Orange County Criminal Defense Lawyer Blog

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".