Orange County Criminal Defense Lawyer Blog

The basic rule of entrapment (California Penal Code 647a) is that to qualify as a defense, the police have to actually plant the idea of the crime in your head. They must do this by engaging in some type of enticement. One of the ways this is done is to make the reward so lucrative the police essentially overcome your free will. This can also be accomplished if the defendant is in an especially vulnerable position. Entrapment can be a complete defense to charges of wrongdoing.

This will be easier to understand by looking at an example. In the early 1980's, James DeLorean, the man who invented the DeLorean car was in danger of losing his automobile company because he was in deep financial trouble. The FBI and Drug Enforcement officials devised a sting operation in which informants and undercover FBI agents came to DeLorean and wanted him to sell 55 pounds of cocaine. DeLorean had no prior record and no history of drug sales.

Lawyers for DeLorean argued that he was in an especially vulnerable position in that his company was on the brink of disaster. In addition, they argued, the agents offered an amount of money that was so huge that no reasonable person would be able to turn it down. DeLorean, they argued, never had any intention of selling drugs until the FBI agents planted the idea in his head. A jury agreed with the defense and acquitted DeLorean of the charges. This was reported in Time Magazine.

Because the laws of entrapment can be especially tricky, it is more important than ever to seek the help of a criminal law specialist if you are planning on using this as a defense.

Mrs. Jones calls the police and says Mr. Jones hit her. The police come and arrest him for domestic violence. Later Mrs. Jones changes her mind and says it didn't happen and she won't testify. What will happen?

The prosecutor can still proceed with his case against Mr. Jones by subpoenaing Mrs. Jones to court and forcing her to take the stand. Assuming she was telling the truth originally, she doesn't have a privilege not to testify against her husband. If she refuses to testify, the District Attorney would seek to introduce her previous statements against the defendant. If Mrs. Jones said it didn't happen, the DA could use the statements as prior inconsistent statements to convict Mr. Jones. Mrs. Jones could potentially face a perjury charge (lying under oath), however that is virtually never done. If Mrs. Jones refuses to testify at all and the judge finds she has no legal excuse for not testifying, she could be held in contempt of court and fined or jailed. Again, this almost never happens.

If Mrs. Jones wants to say the violence never happened but is afraid of perjury, she should consult a criminal defense attorney so he can say she as a legitimate reason for refusing to testify (self incrimination). If the prosecutor wants to proceed he would have to get a superior court judge to grant Mrs. Jones immunity.

Often people think that if they make a criminal charge against someone, and then change their mind, they can stop the process. That, however, is not usually the case. Once the police get involved the case takes on a life of its own and the outcome now is up to the police and the prosecutor. If Mrs. Jones says she wants to drop the charges in this domestic violence charge and doesn't want to testify, the prosecutor can choose to do just that or he can choose to go forward anyway with his case against Mr. Jones. The case will not necessarily be dropped just because Mrs. Jones no longer wants to go forward.

Can looking at pornography in your own home on your computer lead to criminal charges? Like most aspects of law the answer is not so simple, but the short answer is YES. However, looking at adult pornography in your own home is not what can get you into trouble. It is child pornography that is illegal.

There are two aspects of so called cyber porn that involve children. One is the issue of children or minors looking at porn on the internet. Many courts have ruled that software is available to protect minors from inadvertently viewing pornography online. Adult pornography, whether on the internet or elsewhere is considered a protected part of free speech and therefore cannot be prohibited. Groups have tried to prevent internet porn on the basis that children could easily be subjected to porn on the internet but consistently courts have considered protective software preferable to an abridgment to the first amendment right to free speech.

The second issue is that of the actual depiction of children in pornography. Courts have ruled that child pornography is not protected by the first amendment and is therefore subject to criminal penalties. It can be a crime to knowingly posses, sell, receive, send or transmit child pornography through the internet.

Here is where the problem can come in. Looking at adult porn online is not illegal but it can lead inadvertently to child pornography. It can be sent to you even if you do not ask for it and don't want it. It can be part of a web site you are visiting and you may not even know it is there. If you download it, even unknowingly, it is now on your computer. True, it is not a crime unless you knowingly possess it, but it will be very hard to prove that if it's on your computer, you didn't know it was there or want it. The internet can be a very tricky place to navigate. Often, one site leads to another and without even intending it, you can be looking at sites that are completely illegal.

When you get arrested or you bail out you are given a date to appear in court. When you are given a citation you are given a specific date to appear in court. The police are supposed to submit their reports to the prosecutor or city attorney in enough time for them to review the case so that everybody is ready to proceed on the day in question. But what happens if you show up at the court house and your name is not on the calendar?

You can go to the clerk of the criminal court and double check. If your name isn't on the list then the clerk will send you to the DA's office or the City Attorney's office (whichever is the prosecuting agency). There, the DA or City Attorney will tell you one of 4 things:

1. The case was rejected, which means no charges will be filed against you.
2. The case was sent back for further investigation by the arresting agency.
3. The case is under review by the District Attorney's office
4. The DA's office hasn't received anything from the arresting agency yet, so they have no information yet.

Unless the case was rejected outright, it is still active even though nothing has been filed yet. You will receive a letter in the mail telling you when the new date and time has been set for your arraignment and it will be sent to the address you gave when you were arrested. If you have an attorney, the attorney can be in contact with the DA or City Attorney before the new date is set.

There are occasions when the attorney can be in contact with the DA's office before the case is filed. In the Law Office of Rudolph E. Loewenstein, we check on filings several times a week for our clients. In some cases we can intervene to stop a filing. At the very least we will be aware of when the case will be heard. There have been times when the client never receives the letter from the court in which case a bench warrant will be issued for his arrest. Of course, no one wants that to happen so being proactive can prevent a lot of problems later.

Normally, criminal charges are filed promptly. However, for a misdemeanor crime, the statute of limitations or the time limit within which the district attorney MUST file charges, is one year from the date of arrest. There are many reasons that the charges may not be filed in a timely manner by the prosecutor's office, but unless a year has passed you are still subject to having charges filed against you unless they are formally dismissed by the district attorney's office.

For a felony, which is a serious crime that carries a penalty of a at least 16 months in state prison, the time frames can differ depending on the crime. Generally it is 3 years from the date of arrest but there are many exceptions. For example the statute of limitations for fraud is 4 years from the discovery of the fraud. In a serious felony the time frame can be much longer than 4 years and for the most serious of crimes, murder, there is no statute of limitations. That's why cold cases can be filed years or even decades later.

If you think charges may be filed against you, it is best to see an experienced criminal defense lawyer immediately. There are instances where prompt investigation and intervention can either lessen the severity of the charges filed or even result in the case not being filed in the first place.