Defending Against a Minor in Possession Criminal Charge

America is different than Europe and the rest of the world in many ways. When it comes to alcohol, one big difference is the legal age an individual can purchase and consume alcohol. In California, a person must be 21 to purchase and consume an alcoholic beverage. Moreover, being a minor and possessing an alcohol beverage in public could lead to a criminal charge.

California Business and Professions Code section 25662 prohibits minors, under the age of 21, from possessing an alcoholic beverage in any public place. The short term for this offense is "MIP," minor in possession. A MIP is a misdemeanor, meaning that it carries potential ramifications on a person's criminal record. One cannot go to jail, but there is the possibility of significant community service hours.

Not as well-known is the penalty related to a person's driver's license. Pursuant to California Vehicle Code section 13202.5, a person convicted of MIP will face a one-year license suspension, or a one-year delay in obtaining a driver's license. Each subsequent offense carries an additional year of suspension or delay. Thus, a person convicted will not only face a fine, community service, criminal record, and a license suspension, he or she will also be burdened with trying to find transportation to and from obligations.

Like with every criminal charge, there are available defenses that could result in a dismissal. An illegal search or seizure, i.e. no probable cause, will be favorable to a defendant. Also, there are written exceptions to MIP. A person working as a waiter or server cannot be convicted if he or she is performing duties related to their employment.

Perhaps the most magnanimous decision by the legislation was to add immunity to a minor who calls 911 for purposes of aiding a minor who needs medical attention due to alcohol consumption. It is a wise amendment because it saves lives; the law encourages individuals to seek help, instead of trying to avoid criminal prosecution.

There are some common sense requirements for the immunity to be applicable. The caller must be the first caller to 911. So if there is a party, not every single minor will receive the benefits of the law, if each one calls separately. The caller must also stay on the scene and cooperate with law enforcement or medical emergency personnel.

A minor in possession charge is a misdemeanor with serious consequences. If you, or someone you know, is charged with MIP, contact an experienced criminal defense attorney for assistance.

Lessons from the Popular Podcast "Serial"

My wife and I finished the first season of the podcast "Serial." The popularity of the podcast does not surprise me. Not only was the presentation well done, but the integrity of the investigation was sound. For those who may not know what I am referring to, "Serial" is an expose into the 1999 murder of Hae Min Lee, a charming, brilliant high school student.

A jury in Baltimore convicted Adnan Syed, the former boyfriend, for the crime. "Serial" relied upon conversations with Adnan Syed to assist in its own investigation. Adnan was good-looking, friendly, and endearing to his peers so the conviction came as quite a shock to many people in the community. His conviction is currently being challenged via a petition for writ of habeas corpus.

The case, tragic in a myriad of ways, is a good example of what post-conviction relief looks like. First, let us discuss the evidence against Adnan. Then, we will discuss some potentially exculpatory evidence that is being used in his habeas case. Lastly, some final thoughts will be given.

The prosecution's case against Adnan was built upon the testimony of Adnan's friend Jay (not real name). Jay gave testimony that Adnan had planned Hai Min Lee's murder, told Jay about it, and then asked Jay to assist in the burying of the body after the murder. This testimony in conjunction with cell phone tower evidence (used much more today than at the time of the trial) was the crux of the prosecution's case. Jay's inconsistencies were many, but the cell phone tower evidence corroborated his story that he was in Leakin Park (a park near Baltimore) with Adnan on the night that Hae Min Lee went missing. Hae Min Lee's body was found in Leakin Park a few months later.

Despite Adnan hiring one of the most renowned criminal defense attorneys in Baltimore, Cristina Gutierrez, he lost at trial. One of the main arguments used Adnan's habeas petition was that Cristina Gutierrez provided ineffective assistance of counsel. Specifically, Adnan claimed that Cristina Gutierrez failed to contact an alibi witness who wrote a letter to Ms. Gutierrez stating that she had seen Adnan Syed in the library at the time the prosecution believed Hae Min Lee was murdered (he is also claiming that Cristina Gutierrez failed to seek a plea deal with the prosecution).

A judge has to decide whether Ms. Gutierrez's failures resulted in fundamental unfairness for Adnan, and whether a new trial is warranted.

Most habeas petitions include an argument of ineffective assistance of counsel (IAC). Given the Supreme Court's recent expansion of the law with respect to plea bargaining, it is a good argument to make. Attorneys are not perfect, and the law should not expect them to be. As such, relief should be given to those defendants who were not given a fair trial because their attorneys were inadequate.

Adnan Syed's case also involves DNA evidence. An innocent project clinic is moving to test evidence collected -- where Hae Min Lee's body was found -- that has never been tested before. It is the hope of Adnan that the DNA evidence will exculpate him for the murder of Hae Min Lee.

Like IAC, using DNA evidence to prove factual innocence is common in post-conviction relief. California has even taken steps to lower the standard at which evidence can be tested. Other states have implemented better DNA evidence protocol with respect to police investigations, i.e. they must keep the evidence a certain period of time, ensure its authenticity, etc.

No matter what, seeking post-conviction relief via a writ of habeas corpus is an uphill battle. Most, and I emphasize most, cases are dismissed with prejudice. The burden shifts immediately after a defendant is convicted, meaning that the People do not have to prove a case beyond a reasonable doubt. It is up to the petitioner to prove his innocence. It is very difficult to do; just ask Adnan Syed.

Preliminary Hearings in Felony Cases

A lot of our blog posts touch upon the subject of criminal procedure. The reason: defendants should be aware of what is going on in their case. Too often, defendants are ignorant of what they must accomplish to be cleared of the charges against them.  Knowing the different burdens of proof, obstacles, and objectives will only assist the attorney in his or her representation.

With that preface, let us discuss preliminary hearings, commonly referred to as "prelims." A felony case begins with a complaint being filed. A complaint lists out allegations, or criminal charges, against the defendant. Once the defendant is arraigned, where the court explains the charges against the defendant and asks the defendant to enter a plea of guilty or not guilty, a preliminary hearing is set within ten days, unless time is waived (a time waiver allows hearings to be scheduled further out).

A prelim is a probable cause hearing. A judge, or magistrate, hears evidence and then determines whether there is sufficient probable cause to find that the defendant  must "be held to answer." Held to answer is a legal term, which means that there is enough evidence for the defendant to stand trial for the charges itemized in the complaint.

The court may dismiss some charges (even all, at times), however, if he or she believes that there is insufficient probable cause. Probable cause is a lower burden to meet than proof beyond a reasonable doubt. Probable cause is met when there are facts that would lead a man of ordinary care and prudence to believe and hold a strong suspicion that the defendant is guilty of a crime.

It is not enough if the prosecutor can only prove some of the "elements" of the crime. All elements of the charged crime must meet the threshold of probable cause, or the charges must be dismissed.

At the defendant's preliminary hearing, an attorney may be present. Most constitutional rights that would apply at trial are also applicable at preliminary hearing. A defendant may cross examine prosecution witnesses. Evidence may also be presented by the defendant to negate an element of the charged crime. There is also a right to discovery, where the prosecution must disclose all exculpatory (helpful) evidence.

Strategically, an attorney may feel that a preliminary hearing is futile, but insist that one take place anyway. Why? He or she will get an opportunity to hear a preview of the prosecution's case against the defendant. It helps prepare the defense attorney for trial. Another reason: an attorney may want to impeach a witness at trial, when there is a likelihood that the witness will testify differently at preliminary hearing. Other times, an attorney may advise that the defendant waive his right to a preliminary hearing --like when there is plenty of evidence to find probable cause.

Defendants should always consult with a criminal defense attorney prior to the preliminary hearing. As stated above, there is a possibility that the case will be dismissed at preliminary hearing. But, more likely than not, if a defendant is not prepared or ready, he or she will "lose" at the preliminary hearing. Thus, a diligent defendant will seek out representation before he or she goes forward to prelim.

New 2016 Law Will Require a Database for Police Stops

In the wake of tragic police stories around the country, California took a step in transparency and accountability. Governor Brown has mandated that law enforcement agencies develop a program by 2018 that would allow them to collect and report data on the people they stop. Data will include perceived race and ethnicity, and the cause for the stop.

Similar to other actions taken, Governor Brown cited the phenomenon of "jail and prison populations [exploding]." He also discussed the byzantine California Penal Code, which "[covers] every conceivable form of human misbehavior." Since his day first day in office, he has been serious about criminal justice reform. He believes that this database will result in more justice and more fiscal savings.

Police are not allowed to stop individuals at whim. There must be probable cause for an investigatory stop. "Driving while black or brown" will not suffice. A reported stop that lacks probable cause will face scrutiny from law enforcement, attorneys, and judges. This is a step in the right direction. Far too often cases will be based off an illegal stop.

A separate 2016 law will require protocol to be established for the handling of body cameras worn by police officers. The law intends to ensure that recordings are not mishandled or damaged. Again, criminal litigation relies heavily on recorded evidence. A video may contradict a witness statement, or result in exculpatory evidence for the defendant.

Like stated in previous blog posts, California has a problem with over-incarceration but steps are being taken to address them. These laws will address issues that begin at the outset of a criminal case: the initial police stop and evidentiary support for an arrest. A person cannot be convicted, most of the time, if an arrest was unconstitutional.

If you, or someone that you care about, is arrested for a crime, it is important to seek the advice of experienced counsel. Laws are ever changing and complex. It is essential to consult with someone who may be familiar with new laws that could impact your case.

What is Discovery in a Criminal Case?

A defendant in a criminal case will naturally be afraid of what could happen to him or her. Misdemeanor and felony charges carry the potential for jail and prison time. In addition, defendants face the possibility of future scrutiny in their employment prospects and personal reputation.

The first two questions usually asked by a defendant are: "What did I do? What evidence does the prosecution have?" The process by which a defense attorney obtains the evidence is called "discovery." Discovery is the opportunity for the defendant to find out what kind of case the prosecution will present against the defendant.

During the pre-trial stage of a case, discovery is undertaken by both the defense attorney and prosecuting attorney. Both sides are required to discuss their case. There are not supposed to be surprises at trial. Legal dramas on television and movies are not representative of a majority of real cases.

Discovery is done informally, at first. Sometimes the Judge presiding over the case will have to be involved to handle disputes. Common disputes arise when a defense attorney has reason to believe that the prosecution has not handed over particular evidence. The prosecution must turn over certain evidence, such as:

• witness names and the content of their testimony
• "real evidence," or physical evidence
• evidence that is favorable to the defendant, i.e. "exculpatory"
• felony history of any witnesses for purposes of impeachment
• any "relevant" recorded or written statements

Sometimes attorneys disagree as to what is relevant. A judge will rule once a motion is made by one of the parties. Defense attorneys should be aggressive in pursuing disclosure.

Certain legal principles are supposed to protect a defendant as well. For example, "Brady" violations occur when a prosecutor intentionally withholds exculpatory evidence. Recently, the United States Chief Judge of the 9th Circuit Court of Appeals, Alex Kozinski, criticized California state judges for allowing prosecutorial misconduct. He said that there is an "epidemic of Brady violations..."

Regardless of misconduct or not, it is important for defendants to be aware of their rights. Discovery is important to a case. Sometimes it will lead to a defense verdict. Other times it can help facilitate a favorable plea deal. If you have been charged with a crime, it is important to consult with an attorney. Evidence and its impact on your case can be discussed.

DUI Checkpoints Are Legal

The other day an individual challenged his DUI in court without the representation of an attorney. In open court, in front of the other defendants and attorneys, he started to yell at the presiding judge. "They violated my constitutional rights!" The judge was annoyed but let the man finish. "A DUI checkpoint is unconstitutional! There was no probable cause to stop me!" After he was done, the judge responded: "This is an arraignment. All you need to do is enter a plea of guilty, no contest, or not guilty."

Besides the procedural mistake (one does not argue the merits of a case at an arraignment), the pro per defendant was wrong on the law. DUI checkpoints are not unconstitutional. To the contrary, both the United States and California Constitutions' allow DUI checkpoints.

The rationale behind "mobile" or "roadblock" DUI checkpoints lies in public safety. Due to the state's strong interest in preventing injury from DUI accidents, minor inconveniences are allowed. This does not mean that law enforcement can use checkpoints as an excuse to perform general or broad investigations. Police officers must follow strict guidelines when conducting a DUI checkpoint.

California has enacted legislation with respect to checkpoints. California Vehicle Code section 2814.2, subsection (a) states: "[a] driver of a motor vehicle shall stop and submit to a sobriety checkpoint inspection conducted by a law enforcement agency when signs and displays are posted requiring that stop."

Nevertheless, a California Supreme Court case in 1987 (Ingersoll v. Palmer), enumerated the guidelines that must be followed by officers executing a DUI checkpoint. They are as follows:

     a) Supervising officers must make all operational decisions;
     b) Criteria for stops must be neutral;
     c) Checkpoint must be reasonably located;
     d) Adequate safety measures must be taken;
     e) Good judgment must be used when determining the checkpoint's time and duration;
     f) There must be sufficient notice to drivers that the checkpoint is for official purposes;
     g) Drivers must only be stopped for a minimal amount of time; and
     h) Checkpoints should be publicly advertised in advance of execution.

If these guidelines are not followed, it is possible that a DUI charge, arising from a checkpoint, could be challenged. There are never guarantees, however.

A checkpoint also does not mean officers' can perform an extensive investigation without probable cause. A brief stop can lead to an investigation when there is evidence, sufficient probable cause, of intoxication --for example, when a person has alcohol on his breath, blurred eyes, or slurred speech.

In summary, on holiday weekends, like Labor Day Weekend, make sure that you avoid situations where you will have to drink and drive. Use a designated driver or taxi service if you drink. It is not only against the law, it is extremely dangerous. With that, have a good weekend!

Bench Warrants

A number of times prospective clients have called and asked questions about bench warrants. "Can an attorney go to court for me, without me being there?" "Will or can I be arrested?" "What did I do, which makes a warrant necessary?" These example questions, all legitimate, will be answered in this blog post.

"Warrants" have been around longer than the United States. The general definition of a warrant is a document issued by a legal or government official authorizing the police or some other body to make an arrest, search premises, or carry out some other action relating to the administration of justice. The Fourth Amendment of the Constitution requires that probable cause be present prior to the issuance of an unreasonable search and seizure warrant.

Warrants may not involve a search or seizure, however. Judicial officers can issue bench warrants for different reasons. Some of the most common reasons why a bench warrant is issued: (1) a defendant misses a mandatory court appearance; (2) a defendant faces a possible revocation of probation; and (3) a defendant fails to pay court ordered fines. 

Bench warrants do not require suspicion of a crime having been committed. Typically, bench warrants involve open cases. Judicial officers issue a bench warrant and it authorizes law enforcement to arrest and detain an individual so that the open matter can be disposed of. 

To clear a bench warrant, the defendant must appear before the court. In the rarest of cases, judicial officers allow an appearance without the defendant being present. Most of the time, defendants will need to be present. It depends on the particular case, and facts of that case. Some courts have different protocol, i.e. time limitations to appear (before 8:30 am at some courts). It may be necessary to consult with an attorney to answer questions specific to a particular set of facts.

Felonies, misdemeanors, and even traffic matters can result in the issuance of a bench warrant. In some cases, a driver's license hold is placed on the defendant too. Ignoring a bench warrant is extremely unwise and potentially dangerous to an effective defense. Far too many times, judges have scolded defendants for attempting to skirt the law. 

If you, a loved one, or friend has a bench warrant, it is best to get a taken care of right away. Seek the consultation of a criminal defense attorney; most offer free consultations.

The Effects of AB 16: Changes to Domestic Violence Charge PC 273.5

Last year, the California legislature amended Penal Code section 273.5, corporal injury on a spouse. The new changes expanded the definition of whom can be classified as a victim. Now included under the statute: former fiances and fiancees, current and former dating partners, mother or father of the defendant's child.

The changes have widened the scope of who can be accused of committing an act of domestic violence. The authors of the bill projected that it could increase convictions under the law by 10%. It is too early to tell, however, if there have been more criminal filings as a result of the change. Nevertheless, a domestic violence charge remains a serious crime.

Treating domestic violence differently than other violent crimes has been entrenched in California law since 1945. There is data, and tragic anecdotal stories, showing that victims of domestic violence can experience mental trauma for years, if not indefinitely unto death. Thus, there is a strong public interest in treating domestic violence crimes differently.

All people accused of committing a PC 273.5 act of domestic violence are not guilty. There have been cases of false accusations or self-defense.

To be convicted under the law, the People have to prove beyond a reasonable doubt that the defendant:
(1) willfully inflicted a physical injury on an intimate partner; and
(2) as a result, the act caused the victim to experience a traumatic condition.

We already discussed how the term "intimate partner" was expanded by AB 16. A "traumatic condition" is a visible injury. If both elements can be proven, an accused can face serious penalties.

PC 273.5 is a "wobbler," offense, meaning that it can be charged as a misdemeanor or felony. If a defendant is convicted of the misdemeanor, he or she faces a maximum of one-year (1) in jail, and a fine of $6,000. If a defendant is convicted of the felony, he or she faces a maximum four-year (4) prison sentence.

There also could be consequences related to a state license or a person's immigration status. One cannot forget that it also carries a social stigma. People accused of committing an act of domestic violence should consult with a criminal defense attorney. Changes in the law, possible defenses, and analysis of a particular case can be discussed.

Fighting a Drunk in Public Charge

Hollywood and other Los Angeles cities are home to numerous dance clubs and bars. With drinking establishments, there is always the risk of becoming intoxicated, and making bad decisions. Some choices could lead to legal trouble.

Most people are aware that it is unlawful, dangerous, and unwise to drive after a night out drinking. Some are unaware that it is a crime to be "drunk in public." Similar to a driving under the influence allegation, a drunk in public criminal charge could lead to a criminal record, jail time, and adverse employment consequences.

California Penal Code section 647 prohibits disorderly conduct. One aspect of disorderly conduct is being "drunk in public." Subsection (f) of Pen. Code section 647, prohibits being intoxicated in public to such an extent that you cannot care for the safety of yourself or others, or so drunk that you obstruct a street, sidewalk, or public way. Let's break down the elements:

(1) Intoxicated in a public place; and
(2) Cannot care for the safety of oneself or others, OR obstructing a street, sidewalk, or public way.

An arrest can occur if a drunk person is exhibiting behavior sufficient to meet element 2. One example: Danny the Drunk leaves the bar at 2:00 am, after having consumed ten shots of tequila. Danny the Drunk drank too much, and starts to have trouble walking. He can't go further than five feet, before he falls onto the street. Danny the Drunk is not hurt, but he blocks a group of nuns from walking by. Policeman Peter sees the whole thing and arrests Danny the Drunk for being "drunk in public."

Now, like every other criminal charge, there are ways to challenge a drunk in public allegation. A defendant could challenge the probable cause of the arrest. Like in my blog post about 1538 motions, a case can be dismissed if the arresting officer arrested the defendant without sufficient probable cause. Danny may be not be drunk at all; he could suffer from a medical condition that caused him to fall onto the street.

The prosecutor also has to prove both elements beyond a reasonable doubt. A defendant could challenge the "public" aspect of the crime. If a person was arrested while in a hotel, or store, both private businesses, he or she could argue that he or she was not in a public place.

Another way to challenge a drunk in public charge is if the defendant ingested an intoxicating drug involuntarily. For example, say Alan wants to play a prank on his friend Stu. Alan buys Stu a drink, but drops a Rufilin into the drink. Unbeknownst to Stu, while taking a drink, he is also taking an intoxicating drug. If Stu later cannot care for himself, in a public place, and was arrested, he would be able to successfully beat the "drunk in public" charge.

A lot of cases involve a person who was drunk, but not so drunk that he or she could not care for himself or herself. If you or someone you know is charged with a drunk in public criminal charge, it is wise to retain a criminal defense attorney. The potential penalties are too great.

Seeking Post-Conviction Relief

A mother leaves her seat in the courtroom and approaches the podium. The judge sits back and waits for her statement. As she is about to begin, tears drop from her eyes. “My son is innocent,” she says. “Please show him mercy.”

When a defendant is convicted and then sentenced, after a sentencing hearing, where family members may give statements, it is not the end of the case. Our judicial system provides a right to an appeal. The statutory right to an appeal also includes a right to appointed counsel, if the defendant cannot afford to retain one.

An appeal is limited to the “record.” The record is everything that happened before and after the trial – preliminary, trial, and sentencing hearings. Everything that is said by the prosecution, defense attorney, defendant, and witnesses are recorded. Materials submitted for evidence is also preserved for the record. Indeed, an individual unrelated to the case should be able to see “everything” that happened with a particular criminal case after it has concluded.

A defendant is referred to as the “appellant,” when he or she appeals. The first document submitted is the appellant’s opening brief. The opening brief is the opportunity for the appellant to make his or her arguments about why the conviction should be overturned.

Since arguments are limited to the record, the appellant cannot submit additional evidence nor have new witnesses testify. Put simply, the appellant can only raise legal issues related to the proceedings. Typically, appellants will argue that certain evidence should have been excluded during the trial. Or appellants may argue that there was a constitutional violation committed during the criminal proceedings – the trial judge made an erroneous ruling.

The opening brief will contain case law, statute, and argument. After it has been submitted, the state will have an opportunity to submit an opposition brief. The opposition brief will contain counter arguments about why the trial was fair, and why the conviction should stand. The appellant will get the last word, however. The appellant may file a reply brief.

If the appeal is denied, the appellant may petition for the California Supreme Court to review the court of appeal decision. Most often, the California Supreme Court will deny review unless the legal issues involve split decisions between the appellate courts, or the legal issue is novel and has not been heard before (which is rare).

An appellant, and his family, need not despair should the appellant lose his or her appeal. There exists post-conviction relief outside of an appeal. For centuries, a petition for writ of habeas corpus has existed. Writ of habeas corpus translates roughly to “why are you holding the body?”

A petition for writ of habeas corpus is a petition that allows a defendant to challenge his or her incarceration. Since it is not a direct appeal, new evidence is allowed. More often than not, new evidence will be submitted at the habeas level, like: DNA evidence, new witness statements or recants, and other exculpatory information. Habeas cases have been covered by the media. When an individual is exonerated because of DNA testing, for example, the proceedings are usually habeas related. A petition gives a chance to the defendant to right any wrongs that may have been done.

The same mother who cried now sits down in a more comfortable setting. Although her son is confined in a prison hundreds of miles away, she has some hope, even if small. An attorney approaches her and extends his hand. “How can we help you today?”

Our office welcomes your inquiries about post-conviction relief. Please remember that this blog contains no guarantees, assurances, or legal advice. If you have any questions, it is best to contact an attorney by phone. After a conviction , the burden shifts to the convicted.

'Constructive Possession' in Drug Possession Crimes

Both federal and state governments are changing the way drug crimes are prosecuted. Sentencing guidelines that require strict prison terms are being discarded for more court discretion. States are also implementing drug courts, or diversion programs, that allow defendants to enter into drug treatment programs in lieu of jail.  There seems to be an understanding that drug offenders need treatment rather than punishment.

Even with positive changes in California, with respect to drug crimes, because of Proposition 47, which mandated that certain crimes be prosecuted as misdemeanors instead of felonies, there are still situations in which an accused may be wrongfully charged. For example, an individual may not even know that illicit drugs were near or by him/her at the time of his/her arrest.

Health and Safety Code sections 11350, et al prohibits the possession of certain controlled substances. "Possession" is not limited to drugs on a person, like in his pockets, wallet, or belongings. Possession can also be "constructive" or "joint."

"Constructive" possession has been defined in a number of cases on appeal in California. People v. Showers (1968) 68 Cal.2d 639 defined constructive possession as follows:

"The accused has constructive possession when he maintains control or a right to control the contraband. Possession may be imputed when the contraband is found in a location which is immediately and exclusively accessible to the accused and subject to his dominion and control."

"The accused is also deemed to have the same possession as any person actually possessing the narcotic pursuant to his direction or permission where he retains the right to exercise dominion or control over the property. People v. Mardian (1975) 47 Cal.App.3d 1. However, merely being near a drug, or being in association with someone in possession of a drug, in of itself, was insufficient to establish possession under the law. Exercise or control of an area still requires proof beyond a reasonable doubt.

Let's give a hypothetical, when"constructive" possession may be in dispute. Roommate A is living with Roommate B to save money. Roommate A does not abuse drugs. Roommate A is a student with a steady job. Roommate B smokes methamphetamine, but does so privately. Roommate A is unaware of Roommate B's personal habits. The police, on a tip from an informant, execute a search warrant in Roommate A and Roommate B's shared room. Roommate B is on vacation. Roommate A is studying. The police find methamphetamine in Roommate B's drawer, which is near Roommate A's bed. The police arrest Roommate A.

In the hypothetical above, Roommate A may be able to get the case dismissed because he was not in possession of the methamphetamine, including "constructive possession." In spite of the fact that he was near the drawer, and could possibly open the drawer, under California law, Roommate A probably did not exercise dominion or control over the property in the drawer. He didn't have the requisite intent, nor did he exercise control of Roommate B's drawer.

Substance abuse is most often caused by disease and studies have shown that mental health services, not prison, is the best way to combat drug crimes. Nevertheless, there are good reasons to retain a criminal defense attorney if you, or someone you care about, has been charged with a drug crime. Experienced attorneys can see if alternatives to jail are available. Further, if there are facts of the case that suggest an accused may prevail at a preliminary hearing or P.C. 1538 hearing, a criminal defense attorney could aggressively advocate on your behalf. Our office welcomes your calls and questions. 

Utilizing a Penal Code section 1538, Motion to Suppress, in a DUI Case

Not all criminal cases go to trial. In fact, more often than not, a criminal case will be disposed of prior to a trial. Plea deals are common because they can be beneficial for both the defendant and the People.

But, there are also circumstances when a case can be dismissed prior to a trial. One common motion that can be brought during the pre-trial stages of a case is a Motion to Suppress. Penal Code section 1538 provides the right of an accused to challenge evidence that may have been obtained illegally. Typically if the evidence is suppressed -- like the blood results of a DUI stop -- the case must be dismissed because the evidence is dispositive to the case.

One example of when a Motion to Suppress could be successful is when an officer stops an accused for a traffic stop that was unlawful. An officer cannot stop an individual without sufficient probable cause, a legal standard provided by the Fourth Amendment. Thus, if an officer reports that he stopped an accused for violating the Vehicle Code, but there was no Vehicle Code violation, the accused may be able to prevail at a P.C. 1538 hearing.

A criminal defense attorney has the responsibility to perform an adequate investigation. Evidence obtained by an attorney could lead to a decision to file a Motion to Suppress. An investigation can include, but is not limited to: requesting discovery from the prosecution, subpoenaing documents, and looking at possible video surveillance. It is now common for officers to have dashboard cameras, and also cameras on their persons. A video could show that a traffic stop was unlawful.

Some of my clients have asked what a motion consists of. A motion is a request for the court to do something. The party "moves" the court to make an order. A motion is started (usually) by an opening brief. The attorney files a memorandum with points and authorities (cases in support of the motion). Then, the prosecution (again, usually) files an opposition brief, highlighting their position against the motion. This allows the court to familiarize itself with the law and facts of the particular case. After the briefing with physical documents, there is an evidentiary hearing where witnesses testify. The arresting officer most likely will testify as to the facts of the stop or arrest.

A Motion to Suppress is a constitutional protection. It safeguards citizens from police abuses. There are other type of situations, as well, when a P.C. section 1538 may be appropriate. Law enforcement cannot exercise a warrant based on false information. Police cannot execute a warrant outside the constraints of the warrant. Facts should be scrutinized in every criminal case.

In conclusion, a defendant may not need to persuade a jury. There are pre-trial motions that can be potentially made, which could lead to a complete dismissal. It is important to contact an attorney should you be charged with a crime. We welcome your calls and questions. 

Civil Compromise in a Theft Case

Allegations of theft usually take place at large retail stores like Target, Sears, and Walmart. These establishments have their own security protocols in place, including but not limited to: guards, cameras, detectors, and other devices. These steps prevent merchandise from being taken unlawfully.

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.

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
• Second-Degree Murder
• The Felony Murder Rule

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.

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.