Thursday, December 19, 2013

Liable but broke: Why some legal battles aren’t worth fighting


While it may sound cynical, lawsuits are really about money. Injured people initiate lawsuits because they need money to cover their medical bills, help them cope with disabilities and time off work, and replace lost or damaged property. In fact, a basic principle of the tort legal system is that almost all injuries can be converted into a dollar amount. Of course, attorneys also need to be paid in order to keep their practices open and continue serving clients, and finally the legal system itself costs money to operate. As a result, after all the legal questions have been addressed, all the evidence gathered, lawsuits come down to a collection effort. The amount due, whether from an insurance settlement or a court ordered judgment, must be paid or the entire effort will have been for nothing. Unfortunately, some defendants simply don’t have any money, or at least not enough to pay for the damages they caused. Even where money is available on paper, actually getting those dollars to the proper person can sometimes be challenging.

Because of these issues, one of the factors that significantly impacts the viability of a lawsuit is the predicted ability to collect on any positive outcome; in short, the question of whether or not the plaintiff can actually get paid at the end. There are many reasons why collecting on a judgment might be difficult. Sometimes even the best cases, those with clear liability on the part of the defendant and serious damages to the plaintiff, are just not viable in practice.

Indigent Defendants

The most common of these heartbreaking cases involve situations in which the defendant simply does not have any resources from which to satisfy their legal obligations to the injured plaintiff. It might be that the at-fault driver of the car that caused the pile-up only carried state-mandated minimum levels of car insurance (currently a mere $15,000/$30,000); nowhere near enough to cover a prolonged hospital stay or major surgery for even one person, let alone several passengers. Or perhaps the responsible party is simply low-income and has neither property nor a steady source of revenue from which to pay a judgment. Whatever the circumstance, the collectability of a suit may make even good legal situations into poor practical cases.

Bankruptcy

The threat of paying out on a judgment or settlement may drive a defendant to seek refuge in the bankruptcy system. In bankruptcy, many legal judgments can be discharged for mere pennies on the dollar, or sometimes for nothing at all. The bankruptcy process essentially gathers all of a defendant’s assets into a single pool and uses that pool to pay as much of the defendant’s debts as possible. In other words, if a defendant has 100,000 worth of debt and only 50,000 worth of assets (property, savings, etc.), the bankruptcy courts will use their authority to distribute that 50,000 evenly among the creditors; each of whom will collect approximately 50 cents for every dollar they were originally owed. At the end of this process, each of the debts that were addressed by the court will be considered settled in full, thereby wiping out any further capacity to collect on those debts. In many bankruptcies, the debtor has so few assets that almost nothing is paid to creditors. Where those creditors include an injured plaintiff, even the best of legal judgments may not earn the plaintiff any real payment.

Medical Providers and other outstretched hands...

In many personal injury cases, a plaintiff is left with substantial medical bills. Even where some portion of these bills is covered by health insurance, the policies frequently include provisions which give the insurer some right to at least a part of any eventual legal settlement. Known as subrogation rights, these provisions may mean that a successful plaintiff obtains a settlement or judgment, collects the money, and then has to turn around and give a large portion of those dollars to an insurance company to repay them for the cost of earlier care. Where there is no insurance, medical providers may seek payment from a legal settlement directly. In some situations, cautious defendants will even seek to pay such providers directly, in others insures may get a court order to directly pursue some of the settlement or judgment. Effective attorneys understand when and how these kinds of subrogation and payment demands will develop and can advise a prospective client about the repercussions of the case right at the outset.

Costs of trial

Even where eventual payment seems likely given the resources of the defendant in question, the costs of running a trial to the point of collection can be prohibitive. Sometimes to win a trial money must be spent; occasionally large amounts of money. To make matters worse, some cases take many years to work their way through the courts. In these situations, someone has to cover the ongoing costs of managing the case. These costs don’t just include lawyer’s fees but can also stem from the charges of experts, document fees, or the costs of obtaining evidence. While many personal injury attorneys work on a retainer system under which they get paid only at the end of a successful case, the risks involved might be simply too high to merit a substantial up-front investment.

What it all means

In the end, what most plaintiffs really care about is being made whole for their injuries; about collecting money to cover their expenses, pain, and other losses. Unfortunately, even where there is a clear legal case, even experienced attorneys may sometimes be unable to take it because of the low probability of obtaining payment or because of the high costs of trial. While most personal injury attorneys really do understand and appreciate the pain and suffering of their clients, some cases just do not have a sufficient likelihood of a positive collection effort to be worth taking. No matter how much an attorney wants to take a case, no matter how sympathetic a client’s plight, if there is no way to get paid at the end, no one comes out better off from a fruitless legal battle.

Monday, December 2, 2013

Innocence Under Threat

The Innocence Project Logo
300 exonerated, Too many wrongfully convicted.

To most people, largely those who have never been under its supervision, the Criminal Justice System in America is about catching the guilty and punishing them; removing them from society. From this perspective, justice equals a conviction, and perhaps a sufficiently severe sentence. Constitutional guarantees like the right to an attorney, the protection against forced self-incrimination, or provisions for the humane treatment of suspects are roadblocks to justice; merely tolerated in a civilized era. To society at large, the justice system is effective. Suspects are almost as good as convicts, confessions obvious signs of guilt, and eyewitness identifications nearly the word of god. “Getting off on a technicality,” is the buzz phrase the lay observer caustically tosses at anyone the system exonerates despite even a modicum of evidence.

To individuals like Sylvester Smith, convicted for the molestation of two little girls he never touched, the justice system has a darker side. Smith served 20 years for a crime he was later conclusively proven not to have committed while the real offender ran free, eventually committing a murder which would have been prevented had the system not misidentified Smith as the primary suspect in the molestation case. Few people, however, stop to fully consider this other side of the system, to understand the reason behind the protections afforded to criminal suspects by the law, or to appreciate their necessity.

A system in jeopardy

Unfortunately, statistics paint a rather grim picture of the efficacy of our criminal justice system and stories like Smith’s are far too common. While a large portion of offenders are indeed caught and convicted, grave injustices abound. Despite the hard work of a great many astute detectives, conscientious prosecutors, diligent defense attorneys and dedicated judges a shockingly high number of completely innocent individuals are caught and ground to pieces in the wheels of justice; sometimes in clear violation of state and federal civil liberties. While exact numbers of wrongful convictions are hard to gauge, a recently released report shows that more than 2000 felony convictions have been overturned as unfounded since 1989, over half due directly to police scandal. The average wrongful prison sentence: 13 years.

Faced with this harsh reality, some activists are pushing for much needed reforms. At the front of the pack is the Innocence Project, a non-profit organization dedicated to utilizing DNA evidence to overturn the convictions of innocent suspects. Among the several issues identified by the innocence project as most commonly leading to a wrongful conviction, erroneous eyewitness identification, false confessions, and faulty scientific evidence are the worst offenders.

Mistaken Eyewitnesses
According to Innocence Project statistics, 73% of defendants exonerated by post-conviction DNA testing were put behind bars due in part to mistaken eyewitness identification. Despite the fact that research consistently demonstrates the inherent unreliability of such identification (in fact, eyewitness identification has been shown to be one of the least reliable pieces of evidence in a criminal trial), most jurisdictions continue to utilize the tool and juries treat such identifications as nearly infallible in practice. There are, however, ways in which eyewitness testimony can be used without sacrificing justice for the sake of efficiency; and reforming the use, and collection, of eyewitness testimony is critical to improving the quality of our judicial apparatus. 

False Confessions
While confessions are often considered the gold-standard of criminal evidence and few people who have not faced a harsh police investigation can imagine ever offering a false confession, a surprisingly high number of wrongful convictions nonetheless involve this particularly troublesome item of evidence. The subject of two different Constitutional provisions --the fifth and sixth amendments-- and a number of widely recognized Supreme Court decisions, Miranda warnings are perhaps the best known, confessions can be problematic at best, yet once submitted to a jury they are almost always damning.

Bad Science
Scientific evidence can often go awry; responsible for about 50% of wrongful convictions which were later overturned by new DNA evidence. While DNA analysis or fingerprint matching, for example, have undergone rigorous scientific exploration and demonstration, individual investigative and lab practices vary dramatically throughout the country, sometimes even throughout a single state. Unless carefully managed, such scientific evidence is less than worthless and, in some cases, actually leads to disastrous results. Contaminated samples, improper transportation and handling, and lab mistakes can all lead to false positive connections which in turn can lead to wrongful convictions.

Reform

Serious problems face our nation’s criminal justice institution and the work done by the Innocence Project and other similar organizations is vital, both to the innocent convicts exonerated as a direct result of these groups’ efforts and to the population as a whole made safer by the systemic reforms for which these organizations advocate. To learn more about these serious problems and the ways in which you can help to improve our system of justice, please visit the Innocence Project directly. To see whether you or a loved one has a valid post-conviction case, contact our office.

Monday, November 18, 2013

Do I Need Uninsured Motorist Coverage?


Clients frequently ask me what uninsured motorist coverage means and if it’s something they need to buy with their car insurance policy. In a perfect world, the easy answer would be no. Why pay for insurance coverage for other people who are already required by law to buy their own policies? Unfortunately, the reality in California is somewhat less idyllic. While it is true that California law requires all drivers to maintain sufficient financial responsibility (practically speaking, car insurance), the unfortunate truth is that far too many drivers are on the road without insurance coverage. In fact, as of 2004 -- the last year for which statistics are reported on the State’s insurance portal, just over 14% of California drivers did not have even the minimum insurance coverage required by law.

Many more drivers carry only the state minimums--currently $15,000 per person, $30,000 per incident, a level sufficient to cover only the most minor of accidents. As a result, California drivers are generally advised to carry Uninsured/Underinsured Motorist coverage riders on their car insurance policies. Here is an overview of what each term means and how such coverage can help to protect you and your passengers.
Uninsured Motorist Coverage

Uninsured motorist coverage (UM) is insurance provided by your own insurance company which will pay you, and your passengers, for injuries caused by another at-fault driver who does not themselves have any insurance coverage for the accident in question. In other words, it’s coverage you buy for other people who might hit you. This type of coverage is necessitated by the fact, as noted above, that so many California drivers don’t carry sufficient insurance of their own.

Frustrating as it may be to pay for insurance which is essentially designed to cover someone else’s actions, the benefits often far outweigh the costs. While the cost of obtaining UM insurance varies depending on the amount of coverage, the company providing the policy, and the vehicles or drivers for which coverage is sought, the costs of an accident often greatly exceed any such premiums; frequently to the tune of several thousand dollars.

For example, according to statistics provided by the California DMV, the average cost of a level 1 accident--the least severe accident type on their scale-- is over $12,000; a number that greatly exceeds the usual cost of retaining UM coverage for several years. In other words, a single accident in which your insurance company pays you out of UM coverage is likely to more than make up for what most people spend on such coverage.

Underinsured Motorist Coverage

Underinsured motorist coverage (UIM) is similar to UM coverage except that it steps in even when the other driver has insurance but where that person’s coverage is insufficient to pay for the extent of the damages they cause you. In other words, it’s insurance you buy to cover people who don’t buy enough insurance of their own.

There is one small catch to UIM coverage. The at-fault party’s available insurance is deducted from the amount your company will pay you out of your UIM policy. For example, let’s say that someone hits you and is found at-fault; causing you $30,000 in damages. Let’s further say that this defendant had state minimum coverage of only $15,000. Finally, let’s say that you have chosen to purchase UIM insurance in the amount of $30,000. After the dust settles, you’ll collect $15,000 from the offending party’s insurance carrier (their policy limit) and an additional $15,000 from your own UIM coverage ($30,000 in UIM coverage - $15,000 from the other party), for a grand total of $30,000 in damage compensation.

As this example demonstrates, a driver who did not buy UIM coverage would find themselves left with $15,000 in unpaid expenses as a result of the same accident. As with UM coverage above, the cost of obtaining UIM coverage is usually much less than the cost of covering the other party’s insurance gap out of your own pocket.

Health Insurance is not the same

Many people counter that they have health insurance that will cover the costs of treatment after an accident and ask if this will reduce the incentive to purchase UM and UIM coverage. The answer is a solid NO. Health insurance is not the same thing as accident insurance. Health insurance is not designed to compensate you for the whole of an accident, it only covers your medical expenses. Health insurance will not pay you for lost wages, will not pay to fix your car, and will not cover your passengers, unless they have their own health insurance coverage. Additionally, health insurance is often not comprehensive. Some medical treatments are not covered at all, others are covered only for a limited period of time, and still others are covered only after expensive co-pays and deductibles are met out of pocket.

Having health insurance will help to smooth the recovery process after a car accident, but it does not come close to replacing proper liability insurance in most situations. Don’t gamble with a patchwork of coverage when UM and UIM coverage are so readily available.

They’re required to offer

In California, insurance carriers are required to offer Uninsured and Underinsured motorist coverage with all car insurance policies that they sell in the state. If you need more information about obtaining this kind of coverage for you or your family, we strongly recommend that you contact your insurance carrier immediately for details. Further, if you have been involved in an accident, we can aggressively handle your case so you can recover all that is owed to you; including the claims that may fall under your UM and UIM coverage in your own insurance policy.

Monday, November 4, 2013

Early Parole for Juveniles is the Right Move for California

Elizabeth Lazano, center, was 16 when she was sentenced to
life in prison for a murder her boyfriend committed

“How we treat our children defines our society and defines us as human beings,” says California Democratic State Senator Leland Yee. Unfortunately, when it comes to criminal justice, the United States doesn’t have a great record with regard to child defendants. Currently California has over 6,500 inmates serving adult style sentences for crimes they committed as children, 309 of these teens were incarcerated for life. While some of these kids may have deserved a harsh sentence, almost half were convicted as accomplices only and some are currently leading exemplary lives.

Elizabeth’s story

Inmate Elizabeth Lozano is one of them. Involved with an LA street gang in the early 1990s at the age of only 16, Elizabeth was present when her boyfriend shot and killed another gang member. Sent to Mexico by her frightened parents, Elizabeth returned to the United States two years later, then pregnant with her son and completely unaware that she was a wanted person. She was shortly arrested for the two-year old killing and was eventually sentenced to life without parole as an accomplice to the murder. Elizabeth played no direct role in the victim’s death.

Today, Elizabeth has most of a college degree and works as a prison counselor helping to keep other kids out of the gang lifestyle. She is now 37 years old and has spent more than 21 years in prison for a murder she didn’t herself commit. While there is no denying the tragedy of the life lost in Elizabeth’s case or the pain suffered by the family of the victim, it’s hard to rationalize the additional cost of having to detain Elizabeth for a life sentence.

No mandatory life sentences for kids

The United States Supreme Court agrees, at least partially. In 2012 the court ruled that mandatory life without parole was inappropriate for juveniles, even those who are tried as adults, insisting that judges must have the latitude to decide the appropriate sentence taking into account the reduced culpability of children and the special circumstances of the individual situation. In the last year, California has gone two steps further, first requiring the state parole board to consider early release for minors convicted as juveniles and later requiring the board to do the same for minors tried as adults, even those originally sentenced without the possibility of parole.

Governor Brown agrees

Signed by Governor Brown in September of this year, Senate Bill 260 gives prisoners like Elizabeth a second chance at life. Opponents of early release argue that the crimes these children committed warrant harsh sentences, a position that is hard to support given the fact that so many of the affected inmates were convicted only as accomplices. “Our hearts go out to those families [of victims], but if it turns out there's a way of salvaging another life, shouldn't we also look at that?," says Senator Yee in a recent interview, espousing the opinion of a growing majority of psychologists and behavior experts. “Petty much everyone agrees [these defendants have] less culpability,” says children’s rights advocate Elizabeth Calvin.

It’s the right thing to do

Children are our nation’s greatest treasure. When teens, especially young teens, commit crimes, it’s hard not to feel some of the blame as responsible adults. Locking these kids up for life because of mistakes they made in their youth is just too convenient a solution, one that often ignores the larger social problems which may be root causes of some of the crimes under consideration. Fortunately the California legislature recognizes this and is working hard to strike a better balance between protecting victims and salvaging the lives of young offenders.

Monday, October 21, 2013

What Happens When Both Drivers Are at Fault?


Most people understand the basic elements of liability in a car accident. If you hit someone, you’re responsible; if they hit you, they’re responsible. However in real life situations, things are usually not so clear cut. Real accidents have multiple causes and sometime it seems that no one, or everyone, is to blame. Historically the law has struggled with this dynamic, usually falling on the side of caution by choosing to assign the blame for a confusing accident to one of the involved parties under the theory that if you were mostly at fault, you should pay.

However, over the years this method lead to some inequitable results and California law has evolved to better assign rights and responsibilities in complicated tort situations. The modern theory, broadly called comparative fault, attempts to assign financial responsibility for an accident proportionally with actual responsibility. Sometimes called contributory negligence, this theory seeks to determine to what degree each party contributed to the incident and allows everyone to collect against, or deduct against any other party that added something to the accident.

Comparative Fault In California

Let’s say, for example, that Driver A and Driver B are involved in an accident. At trial it is determined that Driver B was 20% responsible and Driver A was 80% responsible. Let’s also say that both drivers suffered total damages $100,000 each. Under California law, Driver A is entitled to collect $80,000 from driver B; representing Driver B’s proportional contribution to the accident. Likewise, Driver B is entitled to collect $20,000 from Driver A, representing Driver A’s contribution to the accident. With offsets, Driver A will wind up with $60,000 from the incident (after paying their share of Driver B’s damages). In other words, both drivers are allowed to collect from each other relative to how they contributed to the incident.

Joint and Several Liability

A related concept addresses how multiple defendants, who each contributed to an accident, must share the financial responsibility of covering their victim’s damages. While this area of the law can sometimes get complex, the basics are as follows: Let’s say that Driver A is simultaneously hit by both Drivers B and C and incurs $100,000 in damages as a result. At trial, Driver B is determined to be 80% at fault and Driver C 20% at fault.

In theory, Driver C should only have to pay $20,000 of the damages; after all they only caused 20% of the accident. However, to spare Driver A, the victim, from the hassle of having to sue, and collect from, multiple difficult parties, the law demands that both Drivers B and C are liable to Driver A for the full amount of the damages until the entire $100,000 has been paid to Driver A (note: Driver A cannot collect more than $100,000 in total). Drivers B and C can later settle between themselves for any overpayment made by one of them, at which time they will be allowed to argue their relative contributions and responsibilities in a legal process called subrogation.

Even if you’re at fault…

The lesson, of course, is that even if your actions contributed to an accident, you may still be able to collect something for your damages. An experienced attorney will be able to help you determine exactly what your options are, allowing you to proceed armed with the information you need to protect your legal rights. Don’t delay, accident lawsuits are subject to a statute of limitations which means that if you wait too long you may jeopardize your rights.

Thursday, October 10, 2013

Leaving the Scene Could Make You A Felon

Three-Year Old Tariyah Williams
When three-year old Tariyah Williams darted out of her yard into the street, Florida driver Eric Clayton barely had time to brake before hitting the little girl. Eric stopped, carried the child back to her yard, spoke a few words to witnesses, and abruptly left the scene of the accident. Tariyah later died from her injuries and Eric turned himself into the local police station. He is now facing up to 15 years in state prison on felony-hit-and-run charges. The irony; media reports suggest he may not even have been at fault in the incident and, if so, would likely have been able to walk away from the accident with nothing more than his memories to haunt him.

 

Take responsibility

Car accidents are serious and stressful enough. Exacerbating the circumstance by leaving the scene of an accident can turn an already difficult situation into a misdemeanor or a felony in California; even if you did not cause the accident.

Under California Vehicle Code 20002, drivers are required to do the following:

  • Immediately stop your vehicle
  • Give the other party your identifying information  (your name and current address) 
  • If other parties are on the scene, provide your driver’s license and vehicle registration upon request. 
  • If you are not the owner of the car you were driving, you must provide the name and address of the car’s registered owner.

 

Criminal charges

Failure to do the above could result in a misdemeanor hit and run charge. Misdemeanor hit and run charges carry steep penalties. If you are convicted you could face up to a $1,000 fine, or six months in a county jail. Even if the accident was not your fault!

Beyond that, if you injure or kill someone in an auto accident and flee the scene, you could be charged with a felony hit and run. A felony hit and run carries penalties including a fine of between $1000 and $10,000 dollars, and 16 months to 3 years in state prison. If someone was killed or suffered a permanent serious injury in the accident, the state prison sentence increases to two to four years.
  

Dangerous circumstances

In some circumstances, it might not be safe to remain at the scene. For example, if you need medical attention yourself, you absolutely should make sure that your injuries are treated; even if that means heading for the hospital. Additionally, exigent circumstances might make staying on the scene dangerous. At times, upset relatives or other witnesses may pose a threat or traffic or weather conditions might be unsafe. However, before you leave the scene of an accident, make sure that you have a concrete reason for doing so.

 

It’s the right thing to do

Regardless of who is at fault in an accident, all parties involved should stay on the scene and do whatever is necessary to help resolve the situation. Injured parties should be attended to, the police should be called, insurance and contact information should be exchanged, and efforts should be taken to clear the way for other traffic to avoid additional collisions. Even without a legal duty, these things help to make the roads safer for everyone and remember; if you were the injured person, you’d want someone to stay and help you.

Saturday, September 21, 2013

Are Felons the Next Protected Class?

According to the National Employment Law Center, a labor-affiliated advocacy group, one-in-four adult Americans in the U.S. have a criminal record. That’s sixty-five million Americans.  It is no surprise that policies are changing regarding whether employers can exclude individuals from employment based solely on a past conviction. That means employers should and are reconsidering blanket criminal background checks on employment applications.

Policy changes are being spearheaded by the Equal Employment Opportunity Commission and the private-sector under the ban-the-box campaign; new laws are appearing across the United States.

First, the EEOC warns private-sector employers that they could expose themselves to substantial liability unless they narrow the use of arrest and criminal convictions when making employment decisions. For example, when a minority applicant is disqualified for a job based on a criminal background check, there is support for a finding of racial discrimination.  Employers are being investigated by the EEOC for blanket criminal background checks even without direct evidence of blatant discrimination.

Second, arrest records, unlike criminal convictions, do not establish criminal culpability. As such, the EEOC says that employers should not use them in hiring decisions. Employers should wait until further into the hiring process before asking about criminal history and should only ask about incidents that are job-related.  Consistent with the EEOC recommendations, several states and local governments have “banned the box,” removing questions about criminal convictions from job applications.

In addition to a “ban on the box”, the EEOC recommends that private-sector employers use individual assessments that consist of multiple factors before making an employment decision based on criminal history.

Regardless of the EEOC’s findings, a Certification of Rehabilitation or Expungement may help with future employment opportunities for those with a criminal history.

Certification of Rehabilitation

A certification of Rehabilitation is a court certified document that declares the person is now obeying laws and demonstrating good moral character. The purpose is to restore rights of citizenship to ex-felons and some misdemeanants who can prove that they are rehabilitated.

To apply for a Certification of Rehabilitation, there are several requirements under Cal Pen Code section 4852.01.

The benefit of a Certification of Rehabilitation is that the person will receive the right to vote and other civil and political rights related to citizenship previously denied. However, a Certification of Rehabilitation does not erase the underlying record of conviction.

Expungement

Expungement is a petition to the court to dismiss a person’s criminal conviction. Generally, to qualify for an expungement in California, a person must be convicted of a misdemeanor and never given probation or the person must have completed their probation.

If convicted of a felony, a person can request an expungement if they have completed probation (where required) and if they were not sentenced to a state prison.

Expungement is beneficial because a criminal conviction will not be accessible by employers or other private-sector entities.

Sunday, September 8, 2013

Personal Injury Claims against the Government


Under early British common law, the antecedent to American legal principles, lawsuits against the government were not permitted. At the time, all law was the purview of the sovereign and no monarch was interested in allowing themself to be sued. As more democratic systems of government developed, the argument evolved. In early American law, claims against the government were bared on the ground that the government was essentially composed of the people and it seemed antithetical to principals of collective action to allow the negligence of a single government employee to drain the public coffers.

This governmental immunity from liability was first waived in California with the passage of limited express exceptions in 1923. During the years that followed, common law developments and judicial decisions somewhat expanded the short list of exceptions, particularly with regard to dangerous properties. The result was a complex and uncertain collection of exceptions and exceptions to exceptions that produced varying outcomes even among similar cases.

Tort Claims Act

In 1963 the California legislature passed the California Tort Claims Act, now codified in Government Code 815 et. seq., to level the playing field. The comprehensive law eliminated most of the previous body of law with regard to governmental immunity and replaced it with a unified set of requirements that every potential plaintiff must follow before suing a public entity. Principal among the new regulations was a requirement that an injured party file an official claim with the entity in question no longer than six months after learning of the injury. Only after an agency denied that claim, either in whole or in part, could a person continue with a traditional lawsuit against the government.

What kind of lawsuits qualify?

The Tort Claims Act also specifically defined the circumstances under which a governmental entity could be held liable for personal injury. Specifically, the following five elements must generally be present.

  1. The injury must occur on public property

  2. The property must be dangerous

  3. The risk of injury must be reasonably foreseeable

  4. The dangerous condition must have been created by the negligence of a government employee acting within the scope of employment or the agency must have had reasonable notice of the danger and time to correct it.
In addition, a plaintiff must be able to prove that the dangerous condition was the proximate cause of the injury; a legal term-of-art that essentially means the injury must be an expected and normal result of the dangerous condition.

Suing government employees?

Under the law, government employees are generally liable for their actions in the same way as are private citizens. However, the government will step in to cover the damages of a liable employee if the plaintiff’s injury resulted from actions the employee took while acting in the scope of employment. However, there are a number of specific immunities and other requirements that apply to certain situations so careful investigation of the underlying circumstances is imperative.

Filing a claim

In order to bring a lawsuit against the government under the Tort Claims Act, the injured person must file a sufficient claim with the public agency in question within six months of learning of the injury. This requirement is somewhat complex in that claims must be legally sufficient and properly filed. However, public agencies are required to simplify the process somewhat by maintaining a public notice regarding how to file a claim against that agency. In addition, agencies must respond to claims within certain specific time frames and their failure to either post a sufficient notice or respond timely to claims may waive their immunity under the law.  This area of the law is complex and care must be taken when preparing and filing claims.

Childhood Sexual Abuse

Under a recent change to the Tort Claims Act, claims for injuries resulting from sexual abuse which took place after January 1st, 2009 are handled differently than most other types of injuries. Such claims have an extended filing requirement.

Mandatory Duty

Certain public agencies are required by law to take steps to prevent some types of injury to the public. In cases where an agency fails to fulfill its duty under such a law, injured parties may have additional expanded options for recovering from the agency. However, the plaintiff’s injury must be of the type the agency was supposed to protect against.

Bottom line

Suing the government is not easy. A number of specific legal hurdles have been developed to give governmental entities special protection against liability. If you have been injured on public property or by a government employee, you may have even less time than usual in which to take legal action. You cannot afford to wait until you are feeling better or until you have all the facts collected before starting the legal process. The good news is that there are ways to recover from a public agency if you fulfill all the prerequisites such as timely filing a completed claim with the agency. Act quickly to protect your legal rights.

Friday, August 23, 2013

Insurance Bad Faith


Insurance Bad Faith Law Gets an Update

California has long been considered a benchmark state with regard to the development of insurance bad faith law. What California pioneers, many other states often implement. As such, updates to California’s bad faith landscape have wide reaching impact on the larger body of insurance bad faith law. For consumers and attorneys alike, maintaining at least a basic understanding of the state of the law in California can have significant benefits.

What is bad faith?

For the layperson, bad faith law essentially makes insurance companies liable if they treat their clients unfairly. What exactly constitutes unfair treatment is complex, and currently under some flux, but the summation is as follows; implied in every contract is a commitment to treat the other parties fairly as the contract unfolds. Known as the implied covenant of good faith and fair dealing, this provision ,imposed on every contract by operation of law, requires parties to act in good faith as they carry out their duties under the agreement. In playground terms: No Cheating.

In the insurance setting, the list of things that constitute “cheating” by an insurance company is fairly long. Some types of bad faith are defined in specific laws while others are simply enforced by courts based on reasonable expectations. Some of the most common mistakes an insurer might make, and thus leading to potential liability, include:

  1. Withholding information from an insured, the beneficiary of a policy.

  2. Refusing to settle a claim for which liability is reasonably clear, otherwise known as “gambling with a client’s money.”

  3. Low-balling, or giving extremely unreasonable, settlement offers.

  4. Wasting everyone’s time with baseless delays; legal or procedural.

Third-party rights

In the world of insurance litigation, a third-party is anyone who stands to collect a benefit, such as monetary payment, from an insurance contract owned by someone else. This might include hospitals which provide treatment to an injured person based on an expectation of later receiving payment out of an insurance settlement or the injured plaintiff themself in any lawsuit that may ultimately be covered by a defendant’s insurance policy. While the definition of a third-party is relatively clear, what rights those entities may have has changed somewhat over the years.

In August the California Supreme Court ruled that, while third-parties cannot sue an insurance company for bad faith unless they have some contractual relationship with that insurance company, other avenues may cover the same ground. In other words, bad faith is a legal remedy reserved for people who are actually contracted with an insurance company and is designed to help those people gain the full benefits of their arrangements. That is, the policies for which consumers pay good money for, should give a benefit in the event of an occurrence. But this understanding of bad faith law does not preclude lawsuits based on other legal theories just because the underlying facts might support both types of suits.

Other avenues

The Court’s ruling leaves open some potentially novel avenues by which third-parties, typically the plaintiffs in personal injury lawsuits, can pursue insurance companies for bad-faith like practices, even in circumstances traditionally blocked by limitations to third-party suits. In another recent decision, a California Court of Appeal further expanded these options when it allowed a third-party to sue a defendant’s insurance company for bad faith, failure to notify the injured party about a claims reporting deadline, under a med-pay clause of a policy for which primary liability had already been settled.

Plaintiff’s bottom line

While the full extent of these rulings will not be known until more cases come down the pipe dealing with these issues, recent rulings may provide injured plaintiffs with an expanded range of possible options for recovering their damages in some situations. This ultimately makes it more likely that your attorney will be able to get you the settlement to which you are entitled. Stay tuned as we continue to monitor the ongoing developments in this critical area of personal injury law.

Thursday, August 22, 2013

Pedestrian & Bicycle Accidents


Vehicle accidents are bad; vehicle accidents involving pedestrians are worse. If you have been hit while jogging, riding your bicycle, or just crossing the street, we can help. Drivers are required to operate their vehicles with due care, and when they act negligently it can have potentially dangerous consequences.

There are many different causes for pedestrian or bicycle accidents, but most involve vehicle collisions with innocent bystanders. Some of the more common collision occur when:

  • A driver is distracted because of actions that he taking while driving, i.e. texting, eating, sleeping
  • Drivers fail to yield because they do not know the California Vehicle Code
  • Drivers fail to give right of way to pedestrians because they are in a rush
  • Drivers lose control of the car due to excessive speeding and improper lane changing
  • Drivers disobey traffic signals because of lack of due care
  • Drivers fail to utilize headlights when conditions require that they be utilized.

Survivors of any of these types of accidents often have a long road to recovery and can incur large medical bills in the process, not to mention the pain, suffering and disruption of normal life activities they face. A good personal injury attorney can help to simplify the process by working with insurance companies, dealing with the other parties involved, and arranging for appropriate medical coverage as necessary. If you've been inured in an accident, don't jeopardize your legal rights or postpone your medical treatment, contact an attorney immediately.

Dangerous Properties


Negligent property maintenance, dangerous conditions, even improper lighting can all lead to premises liability. If you have been injured or attacked while on someone else’s property, such as a store, parking lot, pool, or bar, you may have legal rights. Landlords, property owners, and even shopkeepers may face liability when they fail to maintain safe premises. We can help to ensure that you receive the compensation you deserve.

The owner of property has a duty to use reasonable care to keep the property safe from dangerous conditions. However, it is not too uncommon, for a resident, manager of a property, or independent contractor working on the premises who causes the premises to become unsafe.

These individuals could potentially be liable for the injuries incurred on the property that was unsafe. Most of the time it will come down to who had control of the premises. If a manager has the right to control property, then that manager must exercise control in a reasonable manner to prevent foreseeable injuries.

Furthermore, an owner or occupier of property must use reasonable care to inspect the property and discover any unsafe conditions. The owner or occupier has a duty to correct, repair, replace, or give adequate warning of any condition that could be reasonably expected to harm others.

Wednesday, August 21, 2013

Gang Enhancement


A gang enhancement is not technically a separate crime but rather an extra charge that increases the penalties available for conviction of a number of underlying offenses. You might be charged with a gang enhancement if the prosecution thinks that you committed a crime for the benefit of a gang. Specifically, a gang enhancement adds an extra layer of punishment on top of the punishment you might face for the underlying crime.

In other words, a gang enhancement allows a judge to add additional, consecutive time to the maximum penalty for crimes if it is found beyond a reasonable doubt that the defendant has committed criminal acts for the benefit of his gang. While the California Street Terrorism Enforcement and Prevention Act makes it a crime just to be an active member of a gang, a gang enhancement requires that a felony charge, other than a gang charge, be lodged against the defendant.

A successful conviction under the gang enhancement statutes could add anywhere from 5 to 25 years to your sentence. But being charged with a gang enhancement is not the same as being convicted.

There are defense strategies available like:

Challenge the underlying felony

If there is no underlying felony, there can be no gang enhancement. Specific defenses apply to different sets of crimes, and it always dependent on your particular case. Common defenses used include, but are not limited to: self defense, defense of others, and coercion.

Prove that you are not an “active participant” in a gang

Gang enhancements cannot be added to a sentence unless the defendant's active participation in a criminal street gang is proven beyond a reasonable doubt.

Prove that you were not acting “for the benefit” of a gang

Similarly, a defendant cannot be given a gang enhancement if the underlying felony had nothing to do with the gang. A defendant can argue that they committed the felony solely for personal reasons. One example of a case that I worked on was an attempted murder case, in which the defendant shot his brother-in-law for hitting his sister. The prosecution tried to prove that he committed the criminal act for the purposes of benefiting the gang.

If you are facing criminal charges you should seek legal help immediately.

Assault & Battery

Assault

Though often used interchangeably, assault and battery are two different crimes with different possible punishments. Roughly speaking, an assault is an attempt to hit someone while a battery is a successful attempt to hit someone.

Under California Penal Code §240, an assault is an intentional attempt to apply of force another person coupled with the present ability to carry out that intent. The prosecution must prove all of the following elements to convict a defendant of assault.
  • Willfully 
  • Taking an action likely to cause an application of force to another person
  • With the present ability to cause an application of such force 

Battery

A battery is defined in CPC §243 and includes all the elements of an assault coupled with an injury. Specifically a battery conviction requires the prosecution to prove that the defendant:
  • Willfully 
  • Used force or violence 
  • Upon another person 

Both charges have several possible defenses depending on the circumstances including self-defense and you should seek immediate legal assistance if you have been charged with an assault.

Murder


In general terms, murder means taking the life of another person. However, the specific crime with which a defendant can be charged varies significantly because under California law there are a number of degrees of murder ranging from attempted murder to first degree murder. California law actually has three broad categories of murder, each with multiple sub-categories.


First-Degree Murder

Murder in the first degree involves the premeditated killing of another person. Under certain circumstances, the prosecution may seek the death penalty for a first-degree murder. You can be convicted of first-degree murder if:

You committed a murder:
using a destructive weapon or explosive, a weapon of mass destruction, ammunition primarily designed to penetrate metal or armor, or poison; or
by lying in wait for someone or inflicting torture
by a killing that was willful, deliberate, and premeditated; or
if someone dies while you are committing certain felonies (described under the Felony Murder Rule).
<;br />A capital murder is one in which the prosecution may seek either the death penalty or life in prison without the possibility of parole and can be charged whenever there is a murder with special circumstances such as:

  • a murder involving more than one victim
  • murdering someone for financial gain
  • murdering a police officer, firefighter, prosecutor, judge, juror, or elected official
  • murdering a person because of their race, color, religion, nationality, or country of origin
  • murdering someone while discharging a firearm from a motor vehicle
  • murdering someone for the benefit of a gang
  • murdering a witness to prevent them from testifying
  • certain felony murder situation

Second-Degree Murder

Generally, a second-degree murder is a murder in which the killing was willful but not deliberate and premeditated. This could include actions such as shooting a gun into a crown or driving while under the influence and causing a death.

Felony Murder Rule

Under California law the felony murder rule can apply to both first and second degree murders. Essentially, the crime sets up liability for deaths which happen during the commission of a dangerous felony. The murder need not be intentional, even a negligent or unforeseeable death may qualify.

The first-degree felony murder rule only attaches to specific underlying felonies which are:
  • Arson
  • Robbery
  • Burglary
  • Carjacking
  • Train Wrecking
  • Kidnapping
  • Mayhem
  • Torture
  • Sex Crimes such as rape, forced oral copulation, forced penetration, and lewd acts with a minor
The second-degree felony murder rule can attach to any underlying felony which is both inherently dangerous and not specifically listed under the first-degree rules (see above).

The general elements of any murder are:
  1. Committing an act that results in the death of another person or a fetus
  2. Committing that act with malice aforethought, and
  3. That the killing was without lawful excuse or justification.

Getting Legal Advice

As you can see from the above material, a murder charge under California law can involve a lot of complex factors and the penalties differ substantially. If you have been charged with any type of murder you are strongly advised to seek legal counsel immediately to protect your rights.

Domestic Violence


Due to the stigma and severe penalties associated with domestic violence, it is not uncommon for individuals to falsely accuse another of domestic violence. The motivation could be as simple as revenge for cheating or an attempt to gain an advantage in a dissolution proceeding. It is important that you seek an attorney so that the whole truth may be disclosed. Far too often, the accused faces allegations that do not resemble reality. We will aggressively investigate the facts particular to your case and represent you passionately.


Corporal Injury on Spouse/ Cohabitant

California Penal Code § 273.5. (a) Any person who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child, corporal injury resulting in a traumatic condition is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to six thousand dollars ($6,000) or by both that fine and imprisonment.

Domestic Battery

California Penal Code § 243 (e) (1). When a battery is committed against a spouse, a person with whom the defendant is cohabiting, a person who is the parent of the defendant's child, former spouse, fiancĂ©, or fiancĂ©e, or a person with whom the defendant currently has, or has previously had, a dating or engagement relationship, the battery is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail for a period of not more than one year, or by both that fine and imprisonment. If probation is granted, or the execution or imposition of the sentence is suspended, it shall be a condition thereof that the defendant participate in, for no less than one year, and successfully complete, a batterer's treatment program, as described in Section 1203.097, or if none is available, another appropriate counseling program designated by the court. However, this provision shall not be construed as requiring a city, a county, or a city and county to provide a new program or higher level of service as contemplated by Section 6 of Article XIII B of the California Constitution.

Corporal Injury on a Child

California Penal Code § 273d. Any person who willfully inflicts upon a child any cruel or inhuman corporal punishment or an injury resulting in a traumatic condition is guilty of a felony and shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 for two, four, or six years, or in a county jail for not more than one year, by a fine of up to six thousand dollars ($6,000), or by both that imprisonment and fine.

The above cited statutes are all domestic violence crimes, in which the victims are specially classified due to their vulnerability. Domestic violence is a serious allegation and comes with harsh punishments for those accused and convicted. The prosecution also has substantial discretion in pursuing a domestic violence charge, even if the victim desires to drop it.

A slight injury that causes a bruise or swelling is sufficient to be charged under the corporal injury statute. Under the battery statute, there does not need to be a visible injury.

Identity Theft


California Penal Code § 530.5 (a) Every person who willfully obtains personal identifying information, as defined in subdivision (b) of Section 530.55, of another person, and uses that information for any unlawful purpose, including to obtain, or attempt to obtain, credit, goods, services, real property, or medical information without the consent of that person, is guilty of a public offense, and upon conviction therefor, shall be punished by a fine, by imprisonment in a county jail not to exceed one year, or by both a fine and imprisonment, or by imprisonment pursuant to subdivision (h) of Section 1170.

Theft is not limited to personal property like vehicles, jewelry, and money. A defendant may also be charged with stealing or taking the identity of another. Identity theft is a felony that has gained the attention ion of the public. Technological and digital advances have made it easier for defendants to use an identity in an unlawful manner.

Even a simple “hack” of someone’s twitter account could lead to possible criminal liability under this statute. If a defendant used someone’s personal information to access a twitter account and post explicit information, without the consent of the accountholder, the defendant could be charged for identity theft because he committed an unlawful act. It does not have to be a criminal unlawful act; it could also be a civil tort.

Grand Theft Auto


California Penal Code § 487 (d) When the property taken is any of the following:
(1) An automobile, horse, mare, gelding, any bovine animal, any caprine animal, mule, jack, jenny, sheep, lamb, hog, sow, boar, gilt, barrow, or pig.

Grand theft auto is the crime of grand theft proscribed in subsection (d) of section 487 of the California Penal Code. Please see the section on “grand theft.” A defendant charged with grand theft auto may be able to face a less serious offense if he can prove that he did not intend to permanently deprive the owner of the vehicle. The crime of joyriding requires that the person intend to temporarily deprive the owner of the vehicle, and it usually is charged as a misdemeanor. It is important to be represented by an attorney in any legal proceeding. In the case you have been charged with grand theft auto, you need to have an advocate helping you to protect your legal rights.

Joy Ride Lesser Offense


California Vehile Code § 10851 (a). Any person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle, or any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing, is guilty of a public offense and, upon conviction thereof, shall be punished by imprisonment in a county jail for not more than one year or pursuant to subdivision (h) of Section 1170 of the Penal Code or by a fine of not more than five thousand dollars ($5,000), or by both the fine and imprisonment.

This crime is similar to grand theft auto in that involves a defendant taking a vehicle without the consent of the owner. Please see section on “grand theft auto.”

Typically charged as a misdemeanor, a defendant charged with this crime may be able to successfully defend on the theory of consent or lack of intention. Consent means that the owner of the vehicle gave you permission to drive the vehicle for a period of time. It is important to note that the defendant must stay within that scope of permission. For example, if a friend said that you may drive his Bentley to grab some groceries, you cannot drive the Bentley to Vegas. That would be outside of the scope of consent.

Our law office would also explore other defenses, like whether the defendant had the intent to deprive the owner of his or her title. Furthermore, with a crime like joyriding – police sometime engage in unconstitutional searches and seizures. We would be aggressive in our defense on possible constitutional issues.

Grand Theft


California Penal Code § 487. Grand theft is theft committed in any of the following cases: (a) When the money, labor, or real or personal property taken is of a value exceeding nine hundred fifty dollars ($950)…


The statute for this crime gets more complicated as it lists different ways in which a defendant may be charged for this crime. Furthermore, depending on the item stolen, the value needed for a grand theft may decrease to $250. Grand theft can also be committed in a myriad of ways. If you have been entrusted with property, and you embezzle it, you can be guilty of grand theft by embezzlement. If you defraud someone into giving his or her property to you so that you can permanently deprive them of it, you can be guilty of grand theft by trick. Regardless of how grand theft occurs, it is important that the person charged be represented by an attorney. Depending on the circumstances, we may be able to lower the charge to a misdemeanor.

Carjacking


California Penal Code § 215 (a). "Carjacking" is the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear.


This felony is not the same crime known as grand theft auto. Carjacking requires that the defendant take the vehicle with force or fear in the immediate presence of the owner or passenger. Therefore, if you have been charged with this crime and you believe that force or fear was not used, the prosecution may be unable to convict you. There are also many defenses available to a defendant charged with carjacking. A person may be wrongly accused of carjacking when there was an agreement for the defendant to borrow the car. A victim may also misidentify the defendant.

Petty Theft


California Penal Code § 488. Theft in other cases is petty theft. Shoplifting is a petty theft crime because a majority of the items stolen from a convenience store are valued under $950. Petty theft is the sister crime of grand theft and falls under the umbrella of “theft crimes.”

The crime may be a misdemeanor but that does not mean there are no consequences. A misdemeanor is on your record permanently and could affect future employment. It also carries a possible six month jail sentence, and three year probation period.

There is even the possibility that you pay a $1,000 fine. Attempting to steal a video game could cost you more than losing out on some quality gaming. It is always important to be represented by an attorney. Our office is aggressive in criminal defense and would explore all possible defenses, including the possibility that the defendant inadvertently held onto the merchandise as he or she exited the store.

Burglary


California Penal Code § 459. Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel…with intent to commit grand or petit larceny or any felony is guilty of burglary…

This crime, typically referred to as a “breaking and entering,” could lead to a six year sentence, in the event of a conviction. Burglary comes with harsh penalties but it does not mean that the prosecution does not have to prove their case beyond a reasonable doubt.

The prosecution will have to prove every single element of the offense for there to be a conviction. The most litigated element is typically the intent to commit a felony therein. For example, a defendant would not be guilty of burglary if he entered a building for the purposes of committing petty theft. Petty theft is a misdemeanor, not a felony.

We can aggressively defend you against this criminal charge. Because burglary can be charged as either a felony or misdemeanor, depending on the circumstances of your case, it is important to seek representation immediately.

Cocaine, Meth, and Other Drugs


California Health and Safety Code § 11350 (a). Except as otherwise provided in this division, every person who possesses (1) any controlled substance specified in subdivision (b) or (c), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code.

These crimes are similar to marijuana crimes. Please see the section on “Marijuana laws.”

Even with states like Colorado and Washington taking a liberal view on marijuana and recreational drugs, Federal law still prohibits the use, possession, transportation, and sale of marijuana and “hard” drugs. California has also been aggressive in prosecuting individuals under drug statutes that related to cocaine, meth, and other synthetic drugs.

Drugs can destroy lives and it can hurt families. Besides being a health issue, it is also a legal issue. Without adequate and aggressive representation by an attorney, a defendant could face legal consequences that could have been avoided. Do not face a drug charge without a lawyer who understands the law and procedure regarding your arrest and rights.

Marijuana Charges

Marijuana, or cannabis, is a legitimate drug that has proven medical benefits. It has assisted patients with chronic pain and has helped patients eat when they do not have the appetite to do so. Despite these benefits, it has been a punchline for comedians and a dividing topic among political officials.

California law regarding marijuana can be severe. The law prohibits a wide variety of behavior, including possession of even small amounts of the substance. To make matters worse, “the war on drugs” encourages police and law enforcement to engage in unconstitutional behavior. Drug enforcement agents have, in the past, entrapped defendants, performed unlawful searches, and exaggerated police reports.

The prisons in California are over-capacity. Prisoners face crowded conditions, which may be unconstitutional by itself. Defendants detained on drug crimes need to have adequate representation to ensure that their rights are preserved.

Marijuana Possession

California Health and Safety Code § 11357 (a). Except as authorized by law, every person who possesses any concentrated cannabis shall be punished by imprisonment in the county jail for a period of not more than one year or by a fine of not more than five hundred dollars ($500), or by both such fine and imprisonment, or shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code.

Marijuana Sale

California Health and Safety Code § 11357.5 (a). Every person who sells, dispenses, distributes, furnishes, administers, or gives, or offers to sell, dispense, distribute, furnish, administer, or give, or possesses for sale any synthetic cannabinoid compound, or any synthetic cannabinoid derivative, to any person, is guilty of a misdemeanor punishable by imprisonment in a county jail not exceeding six months, or by a fine not exceeding one thousand dollars ($1,000), or by both that fine and imprisonment.

Marijuana Cultivation

California Health and Safety Code § 11358. Every person who plants, cultivates, harvests, dries, or processes any marijuana or any part thereof, except as otherwise provided by law, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code.

Marijuana Transportation

California Health and Safety Code § 11360 (a). Except as otherwise provided by this section or as authorized by law, every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport any marijuana shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for a period of two, three or four years.

Marijuana Paraphernalia

California Health and Safety Code § 11364 (a). It is unlawful to possess an opium pipe or any device, contrivance, instrument, or paraphernalia used for unlawfully injecting or smoking (1) a controlled substance specified in subdivision (b), (c), or (e), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, specified in subdivision (b) or (c) of Section 11055, or specified in paragraph (2) of subdivision (d) of Section 11055, or (2) a controlled substance which is a narcotic drug classified in Schedule III, IV, or V.

Tuesday, August 20, 2013

Criminal Appeals

Have you or a loved one already been convicted of a crime? We can still help!

We have experience in all aspects of post-conviction criminal law including Expungements, Certificates of Rehabilitation, Habeas Corpus Petitions, Parole Hearings, and Prisoner's Rights defense.

Filing a Petition for a Writ of Habeas Corpus

The California Constitution gives citizens the right to file a petition for a writ of habeas corpus in extraordinary and unusual circumstances. The habeas petition allows a detainee to challenge his or her confinement. The most common ways to effectively challenge your conviction is through new evidence.

Appealing a Felony or Misdemeanor

When a person is convicted, it does not necessarily mean the case ends there. If the defendant feels as if there has been a legal error, the defendant may file an appeal. An appeal is a challenge of the record and it is limited in scope.

California Board of Parole Hearing (Lifers Hearing)

An inmate serving a life sentence, or “lifer,” in California may have an opportunity to be released on parole. Before the inmate is released, however, he or she must first appear before the Parole Board at a hearing. Attorney Chris Blaylock has helped prepare inmates for parole and has been three for three (3/3) on getting a parole date.

Expungement in California

A person who has committed a felony or misdemeanor in the past may have the possibility of removing from his or her record. In California, this process is called an expungement. While it does not completely eliminate your criminal record, it does give you certain protections against discrimination on the basis of the conviction.

Certification of Rehabilitation

Like an expungement, a California Certificate of Rehabilitation is a way to put a person’s conviction behind them. Although it will not erase a person’s conviction, it will be a declaration from California that the person is a law abiding citizen. It is difficult to pursue this without an attorney.

Prisoner’s Rights

An inmate has certain constitutional rights like all other citizens who live in a civilized society. This means that there must be some standard of decency at the prison where the inmates are detained. Criminal defense lawyer Attorney Chris Blaylock believes that inmates should be treated with dignity.