There are a number of different ways to get injured, unfortunately. People may slip, or a person may be involved in a motor vehicle accident with someone else. Others may even fall from a shoddy building.
Injured persons all share a common possible cause of action: negligence. The person that slipped may have stepped on a banana peel left on the ground by a business employee; the person who struck the injured's vehicle may have been speeding; and the building, where the injured fell, may have not been up to regulatory code.
Negligence is common. Although there may be an infinite number of ways that negligence could occur, the elements of negligence are always the same. For a claimant/plaintiff to be successful, he or she must prove duty, breach of duty, causation, and damages. Let's go through the elements in more depth.
Duty and breach of duty is what makes a defendant "negligent." As individuals of society, we have duties to one another. We have a duty not to harm someone from our actions -- we must use reasonable care. Further, some individuals in society may have more duties than others. A business owner is obligated to provide safe products, i.e. he has a duty to ensure that what he or she is selling is safe. A driver of a motor vehicle must also ensure that he or she is obeying all laws, and driving with due care.
When someone does not live up to their duty to another, or breaches that duty, he or she may be "negligent." For example, let's take a motor vehicle accident. Person A was speeding, talking on his cell phone, and eating a burrito. Upon approaching Person B, Person A could not stop his vehicle in time. Person A's truck slammed into Person's B tiny car. The accident is intense. In this example, Person A breached his duty to drive with due care, and he was "negligent" to Person B.
Being "negligent" does not prove negligence though. There are four elements, not two. A claimant/plaintiff must also show causation and damages.
Causation must connect the "negligent" act with the injuries incurred (damages, which we will discuss shortly). For example, if a person fell from a shoddy building, the building owner still may not be liable for the injuries. Why? Maybe causation cannot be proved. Even though the building was not up to code, the breach of not following the building codes had nothing to do with why the person fell from the building. The falling person was pushed by a criminal. In this example, the building owner cannot be responsible because his failure to not keep the building up to code did not cause the person to fall -- the criminal who pushed him off was responsible for the fall.
Finally, any negligence claim must prove damages. Damages are those monetary costs that an injured person may face: medical bills, car repair bills, rental bills, pain and suffering, lost wages, etc. If someone is involved in an accident, but fortunately, the person is not harmed, he or she does not have a negligence case. There must be damages for any case to proceed.
Negligence may be a common occurrence in the law, and laypersons may be familiar with some of the concepts, but it is wise to consult with an attorney who has experience in personal injury. If you or a loved one has been injured as the result of someone else, contact our office for a free phone consultation. Be safe out there.
Thursday, September 18, 2014
Monday, September 1, 2014
A majority of murder, and other violent crimes, in California are gang related. Indeed, most of the post-conviction work that I have taken part in involves allegations of gang affiliation. Due to the nature of such crimes -- multiple individuals and lack of physical or testimonial evidence, the prosecution necessarily relies upon aider and abettor theories of criminal liability.
Under an aider and abettor theory, defendants can be convicted if they merely assist, encourage, or facilitate a crime. More specifically, they do not have to be the actual perpetrator of the physical crime against the victim.
Moreover, a defendant can be convicted if he or she aided a "target" crime, which naturally and foreseeably could have led to a more violent crime -- like murder.
In June of this year, however, the California Supreme Court curbed the "natural and probable consequences" doctrine. The criminal doctrine allows for the prosecution of aiders and abettors when they participate in a crime that was "reasonably foreseeable" to the target crime. In sum, an individual can be guilty of murder, if he assisted in a crime, which murder was a "natural and probable consequence." The rationale of the doctrine is deterring accomplices from partaking in criminal acts that may foreseeably lead to other more violent crimes.
But in People v. Chiu (2014) 59 Cal.4th 155, the California Supreme Court held that a defendant can never be convicted of first degree premeditated murder on a natural and probable consequence theory. In Chiu, the defendant engaged in a street brawl involving 25 youths. The high school students fought one another indiscriminately until one of them shot and killed another young man. The defendant was charged with first-degree murder under the theory that he aided and abetted an "assault," which premeditated murder of the perpetrator was a natural and probable consequence. Defendant was sentenced to 25 years to life after he was found guilty of first-degree murder. The California Supreme Court reversed because they did not think that the defendant could have had the mental intent necessary for first degree murder.
Now prosecutors must rely on evidence to show that defendants had the specific intent to aid a premeditated murder. It is insufficient to argue the natural and probable consequence doctrine, as Chiu negated its application to first-degree murder cases. This decision implies that the California Supreme Court wants to depart from the wide application of the natural and probable consequence doctrine. Chiu stated, in part:
"[T]he connection between the defendant's culpability and the perpetrators premeditative state is too attenuated to impose aider and abettor liability for first degree murder under the natural and probable consequences doctrine, especially in light of the severe penalty involved and … the public policy concern of deterrence."
It appears that Justice Chin opens up to the possibility that there may be other instances where an element of the non-target crime is so detached that the natural and probable consequence theory would not serve public policy. Other states do not even apply the natural and probable consequences theory, so it's possible that the California Supreme Court would withdrawal, or at least curb, its unjust application.
In fact, California may reject the entire doctrine. The California Supreme Court has granted review of a separate natural and probable consequence doctrine case in People v. Smith (Vince Bryan), S210898, D060317 Fourth Appellate District, Division 1.
Violent crimes, instigated by gang rivalries, are senseless and destructive to the community. But, when individuals are convicted of crimes that they did not intend or anticipate in directly, it also hurts the community. Many young men are duped into following irresponsible older gang members, who have no regard for societal mores. Lawbreakers should, and need, to be punished. Let's just make sure that the punishment is just and follows the rule of law.
Tuesday, August 19, 2014
Motor vehicle accidents are common in Los Angeles. In fact, it brings to mind the Saturday Night Live skit, "The Californians." All too often, Angelinos communicate about their commutes, experiences on the road, and traffic. Also, people talk about their unfortunate "accidents" on the highways.
When you, a loved one, or friend, is involved in an accident, there are some steps that should be taken immediately. By taking these steps, you can ensure that your injuries are addressed and that any future claims are protected.
One, pull over, if possible, to a safe location with the other driver involved. After an accident, it is easy to get distracted and careless. Remember to protect yourself by moving your vehicle to a proper stop area, if possible.
Second, call the police. Emergency personnel are trained to handle all types of accidents, including motor vehicle. This step addresses a few things: (1) you get to reflect on any pain and whether you are severely hurt; (2) you get to engage an independent third party who can testify as to what happened during the incident; and (3) you can receive immediate medical treatment, if necessary.
Third, exchange the proper information with the other party involved. This step is common knowledge, or so it seems these days, but it is essential. Have the other driver give you insurance information, personal information, like address and phone number, and ask him or her what happened immediately prior to the accident. Take mental notes as what happened during this exchange.
Fourth, give a statement to the police and see if any witnesses are at the scene. Let me be clear: it is extremely important that you seek immediate medical attention if you need immediate care. In the event that you do need immediate medical attention, do not stay at the scene of the accident. Inform the emergency personnel and proceed to a hospital. But, if your injuries do not need immediate attention, talk to any third parties who may have been near or at the scene of the accident. Collect their information too.
Fifth, take notes as to where your vehicle is going, if towed. Usually, vehicles are damaged to such an extent that they need to get sent to a body shop. It is important to have the body shop and towing information for the future.
Sixth, go to your doctor and if you do not have a primary care doctor, go to a hospital. Even if your injuries are not severe, it is important to seek treatment as soon as possible. Attorneys are not doctors, and more often than not, neither are the individuals involved in the accident (as a matter of probabilities). Doctors are the best professionals suited to ascertain the extent of your injuries and how to treat it appropriately. Do not hold off going to the doctor, because it could lead to more medical problems.
Seventh, open up insurance claims with your own carrier and the carrier of the third party involved in the accident. Automobile insurance, required by law, will have information about your coverage, including whether you can obtain a rental, and how quickly your vehicle can be repaired, if at all.
Eighth, contact an experienced personal injury attorney. Accident lawyers know how to resolve personal injury disputes, deal with insurance companies, and preserve your rights. It is simply not smart to move forward without representation, because of the nuances of personal injury law.
This is not an exhaustive list, but these steps should be taken after an accident. Of course, accidents are frustrating, painful, scary, and annoying. But hopefully, this short blog can make the experience less frightening. We welcome your calls and questions; our firm would love to help if you or a loved one has been involved in a motor vehicle accident.
Wednesday, August 13, 2014
Despite these steps, people will sometimes take an item without consent. When this happens, the injured store will send a civil restitution demand letter to the perpetrator. Further, a theft charge is usually filed against the individual shortly thereafter. A misdemeanor or felony carries possible jail time, fines, and a permanent criminal record, which could affect employment in the future. So, theft can lead to both a civil and criminal case.
Under California law, when a person is charged with a theft crime, like petty theft, there may be an opportunity to have the charge dismissed.
A civil compromise is one way that a criminal charge can be dismissed. Pursuant to Penal Code section 1378, an injured party may indicate to the court that it has "received satisfaction" for the injury. In other words, the victim of the theft can represent to the judge that there was an agreement made between the parties. At that point, the trial court, in its discretion, may stay the prosecution and order the defendant to be discharged. The case cannot be adjudicated again. Let me be clear though that the judge is not obligated to accept a 1378 civil compromise. Also, a victim may not be open to a civil compromise.
While every company does not offer this type of civil compromise, a criminal defense attorney can certainly explore this option.
Moreover, a civil compromise is not the only way to successfully defend against a theft charge. A defendant may be able to argue insufficient evidence, or mistaken identity. There have been instances where an employee at the store made false accusations. A video may vindicate a defendant.
Similar to a drug diversion, sometimes a defendant can even receive a conditional dismissal. A conditional dismissal means that a court will eventually dismiss the case after a condition has been met.
My office has negotiated conditional dismissals in past theft cases. For example, one client had his petty theft charge dismissed after he completed 10 hours of theft classes. Such plea bargains enable the defendant to avoid jail time and other negative consequences.
Regardless of the different ways a case can proceed forward, it is important to have a criminal defense lawyer retained on your case. Experience and commitment goes a long way in a theft case. We welcome your calls and questions.