Orange County Criminal Defense Lawyer Blog

Lawyers must continue their formal legal training no matter how long they have been practicing law. The California State Bar Association requires lawyers to attend Continuing Legal Education (CLE) classes and monitors or audits lawyers' records to ensure they have attended the necessary number of hours. This is true even for lawyers, like me, who teach other lawyers about how to defend driving under the influence cases.

CLE is important for two reasons. First, lawyers have to keep up on changes in the law and there isn't any better way than to attend classes taught by experts in their field. Second, CLE is a great way to continue to be energized about the practice of law. It's exciting to attend a conference and talk to other lawyers about how they are defending their cases. Attending the conference and listening to other defense lawyers is one thing but discussing your particularly difficult cases with other defense attorneys in a consultation is really exciting. It's like having a law firm of the best of the best working together to put a winning strategy in action.

I recently attended the Capital Case Defense Seminar. Nearly 1000 other criminal defense lawyers were brought together to learn, discuss, and work towards eliminating the death penalty in California. During the conference Barry Scheck gave a very informative talk on Forensic Evidence. Of course, Barry Scheck has worked tirelessly through The Innocence Project to free many wrongfully convicted innocent defendants. Finding out how he helped to free an innocent man after 26 years of imprisonment in Texas was inspiring. Listening to him speak makes me want to be a better lawyer.

I left the seminar a better, more informed lawyer, but more importantly I felt rejuvenated in my profession. I am even more determined to uphold the highest standards of our profession and our mission to protect our clients from the government. It reinforced my pride in being a criminal defense lawyer and a Certified Specialist in Criminal Law.

The United States Supreme Court on January 11, 2012, rendered a decision in Perry v. New Hampshire, that limits the ability of the defense to successfully attack a suggestive or unreliable identification of the defendant by an eyewitness. Eyewitness identification has long been the subject of commentary and even experiments. Many of us have seen the video of or even participated in a situation where a professor has a classroom full of students when a subject rushes in steals the professor's purse and the class is asked to describe the suspect. It's incredible how varied the descriptions of the suspect are. Different facial features, races, clothing, height and weight and numerous other identifiers have been listed by witnesses seeing the same thing. How many times have you been in line at a theater, seen someone you think you recognize and been mistaken? It's happened to all of us.

Stress of an unexpected, even scary, situation can affect one's perception and ability to accurately identify suspects or describe events. On a personal note, I witnessed a car crash right in front of my eyes. I stopped, waited for the police, submitted to an interview, and was told that my account was completely "wrong". Physical evidence and other eyewitnesses made it quite obvious that what I thought I had seen was just plain in error. I didn't mean to mess it up or make a mistake, it just happens because when events occur quickly under unexpected conditions what we think we see isn't always what actually happened.

Now, when a police officer investigates a crime and gets a description of the suspect from the victim he can just take the information or by his questions and technique he can influence the identification. For example, when a photograph of a suspect is shown to a victim several similar looking photos are used in a "six pack". The eyewitness is asked to view the subjects, admonished it's just as important to exonerate the innocent as to find the guilty person and just because a picture is in the "six pack" it doesn't mean the perpetrator's photo is contained in it. When that doesn't happen and a singular photo is shown to a witness and no positive identification is made, what do you expect would happen if that same singular photo is placed in a subsequent "six pack" ? Isn't that overly suggestive? Isn't that type of police technique almost ensuring the identification of the photo of the singular photo individual? Of course it is. Once suggestive procedures like this one are used, the ultimate identification of the suspect (now defendant) taints the whole process. Now you will never know if the identification is the product of what the eyewitness saw or the suggestive procedure used by the police.

In spite of the above, the Supreme Court has decided in Perry v. New Hampshire that the "reliability of relevant testimony typically falls within the province of the jury to determine". In plain terms, unfairness, unreliability, and suggestiveness as well as due process challenges to the identification procedure are now points to be argued to the jury. Don't look to the judge for help. Look to the best criminal defense trial lawyer you can find because that is where the case and the identification will be decided.

Recently, a video was seen on television showing a Los Angeles Sheriff's Deputy questioning a woman on a train. The woman was facing two deputies. One was a woman and one a man. Both deputies were in uniform and both were substantially larger than the woman they were contacting. During the conversation another passenger began to video the incident. After the woman appeared to be non-responsive, or at least not responding as the deputies would like, the male deputy suddenly elbowed her in the face with a violent and vicious forearm. Upon seeing the passenger videotaping the incident the deputy tried to seize the cell phone. The citizen refused to turn over his cell phone to the deputy fearing the video would be erased or tampered with and the true nature of the incident lost forever.

First of all, a citizen does not have to relinquish his or her video equipment to law enforcement just because they demand it. It is your personal property and without further justification, for example a search warrant, unless the citizen voluntarily surrenders it, your personal property is just that, yours. In this case, I have no doubt that if the deputy had taken possession of the citizen's camera that video would have been destroyed.

Secondly, in defending people charged with crimes I have learned that the truth of exactly what happened isn't always reflected accurately in the police reports. Now that video has become so easy and so available to anyone with a cell phone, many times the incidents between citizens and law enforcement are captured on video. One can argue that the video doesn't capture the whole incident or that it somehow misrepresents what happened or what occurred before the camera was turned on, but one cannot deny the truth that cameras help criminal defendants more than they hurt. I would much rather have a video of the encounter between the police and my client. With video cameras the jury and anyone else can see what really happened and no amount of spin in the police reports will disguise the truth.

On January 23, 2012, the United States Supreme Court issued it's decision in United States v. Jones. The Jones decision is noteworthy because it requires law enforcement to obtain a warrant when using a GPS device. A look at the facts in Jones is necessary to understand the Court's reasoning.

The Government obtained a search warrant which allowed it to install a GPS tracking device on a car registered to Jones' wife. The warrant authorized the GPS to be installed within 10 days of the issuance of the search warrant. The agents waited until the 11th day to install the device (after the expiration of the warrant). Then the Government tracked the vehicle's movements for 28 days.

As a result of the tracking of the vehicle an indictment was issued charging Jones with drug trafficking and conspiracy. The trial court issued a split decision when Jones moved to suppress the evidence obtained by use of the GPS device, stating when the vehicle was parked at Jones' house it was an illegal search but when it was on the public streets there wasn't any expectation of privacy and therefore no illegal search. Jones was convicted and appealed.

At oral argument the Supreme Court members voiced concern that even they could be placed under surveillance at the whim of the Government without the benefit of a search warrant. In other words, the buffer between an invasion of privacy by the Government was becoming so intrusive without a court officer's watchful eye anyone's privacy could be invaded at any time. In its decision the Court held the Fourth Amendment to the United States Constitution protects "persons, houses, papers, and effects, against unreasonable searches and seizures". The Governments' physical intrusion on an "effect" (car) for the purpose of obtaining information equals a search within the meaning of the Fourth Amendment. The Court did not address the Government's contention that Jones did not have a "reasonable expectation of privacy" because the Court focused on the Government trespass on the area where the GPS device was placed.

Significantly, the Court did not overrule the recent line of cases which sanctioned monitoring by other forms of electronic devices such as beepers without a search warrant. In addition, while the decision was unanimous not all the justices joined in the rationale for the decision. In essence, the Supreme Court didn't want to allow such GPS devices to be placed on vehicles without a search warrant but had varied reasons why it was a violation of the Fourth Amendment. Because of this lack of unanimity of reason, the decision may not have the far reaching effect that some think it does.

How many criminal cases are in the courthouse that don't belong there? Plenty, that's clear from a recent case in the Los Angeles County Court. A homeowner gets cited for his dog running loose. The citation is for a misdemeanor because the County Ordinance carries the possibility of six months in jail for each violation. If a criminal defendant is subject to a jail sentence then certain rights apply.

The United States Constitution guarantees due process, right to a jury trial, confrontation of one's accuser by the defendant, and the right to remain silent, among other rights. All these rights apply in California when a defendant is facing jail time for a violation of law.

But, surely, the dog owner isn't facing real jail time for letting his dog run loose....is he? If the law that is violated is a misdemeanor, then all the above rights apply no matter how absurd the possibility of jail time is. Therefore, if the dog owner wants a Public Defender, at tax payer expense, and he is indigent, he is going to get the Public Defender. The Public Defender is an attorney, with clerical staff, office costs, investigators, and with an overwhelming case load of needy clients. Yet, no matter, the dog owner gets a lawyer at government expense.

Or if the dog owner is a responsible, non-indigent taxpayer, then he has to pay for his own lawyer, his own investigator, and his own expenses. But, surely common sense will prevail and the judge will see that his calendar is full of cases that really demand his time and energy to a larger extent than this dog running loose case. Not so. The system marches on. It doesn't look right or left just keeps plowing forward wasting thousands of dollars prosecuting the miscreant dog owner. The prosecutor, yes, there is a real Deputy District Attorney who is prosecuting this case, doesn't see what a waste of precious resources this is. Neither the judge nor the prosecutor reduce this case to an infraction thereby eliminating the possible jury trial, appointment of the Public Defender, and the waste of countless thousands of dollars. Much like the dog, this case is running wild with taxpayer money. And the court system says it's running low on funds and needs more money fed into it from the precious few taxpayer dollars available. Is anyone listening? Common sense is screaming but apparently only a few of us care.

Getting assigned to vice as a police officer is tough assignment. Often times the required duties take the officer into dangerous situations. Quick thinking is often a necessity. Tension can build to the breaking point. How to relieve all that tension? The vice cop has found the answer. He gets a massage.

Massage parlors are apparently a hot bed (pun intended) of prostitution activity. Many massage salons are being raided by undercover police officers. Of course, they're only under cover for a short period of time. But, while being uncovered, I mean undercover, they get their muscles kneaded, their backs oiled, their limbs stroked, hot towels applied, and tired sore bodies cared for from head to toe, all by young women who tend to their needs as though they were real paying customers without a law enforcement agenda. The tax payer dollars paid to find prostitution occurring behind closed doors and under warm towels is truly money well spent. Or is it?

Vice squads are combing the massage salons looking for young women who would offer sexual services in return for money. Negotiations for these services have to be realistic in order to arrest the offending party. In order to enforce the realism, undercover officers of the vice squad must frequent various massage salons and put their bodies through torturous episodes as described above. Once sufficient stroking has occurred, how long and how much is subject to ones' individual ability to withstand the torture, the "bust signal" can be given. One has to hope that the "gotcha" moment doesn't come too soon and the bust has to be aborted due to circumstances beyond the undercover officer's control. In that case, one would assume, the bust does not occur and the tax payer money spent on the massage wasn't wasted because, well, the officer did get a good massage.

Many vice officers have to repeatedly go into a suspected illicit massage salon before making a bust for prostitution. Why? Because the erstwhile prostitutes are on to the scheme and won't agree to an act of prostitution unless the vice cop is a known customer. So of course, the vice cop(s) have to spend lots of taxpayer money in order to put a stop to this conduct. All the while, the tension of their day is dispelled by the tireless work of the masseuse. In the pursuit of a happy end to this episode it's the taxpayer who pays the bill. But, at some point, if the taxpayers only knew where their money was going don't you think the happy end to this story would be to tell the cops to go catch real criminals with our precious tax money?

Recently, in Texas, a man was freed after serving 25 years in prison for a crime he didn't commit. The Innocence Project was successful in overturning the conviction of Michael Morton when a piece of evidence in his case was re-tested and found not to contain the DNA of Morton but of another man. One of the most interesting aspects of this case isn't that DNA exonerated Morton, but that other evidence that was in the DA's possession at the time of the trial was withheld from the defense. This evidence was exculpatory, or in other words, tended to help prove Morton's innocence.

It was only after trial when one of the prosecutors was overheard telling a juror that Morton's file was several inches thick , that the defense had any inkling of the existence of other evidence. In fact, the victim's credit card was used by a suspect days after the murder during a time period that Morton could not have been involved in any use of the victim's credit card. Furthermore, a witness told the prosecution that a suspicious man had been seen near the victim's home seemingly casing the residence days before the break in and murder in the home. None of this was disclosed to the defense prior to trial.

The importance of the evidence is clear to anyone with an ounce of common sense. If the thief/murderer took the victim's property and used the stolen credit card and it wasn't Morton, then maybe Morton wasn't the killer. If a man, not Morton, was seen acting suspiciously in the area of the murder than perhaps he was the killer and not Morton.

The law in this area is clear. The United States Supreme Court in Brady v. Maryland established in 1963 that the prosecution had to voluntarily turn over all evidence to the defendant which could, not would, but could, seemingly tend to exonerate the defendant. The problem comes when the prosecutor doesn't fulfill his obligation to turn the required evidence over to the defense. When this violation occurs the defense usually doesn't even know it happened. The suppression of exonerating evidence violates the public trust in the fundamental fairness of the criminal justice system. If there isn't trust, there isn't confidence that justice will be done. At that point, the people will not submit to the judiciary. Vigilante justice and chaos can become the norm and not the exception.

Every defense attorney must be aware of the possible misuse of the public trust by the prosecution and take steps to make sure their client doesn't become the next Michael Morton. A formal discovery motion compelling disclosure of all possible evidence will force the prosecutor to tell the judge in open court that he has given all possible evidence to the defense. If the prosecutor is prepared to boldly lie to the judge then, truly, the system is forever tarnished. Few prosecutors have the meanness of spirit and willingness to state openly a falsehood which could be discovered at a later time. Even so, the defense must make sure the system is working and prevent the wrongful conviction of their clients.

As almost everyone on planet earth knows, Dr. Conrad Murray was convicted of Involuntary Manslaughter in the death of Michael Jackson. On November 29, 2011, Dr. Murray was sentenced to the maximum term of four years in State Prison. How did the judge determine that four years was the appropriate sentence?

The cynical among us might just say that because the deceased was the most famous pop star in the world that the judge would have been crazy to give Dr. Murray anything less than the maximum. Those of that opinion could easily conclude the public expected the maximum and therefore why would the judge do something that would enrage the public and possibly cost him his job in the next election? Those cynical enough to believe that would think the discussion would end right there. But, what did the judge have to do under the law in order to justify the maximum sentence? The answer can be found in the Rules of Court.

The Rules of Court set forth the criteria affecting probation (Rule 4.414). Dr. Murray was technically eligible for probation, no matter how unlikely that might have been as a practical matter. There are two sub-sets to consider: facts that relate to the crime and facts that relate to the defendant.

Factors relating to the crime include, but are not limited to: the nature, seriousness, and circumstances of the crime...., and; whether the defendant was armed or not, and; the vulnerability of the victim, and; whether the defendant inflicted physical or emotional injury, and; the degree of monetary loss..., and; whether the crime was committed because of an unusual circumstance, and; whether the defendant was an active participant, and; whether there was great provocation making unlikely the crime would re-occur, and; whether the crime was sophisticated or professional on the part of the defendant, and; whether the defendant took advantage of a position of trust or confidence to commit the crime.

Facts that relate to the defendant are also important for the judge to consider. These include: prior criminal conduct, prior performance on probation, willingness to comply with the terms of probation, ability to comply with reasonable probation terms, the likely effect of imprisonment on the defendant's dependents, the adverse collateral consequences on the defendant's life from the felony conviction, remorsefulness of the defendant, and the likelihood of danger to others if defendant is not imprisoned.

If the judge determines he wants to imprison the defendant he has to select the proper term from the range set forth in the crime itself. In this case it was either two, three, or four years. The court selected the upper, or maximum, term. This is based on any relevant factor including circumstances in mitigation or aggravation. The judge can look to the case record, the probation officer's report, other reports or statements, and evidence introduced at the sentencing hearing. (Rule 4.420) In effect, the judge could do anything he wanted due to his ability to look at all "relevant" evidence. This is where the judge's personality, personal and professional background, and own opinion on the state of the evidence weigh heavily on his decision.

As one can see from the above, the four year maximum term was almost a foregone conclusion. The sentencing hearing had to go forward but one could pick out many factors that can be found in the Rules of Court which foretold which way the judge was going to go. No one should have been surprised that Dr. Murray got the maximum. With public sentiment and Dr. Murray's own lack of remorse why should the judge have given him a break? The answer is clear; there wasn't any reason to and he got what he must have expected.

Dr. Murray killed Michael Jackson. No doubt about it since the jury found him guilty of involuntary manslaughter. He got sentenced to the maximum term of four years. Dr. Murray won his case when he got convicted. How can I say that when he went through a hard fought trial that lasted weeks and cost him and the taxpayers millions of dollars? According to the evidence, he lied to the paramedics, failed to call 911 in a timely fashion, treated his patient with an extremely dangerous drug under circumstances that failed to meet the most minimum of medical standards among a host of other omissions and commissions. So involuntary manslaughter was the charge and guilty was the verdict. Who says the Los Angeles County District Attorney's Office can't win the big ones? Who says that the District Attorney's Office loses one high profile case after another? They got their man here didn't they? Well, yes and no as far as I'm concerned.

Yes, the LADA got a conviction as charged. But, why only charge Dr. Murray with Involuntary Manslaughter? Why not seek a Second Degree Murder conviction? Why not charge both Murder and Involuntary Manslaughter? Based on the facts as presented by the prosecution, the jury could very easily have found Dr. Murray guilty of Second Degree Murder. Why? The real question is why not?

To find a defendant guilty of second degree murder you must look to CalCrim Section 520 which sets out the elements of Second Degree Murder. To prove this is the real crime Dr. Murray is guilty of the DA needed to prove the following: The defendant committed the act that caused the death of Michael Jackson and when he acted he had a state of mind of malice aforethought. The relevant malice element here is implied. Did Murray's actions consist of the following: 1. Did he intentionally commit an act, and; 2. The natural and probable consequences of the act were dangerous to human life, and; 3. At the time he acted, he knew his act was dangerous to human life, and; 4. He deliberately acted with conscious disregard for human life. Ask yourself, from the facts of this case, wasn't this the proper charge?

As a final thought, even if the DA had fallen short on one of the above elements for murder, would he have "lost" the case? The answer is absolutely not. Why? Because Involuntary Manslaughter is a lesser and included offense of Second Degree Murder. Therefore, if the DA had charged both Involuntary Manslaughter and Murder the jury could have considered both crimes in deliberations. Dr. Murray wouldn't walk free under any circumstance if both were charged. But, he didn't have to risk the possibility of a murder conviction and thus life in prison because the DA never charged him with anything more than Involuntary Manslaughter. When the charges came out from the DA, Dr. Murray had to be smiling because he won before the first witness was ever called.

Post Traumatic Stress Disorder (PTSD) or Traumatic Brain Injury (TBI) is a real problem in our veterans returning from combat deployments. Many times the conditions are not diagnosed until the veteran becomes a defendant in the criminal justice system. How the criminal justice system deals with these defendants is a great challenge in the future.

The Veteran's Court has been instituted in some courts in California in an effort to acknowledge the veteran's service and deal with it in an organized, comprehensive fashion complete with Veteran's Administration participation. Yet, what happens to the veteran who doesn't qualify for Veteran's Court? While Veteran's Court is a great alternative when available, in some jurisdictions, Veteran's Court doesn't even exist. Now Veteran's Court funding, as all the system's funding, is at risk.

The prosecutor who is willing to consider the defendant's service in a meaningful way has many options at his disposal, short of entry into Veteran's Court. A criminal defense attorney needs to present a creative alternative to a conviction or a jail sentence to the prosecutor. For example, a criminal case could be delayed with the requirement that the defendant attend counseling, job training, and medical evaluation. Community service is an option that could be added to any delay or continuance of the proceedings. The goal of the delay would be to show the prosecutor that the defendant deserves a second chance. The defendant must be willing to meet his obligation to overcome the issues that brought him to the criminal justice system's attention. If drugs or alcohol are the cause of criminal conduct, the defendant has to meet the challenges that addiction brings. In-house residential treatment instead of jail time should be considered as an option. Out-patient follow up with vocational training showing the prosecutor that this defendant is not likely to re-offend is a must.

The prosecutor must be convinced that society will be protected and better served, not by just punishment, but by trying to make the defendant whole again. Continuances to show acceptance of responsibility, treatment to establish a drug free life, alternative sentencing if conviction is mandated are a few solutions available to the defense attorney. Every manner of alternative thinking must be on the table in the representation of the defendant who is a veteran. In order to do that, the defense attorney must be specially aware of the unique problems and solutions available to our military.

Veteran's Day is celebrated once every year by the country. Yet the sacrifice by our veterans is not always so easily recognized any day in the current criminal court system.

Often times I represent men and women who have served our country both in actual combat and in supporting roles. These individuals find themselves traumatized by their service experience to the United States of America. When they come home, all too often there are difficulties coping with day to day life. Sometimes hurdles seem too high to overcome. Depression can set in. Self-medication with drugs and alcohol can become an unhealthy and illegal fix to problems that seem overwhelming.

Once the veteran turns to drugs and alcohol he encounters the criminal justice system. When that happens, what role should the veteran's military service play in the disposition of the case? I think that the veteran deserves every consideration possible under the law. The prosecutor should evaluate the case understanding that the veteran's (defendant's) service has helped protect the very system he now finds himself in.

Too often the prosecutor has the attitude that this veteran (defendant) isn't any different than anyone else. The common mantra of the prosecutor is, "Everyone should be treated the same no matter what their personal story or background is. Justice is blind".

To that, I respond, justice has to open it's eyes to who people are, what caused them to come into contact with law enforcement, and if they are veterans to appreciate the trauma they have suffered in the defense of our country. True justice cannot afford to be blind. The veteran deserves to have his service recognized as a cause of his criminal conduct and every effort needs to be made to recognize this in fashioning a resolution of the criminal case. Rehabilitation and not punishment must be the goal. To do anything else is just criminal.

Recently a man was convicted in Orange County California of murder. Essentially this Defendant was initially attacked by a group of gang members who chased him and threw beer bottles at him. In response the Defendant attacked the group who had initially assaulted him with a gun. He shot at the deceased and after wounding him, shot him again several times killing him. The issue for the jury became how far can one go in defending himself against an attack?

Self-defense is a right available to anyone in California. However, there are a few limitations. Usually, you can't claim self-defense if you're the one to start the fight. But, what if you don't start the fight? In fact, what if you are simply attacked, but the person attacking you chose the wrong person to attack because it just so happens you have a gun. Can you shoot the attacker? The answer is probably not.

If attacked you don't have to retreat. However, you have to use proportionate force to the assault being perpetrated on you. In other words you can only use the amount of force to defend yourself, that was used against you in the first place. If someone hits you with his fist you generally don't have the right to use a gun in response. But, each case turns on its own facts. For example, if your attacker is much larger than you and you have a reasonable fear he is going to beat you to death or beat you until you are seriously injured you may very well be able to use deadly force to stop the attack.

In the case mentioned above, the defendant was a gang member. This may have played a role in the jury's view of the situation. He also had a previous record of assault on a police officer. Make no mistake, depending on who you are and who represents you the end result may be very different. If a defendant doesn't have a prior record, isn't a gang member, and is one who the jury can identify with, the jury is much more likely to give that defendant the benefit of the doubt. It is the attorney's job to make the facts come alive so that the jury feels the fear and understands the defendant did only what anyone would do to defend himself. That's the challenge and the art of criminal defense.

Petty theft, or a violation of Penal Code Section 484-488, is when someone steals an item or items of value when that item(s) doesn't have a large dollar value. It used to be that if what was stolen was worth less than $400.00 is was clearly a misdemeanor violation, commonly called petty theft. If the value was more than $400.00 it became a violation of Penal Code 487 and a possible felony.

Recently, perhaps as a sign of inflation or a recognition that everyday items just cost more, the law has changed to increase threshold of felony grand theft to $950.00. If whatever is stolen is worth less than $950.00 than the charge will be a misdemeanor petty theft.

A common occurrence is when someone steals from a store, such as Nordstrom's Department Store, the value can quickly exceed the $950.00 grand theft value. The District Attorney has the choice to file this case as a felony or a misdemeanor. Even though it could be a felony, it doesn't have to be. The District Attorney, or whoever is the prosecutor, has the discretion to file a felony or a misdemeanor.

Why wouldn't the prosecutor file the most serious charge possible? The fact is, the prosecutor is required to "do justice" not just prosecute to the maximum degree allowed under the law. So when a theft is committed the prosecutor should look to several factors. These would include: Does the person have a prior record, and; what was the value of the items taken, and; who was the victim, and; was there any evidence that this was premeditated or thought out before the theft. These factors are not exhaustive nor are they exclusive.

The criminal defense lawyer must show the prosecutor the factors in mitigation of the theft. Good people do unwise or ill thought out actions. Sometimes it's just an impulse. Sometimes it's a result of an effort at self destruction. The challenge is to prove to the prosecutor that no matter what happened there is a good person who deserves some level of consideration by the system and not just "throw the book at them".

Residential burglary occurs when someone enters the residence of another with the intent to steal or commit a felony inside the home. The "normal" burglary is one where the burglar enters the home by forcing some kind of entry. Entry into the home through a window or forcing a door open are both entries which establish, almost by common sense, the intent to commit a theft or some kind of a felony inside the house. These are "serious" crimes and are punishable under the "Three Strikes Law" as such. But, what happens when someone is home when the burglary happens?

Recently, a case came up where entry was made through a bedroom window. Once inside the burglar was in the process of stealing silverware from the kitchen when he decided maybe there were more valuable items to be found in the bedroom. When the burglar went into the bedroom he was shocked to find that a woman was in bed sleeping. He immediately left the home and was so shocked he didn't even take the stolen loot with him. Does the fact that he didn't know anyone was home make a difference? Add the fact that he left immediately and didn't take anything with him and maybe the burglary didn't even occur. Well, unfortunately for the burglar, the fact that he didn't know someone was home and that he didn't get any stolen property doesn't make any difference at all.

The crime of burglary is established as soon as the burglar enters the home with the intent to steal. Even if he just walked in the front door, if he entered with the intent to steal, it's a burglary. The big problem for the burglar who enters when someone is home, is that by definition it is a "violent" crime under the "Three Strikes Law". When it comes to sentencing, the burglar must, except in unusual circumstances, go to State Prison. In addition, if he does go to State Prison he must serve 85% of whatever sentence he receives.

The public policy behind theses increased penalties is that when someone is home, the danger factor increases so much that even if no one is hurt, or the homeowner doesn't even know the burglary happened, it is so dangerous that increased punishment is mandatory.

Recently I had the opportunity to teach a class to other attorneys. All attorneys are required to attend and complete mandatory continuing education classes on various issues in the law. One of those classes offered was "How To Defend A First Time DUI". Since I am a Certified Specialist in Criminal I was asked to teach this six hour class.

The questions I had to ask myself started with, what would I want to know if I had to defend someone who is charged with a DUI and I had no experience in defending against such a charge? That answer is, I would want to start at the beginning of the case and go through to the end of a trial so I would know what to tell the client to expect. I had to remember that the knowledge I take for granted isn't necessarily shared by the lawyers in the class because they don't have the experience I have.

The class focused on how to start the process of defending someone against a DUI. The request for a DMV hearing has to be made within ten days of the arrest. An appearance has to be made at the arraignment. A decision has to be made on issues such as, can I get a better deal in the arraignment court than I can if I enter a not guilty and discuss the case with the DA later? The lawyer has to do his or her homework to know the judge who is sitting in the arraignment court so as to know if settling the case earlier rather than later is better for the client. Is it a case that should go to trial? The lawyer has to know his court, the DA, and his facts. If he goes to trial and loses will his client be punished more harshly than if he had settled before trial? What's a good settlement?

The hardest issue for the lawyer teaching other lawyers is to make the class interesting and informative. Maybe that's the challenge for every teacher. But, lawyers being who they are, become a critical crowd and one that already feels they know what they are doing, even when they don't. However, I guess the crowd of lawyers liked the "inside" knowledge and tips I gave them because they asked me back.