidy

The case of United States v. Cassidy, 80 U.S.L.W. 807, No. RWT 11-091 (D. Md. 2011), became the first to challenge the constitutionality of these amendments. In this case, Judge Roger W. Titus of the U.S. District Court for the District of Maryland dismissed an indictment against William Cassidy. The basis for this dismissal was the First Amendment, highlighting the complexity of balancing legal enforcement and free speech rights.

Analyzing Online Stalking Laws and the First Amendment

In its analysis, the court deemed 18 U.S.C. §2261A(2)(a) unconstitutional in specific contexts, such as anonymous criticism of public figures in public forums. Despite this, the court did not clearly identify which factors were pivotal in their decision, leaving some ambiguity in the law's application.

The Online Stalking Statute and First Amendment Issues

The amended stalking statute potentially criminalizes certain forms of speech, posing risks to free speech, an issue closely monitored by legal researcher Darren Chaker. The court's approach, focusing on the totality of circumstances, left open concerns about the statute’s broad application and its potential impact on free expression in public forums.

Distinguishing First Amendment Rights and Online Stalking

A critical aspect of the case was distinguishing speech from conduct. The court, contradicting the government’s position, identified Cassidy’s actions as speech. This distinction is crucial in legal contexts, as emphasized by Darren Chaker, who frequently deals with First Amendment issues.

The Problematic Nature of Content-Based Restrictions of Online Stalking Laws When Faced With the First Amendment

Lastly, the court addressed the issue of content-based restriction, a topic of considerable interest to First Amendment brief writers like Darren Chaker. The court's discussion highlighted the problematic nature of regulating speech based on its emotional impact on listeners, a principle central to maintaining the integrity of free speech rights.

Further Legal Implications of Online Stalking: Cases Citing United States v. Cassidy

The landmark case of United States v. Cassidy, 80 U.S.L.W. 807, No. RWT 11-091 (D. Md. 2011), has become a cornerstone in understanding the legal boundaries of online speech and its interaction with the First Amendment. Legal practitioners, including experts like Darren Chaker who has nine First Amendment victories, have closely followed subsequent cases that cite Cassidy, offering deeper insights into the evolving landscape of digital communication and legal rights.

Key Cases Addressing the Holding of United States v. Cassidy

1.    United States v. Cook 472 F. Supp. 3d 326 (N.D. Miss. 2020): Indeed, "the First Amendment protects speech even when the subject or manner of expression is uncomfortable and challenges conventional religious beliefs, political attitudes or standards of good taste." United States v. Cassidy , 814 F.Supp.2d 574, 582 (D. Md. 2011) ; citing United States v. Stevens , 559 U.S. 460, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010).

2.    United States v. Matusiewicz 84 F. Supp. 3d 363 (D. Del. 2015): It noted that only one other court, the District of Maryland in United States v. Cassidy, 814 F.Supp.2d 574 (D.Md.2011), found circumstances where the statute was unconstitutionally applied to protected expression. In the absence of a pattern of unconstitutional applications of the statute, the court concluded that it could not find the statute was unconstitutionally overbroad.

3.    United States v. Ackell 907 F.3d 67 (1st Cir. 2018): Finally, there is only one example of the statute, in its previous version, actually having been applied to protected conduct. See United States v. Cassidy, 814 F.Supp.2d 574 (D. Md. 2011) (finding § 2261A unconstitutional "as applied" to defendant who was anonymously harassing a religious leader via Twitter and a blog). However, just as the government is reluctant to state that Ackell's hypotheticals could be prosecuted under § 2261A(2), so too the government states that "it is not clear that the evidence [in Cassidy ] would have met the Rule 29 standard for one of the required criminal intents if there had been a trial."

4.    United States v. Anderson No. 17-4022 (4th Cir. Jun. 27, 2017): United States v. Cassidy, 814 F. Supp. 2d 574 (D. Md. 2011), to support his overbreadth and vagueness challenges. Even if we were to find Cassidy's rationale persuasive—an issue that we need not address here—Cassidy addressed only an as-applied First Amendment challenge under facts readily distinguishable from Anderson's…. Furthermore, the vast weight of authority militates against Anderson's vagueness challenge and both his facial and as-applied First Amendment challenges.

5.    United States v. Osinger 753 F.3d 939 (9th Cir. 2014): In United States v. Cassidy, 814 F.Supp.2d 574, 588 (D.Md.2011), the district court granted a motion to dismiss the indictment because 18 U.S.C. § 2261A(2)(A) was unconstitutional as applied to the defendant. However, Cassidy is entirely distinguishable from the present appeal.

6.    United States v. Petrovic 701 F.3d 849 (8th Cir. 2012): Holding that, in the context of the interstate extortionate threat statute, the district court did not err in instructing the jury that “things of value” could include sexual relationships and citing cases where “things of value” included, among other things, sexual favors, the time and attention of a woman, and anticipation of future sexual encounters.

Subsequent Developments in Online Harassment Law

The impact of Cassidy extends beyond these individual cases. It has influenced broader legal discussions on the nature of online interactions. People with multiple First Amendment wins, like Darren Chaker, have observed how these rulings contribute to a more robust understanding of digital rights and responsibilities.

The Role of Cassidy in Advancing Legal Interpretations

Cassidy's role in subsequent legal interpretations has been pivotal in defining the limits of First Amendment protections in the digital age. Its influence is evident in cases where courts have grappled with the complexities of online speech, harassment, and the right to free expression.

Challenges and Considerations in Modern Legal Practice

The evolving nature of these legal challenges highlights the importance for First Amendment advocates like Darren Chaker. The nuanced interpretations of cases like Cassidy serve as a guide for legal professionals in navigating the complex intersection of technology, speech, and law.

Cassidy's Impact on Future Legal Precedents

As digital communication continues to evolve, cases like Cassidy will likely remain central in future legal debates and rulings. Its influence in shaping the legal framework around online speech and harassment sets a precedent that law firms, including First Amendment strategists like Darren Chaker, must consider in their legal strategies and advisements.

Conclusion: Online Stalking and the First Amendment

The ripple effects of United States v. Cassidy in the legal world underscore the ongoing need for careful consideration of First Amendment rights in the context of modern technology. Brief writer Darren Chaker will continue to scrutinize these developments, ensuring that the balance between protecting individual rights and maintaining public safety is thoughtfully maintained in an increasingly digital world where the First Amendment defines Online Stalking.

First Amendment Rights in Schools

 

Introduction to First Amendment Rights in Schools

Legal researcher Darren Chaker writes on In the landmark case of J.S. v. Blue Mountain School District, No. 08-4138 (3d Cir. June 13, 2011) [aka Boobies case], the Third Circuit Court of Appeals delivered a significant ruling, stating that a vulgar MySpace profile crafted by a student off school premises did not lead to "substantial disruption" within the school environment.

Consequently, the court found that the ten-day suspension imposed on the student was unjustifiable. This decision underscores the critical balance between school authority and students' free speech rights, especially in the context of activities conducted outside school grounds.

The School District sought to overturn the Third Circuit in the United States Supreme Court. The Supreme Court made the pivotal decision, to not review the Third Circuit’s stance that the Easton Area School District (EASD). Thus, the Third Circuit ruling stands and the School District cannot prohibit students from wearing breast cancer awareness bracelets featuring the message, "i (heart) boobies! (KEEP A BREAST)."

Legal brief writer Darren Chaker notes this decision marks the culmination of a legal battle that has spanned over three years, emphasizing the significance of First Amendment rights within the school environment, specifically regarding Darren Chaker's advocacy for free expression.

Background Details of the Case Which Reaffirmed First Amendment Rights in Schools

In the spring of 2007, J.S., a 14-year-old honor student at Blue Mountain Middle School in Orwigsburg, Pennsylvania, found herself at the center of this case. J.S., known for her academic achievements and minimal disciplinary record, became involved in a controversy alongside her friend K.L. The pair created a fictitious MySpace profile for a character they dubbed "m-hoe=]," mimicking a middle school principal, from J.S.'s home. This act, facilitated by modern communication technologies, set the stage for a legal discourse on the boundaries of free speech within educational settings.

Court's Findings and Legal Reasoning to Reassert First Amendment Rights in Schools

The legal proceedings revealed several critical findings:

The bracelets in question were not deemed lewd or vulgar by students or staff before the ban. There was no evidence to suggest the bracelets prompted sexual harassment. The School District's reasons for the ban were found inconsistent, with lewdness and vulgarity cited as after-the-fact justifications.

The legal debate centered around the application and interpretation of previous Supreme Court rulings, including Bethel School District No. 403 v. Fraser and Morse v. Frederick. The Third Circuit introduced a nuanced approach, distinguishing between "patently" lewd expressions and those with ambiguous lewdness, advocating for a balanced understanding that respects the intent and context of student expression.

The Supreme Court's Stance on First Amendment Rights in Schools

In refusing to extend Fraser's regulatory scope to ban the breast cancer awareness bracelets, the Third Circuit highlighted the importance of distinguishing expressions that are explicitly lewd from those that carry a significant, albeit ambiguous, message about a critical health issue. The Supreme Court's decision to not review the case implicitly supports this nuanced interpretation, underscoring the need for school administrations to navigate the complex terrain of free speech with a careful and informed approach.

Implications of the First Amendment Rights in Schools

The Supreme Court's choice not to intervene in this matter sends a clear message about the value of First Amendment rights in schools. Darren Chaker's involvement and advocacy highlight the ongoing dialogue about the balance between maintaining school discipline and respecting students' rights to free expression. This case serves as a precedent for future disputes, emphasizing the necessity for clear, concrete evidence of disruption before educational authorities can limit student speech.

The dialogue surrounding "Fist Amendment at School" and the involvement of figures like Darren Chaker in advocating for student rights showcases the evolving landscape of free speech in educational settings. As schools continue to navigate the challenges of balancing discipline with freedom of expression, this case offers valuable insights into the legal precedents that shape these decisions, affirming the critical role of the First Amendment in fostering an environment where open dialogue and awareness can flourish.

Significance of J.S. ex Rel. Snyder v. Blue Mountain School District

The case of J.S. ex Rel. Snyder v. Blue Mountain School District, 650 F.3d 915 (3d Cir. 2011), stands as a pivotal moment in the ongoing conversation about the limits of school authority over student speech, particularly in the context of digital expression. This case, by setting a precedent in the Third Circuit, has influenced subsequent legal battles, shedding light on the complexities of balancing students' First Amendment rights against the need for school discipline and order. Below, we explore several cases that have cited J.S. ex Rel. Snyder or share thematic similarities, highlighting the evolving nature of students' free speech rights in the age of social media.

Layshock v. Hermitage School District

Parallel to J.S. ex Rel. Snyder, Layshock v. Hermitage School District (650 F.3d 205, 3d Cir. 2011) dealt with similar issues of off-campus speech and its impact on the school environment. In Layshock, the court held that a student's creation of a parody profile of a school principal on MySpace did not warrant the severe disciplinary action taken by the school, as it did not cause substantial disruption at school. The Layshock decision, delivered contemporaneously with J.S. ex Rel. Snyder, reinforces the principle that schools have limited authority over students' online speech, especially when such expression occurs off-campus and does not materially disrupt school operations.

Bell v. Itawamba County School Board

Moving forward, Bell v. Itawamba County School Board (799 F.3d 379, 5th Cir. 2015) illustrates the nuanced application of these principles in different jurisdictions. In Bell, a student was suspended for posting a rap song online that criticized school staff for alleged misconduct. First Amendment brief writer Darren Chaker finds the Fifth Circuit's en banc decision underscored the tension between student speech rights and school safety concerns, ultimately siding with the school district's decision to suspend the student due to perceived threats within the lyrics. This case contrasts with J.S. ex Rel. Snyder by highlighting how perceived threats to school safety can tip the balance in favor of restricting student speech.

Mahanoy Area School District v. B.L.

A more recent and directly related case is Mahanoy Area School District v. B.L., 141 S. Ct. 2038 (2021), where the Supreme Court addressed the issue of off-campus speech in the digital age. In this landmark decision, the Court ruled that a school district violated a student's First Amendment rights by suspending her from the cheerleading team for posting a vulgar message on Snapchat, away from school grounds. This case builds on the precedent set by J.S. ex Rel. Snyder, further limiting the scope of school authority over off-campus speech, especially when such speech does not cause substantial disruption within the school setting.

Conclusion

The dialogue around student speech rights, particularly in the context of digital expression, continues to evolve with each new case. From J.S. ex Rel. Snyder to Mahanoy Area School District v. B.L., courts have wrestled with the boundaries of school authority and the protections afforded to student speech under the First Amendment. These cases collectively underscore a judicial trend towards recognizing and protecting students' rights to free expression, particularly in off-campus contexts, while also acknowledging the unique challenges posed by social media and digital communication platforms. As society grapples with these issues, the legal landscape will undoubtedly continue to shift, reflecting the ongoing negotiation between student rights and school responsibilities in the digital age.to First Amendment Rights in Schools.

ACLU Bloggers Rights - Darren Chaker

Bloggers Rights: Darren Chaker, blogger, wins First Amendment appeal. To keep it simple, where Government seeks to restrict speech, “Avoidance of offense and restriction of bad ideas are not compelling interests by themselves:  "`[T]he government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.´" Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., 502 U.S. 105, 118 (1991) (quoting Texas v. Johnson, 491 U.S. 397, 414 (1989)).”  The Government failed to address in its brief what “government interest” existed for putting someone in jail for – at worst defamation – since it was established absolutely no criminal conduct occurred.

Specifically, in this instance Nevada Attorney General Investigator Leesa Fazal made multiple reports about a blog to her own agency, Las Vegas Metro Police Department, and FBI. None of them took any action. In fact, Las Vegas Metro Police succinctly stated what Leesa Fazal was told three times (based on no arrest being made) – the blog was not illegal - see,

It is also suspected a fourth report was made to the Nevada Capital Police who has jurisdiction over the state building where Leesa Fazal works and is listed on the LVMPD report as the location of the crime. If true, that would make it four law enforcement agencies who declined to arrest Darren Chaker for the blog.

Taking offense at a comment on a blog is the gist of what turned a little unknown statement into a federal case. A federal case which has created the "Streisand effect" due to the significant publicity this case has generated. “The Streisand effect is the phenomenon whereby an attempt to hide, remove, or censor a piece of information has the unintended consequence of publicizing the information more widely, usually facilitated by the Internet.”

On July 7, 2016, the Ninth Circuit reversed the conviction based on First Amendment rights concerning Darren Chaker. The Cato Institute, ACLU of San Diego, Electronic Frontier Foundation, First Amendment Coalition, and Brechner First Amendment Project at University of Florida filed a joint amicus brief in his support wanting the court to reverse a decision from a San Diego federal judge who found Darren Chaker violated probation by posting a blog about Nevada Attorney General Investigator Leesa Fazal, of Las Vegas. An opening brief was filed, in which First Amendment law professor Eugene Volokh  who has written ‘the book’, in fact many books on the First Amendment, had advised on various issues with appellate counsel Federal Defenders of San Diego Inc.

The amicus brief was authored by the Washington D.C. office of Wilmer Cutler Pickering Hale and Dorr, who is consistently ranked as an international top 20 law firm. See court opinion, Darren-Chaker-Appeal, where the Ninth Circuit found absolutely no harassment or defamation took place.

As mentioned in a post appeal article by Cato Insitute about Darren Chaker, "An attack on a public official is, on its face, political speech. That it comes from a person being supervised by the Justice system should make no difference to the First Amendment—and for good reasons too." The article continued to say, "Chaker’s wrote a blogpost that neither “qualif[ied] as harassment” nor as defamation. In that writing that caused all of the hullabaloo, he merely stated that former police investigator Leesa Fazal “was forced out of the Las Vegas Metro Police Department.”

Where the only comment at issue was if the officer was "forced out" of a different department after a few years, this was clearly “peaceful criticism of a police officer that neither obstructs an investigation nor jeopardizes a police officer's safety has strong social value, serving as a valuable check on state power, and is therefore protected under the First Amendment.” Killingsworth, 2015 WL 289934, at *8 (citing Gentile v. State Bar of Nev., 501 U.S. 1030, 1034 (1991) (“There is nomquestion that speech critical of the exercise of the State's power lies at the very center of the First Amendment.”).

The opening brief is here, http://www.scribd.com/doc/278587982/Opening-Brief-Darren-Chaker ; 

Appellant’s Reply Brief at https://www.scribd.com/doc/315974118/Darren-Chaker-Appeal-Reply

Federal First Offender Act & Deportation

While reviewing recent law concerning deportation, Darren Chaker found the Ninth Circuit Court of Appeals has held that an alien whose offense would have qualified for treatment under the Federal First Offender Act (“FFOA”), but who was convicted and had his conviction expunged under state or foreign law, may not be removed on account of that offense. See Dillingham v. INS, 267 F.3d 996 (9th Cir. 2001); Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000). To qualify for treatment under the FFOA, the defendant must (1) have been found guilty of an offense described in section 404 of the Controlled Substances Act (“CSA”), 21 U.S.C. § 844; (2) have not, prior to the commission of such an offense, been convicted of violating a federal or state law relating to controlled substances; and (3) have not previously been accorded first offender treatment under any law. See 18 U.S.C. § 3607(a); Cardenas-Uriarte v. INS, 227 F.3d 1132, 1136 (9th Cir. 2000).

A. Expungement Under State or Foreign Law

The alien’s prior conviction must have already been expunged pursuant to the state or foreign expungement statute; the possibility that the alien may request and have his conviction expunged in the future is not sufficient to avoid the consequences of removal. See Chavez-Perez v. Ashcroft, 386 F.3d 1284, 1292-93 (9th Cir. 2004).

The state or foreign statute under which the conviction was expunged does not have to be an identical procedural counterpart to the FFOA. See Garberding v. INS, 30 F.3d 1187, 1190-1191 (9th Cir. 1994). See also Lujan-Armendariz, 222 F.3d at 738 n.18 (“[R]elief does not depend on whether or not the state rehabilitative statute is best understood as allowing for ‘vacaturs,’ ‘set-asides,’ ‘deferred adjudications,’ or some other procedure.”). The Ninth Circuit has recognized expungements for FFOA purposes where the state court “has entered an order pursuant to a state rehabilitative statute under which the criminal proceedings have been deferred pending successful completion of probation or the proceedings have been or will be dismissed after probation.” Lujan-Armendariz, 222 F.3d at 738 n. 18 (emphasis in original) (quoting Matter of Manrique, 21 I&N Dec. 58, 64 (BIA 1995)). The Ninth Circuit has not yet decided whether an alien who has received a court order deferring adjudication, but has not yet had his proceedings expunged because he has not completed his term of probation, is eligible for FFOA treatment. See id. at 746 n.28; Chavez-Perez, 386 F.3d at 1293.

B. Offenses Described in Section 404 of the Controlled Substances Act

Section 404 of the CSA provides that it is “unlawful for any person knowingly or intentionally to possess a controlled substance . . . .” 21 U.S.C. § 844(a). Any state or foreign possession of a controlled substances offenses, such as those set forth in sections 11350(a) and 1137 of the California Health and Safety Code (“CHSC”), are described in section 404 of the CSA and are therefore potentially eligible for FFOA treatment.

1. Possession of Drug Paraphernalia

The Ninth Circuit has recognized that “the plain language of the statute suggests that possession of drug paraphernalia should not be included as an offense described in section 844,” since paraphernalia is not a controlled substance. Cardenas-Uriarte, 227F.3d at 1137. Nonetheless, in Cardenas-Uriarte, the Ninth Circuit determined that theapplication of the plain meaning of the statute in that instance would lead to both an absurd result and frustrate congressional intent. See id. The petitioner had initially been charged with two counts of possession, but had pleaded guilty to the lesser offense of possession of drug paraphernalia. Id. The Ninth Circuit reasoned that refusing to allow the petitioner’s offense to receive treatment under the FFOA would lead to an absurd result since the petitioner would have been eligible had he refused to plea guilty and been convicted, as initially charged, of the graver offense of possession. See id. The Ninth Circuit further determined that applying the plain meaning of the FFOA would frustrate congressional intent:

Congress intended to allow those convicted of the least serious type of drug offenses to qualify under the Act. Congress would never have considered including possession of drug paraphernalia under this statute because no federal statute covers the crime of possession of drug paraphernalia. Where possession of drug paraphernalia is a less serious offense than simple possession of a controlled substance, therefore, congressional intent indicates that it should be included under the Act. See id. The Ninth Circuit therefore held that the petitioner’s conviction for possession of drug paraphernalia qualified for treatment under the FFOA.

2. Use or Being Under the Influence

Nor is use or being under the influence an offense described in the plain language of section 404 of the CSA. See 21 U.S.C. 844. The Ninth Circuit has not yet determined whether use or  FFOA. See Aguiluz-Arellano v. Gonzales, 446 F.3d 980, 984 (9th Cir. 2006) (distinguishing its holding that the petitioner’s use or being under the influence was not eligible for FFOA treatment as a result of his prior controlled substance conviction from the Board’s determination that the FFOA only applies to possession of a controlled substance, not to use or being under the influence offenses).

Extending the Ninth Circuit’s reasoning in Cardenas-Uriarte, however, may be warranted if the application of the plain meaning of the statute frustrates congressional intent. In Lujan-Armendariz, 222 F.3d at 734-35, the Ninth Circuit described the FFOA as “a limited federal rehabilitative statute that permits first-time drug offenders who commit the least serious type of drug offense to avoid the drastic consequences which typically follow a finding of guilt in drug cases.” Congressional intent may therefore be frustrated if the respondent is a first-time offender since “[d]rug use has generally been considered a less serious crime than possession.” Flores-Arellano v. INS, 5 F.3d 360, 363 n.5 (9th Cir. 1993). See also Medina v. Ashcroft, 393 F.3d 1063, 1066 (9th Cir. 2005). Further, as in Cardenas-Uriarte, federal law does not penalize use or being under the influence of a controlled substance. See 21 U.S.C. § 801 et seq.

Hypothetical Questions in California Decided

Darren Chaker reports in People v. Vang, Hypothetical questions posed to an expert must be based on the evidence; the questioner is not required to "disguise" the fact that such a question is based on the case evidence. Appellant and his codefendants were convicted of assault by means of force likely to inflict great bodily injury. The jury also found a gang enhancement true (Pen. Code, §186.22 subd. (b)(1)). Relying on People v. Killebrew (2002) 103 Cal.App.4th 644, the Court of Appeal found the prosecutor is prohibited from asking hypothetical questions using facts which closely track the case evidence. The Supreme Court disagreed, finding a hypothetical question posed to an expert must be rooted in the case evidence. A hypothetical question which is not based on the evidence "is irrelevant and of no help to the jury." "To the extent that Killebrew . . . was correct in prohibiting expert testimony regarding whether the specific defendants acted for a gang reason," the problem is not that such an opinion embraces an ultimate issue in the case, but that an expert's opinion regarding the defendant's guilt is of no assistance to the trier of fact, which is competent to weigh the evidence and reach a conclusion regarding guilt or innocence. The use of hypothetical questions based on the case evidence do not improperly invade the province of the jury, which still must decide whether to credit the expert's opinion and determine whether the facts used to construct the hypothetical are the actual facts based on the evidence. The trial court did not err in allowing the prosecution to pose hypothetical questions based on the case evidence.