Restored FaithMy job, as a criminal defense attorney, is difficult. The judges, by and large, are against me and my client. The District Attorney is often unwilling to be sympathetic to the human side of my client’s actions. The criminal justice system is harsh and devastating to many who enter it. My friends question “How can you represent people accused of crimes?” Like they don’t have me on speed dial. But, this isn’t about how bad things can be for me in my professional life. It’s about how good and rewarding what I do for a living is.I’ve represented many, many people over my career who have gotten themselves into all kinds of trouble and have found that anyone can make a mistake in their life, rich or poor, young or old, class valedictorian or class clown. Anyone can start walking down the wrong path in life, and some of them just need a little bit of help to get back on track. Some of them make the same mistakes more than once. I give them all everything I have to defend them and restore their lives to them. All too often I don’t know what happens to them after I finish their cases.
On March 24, 2013, an off-duty Cathedral City police officer went to a restaurant to get dinner with a couple of friends. After the officer was seated he noticed a table with several tattooed men who kept staring at him menacingly. One of the men at the table, Mario Alberto Gonzalez, had a visible gang tattoo on the back of his neck. As the group of men left the diner Gonzalez made a hand sign of the “JT” gang and simulated a gun with his hand, which he pointed at the officer’s group.
Gonzalez was charged with five counts of making a criminal threat, one for each person at the officer’s table. Under California Penal Code Section 422 “any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out . . . shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.”
The question in this case was whether a hand gesture is a verbal statement under California Penal Code Section 422. The Supreme Court of California held that no, it is not. Even though the simulated gun was clearly intended to be a threat and the officers took it as a threat, more than a mere hand gesture is required to violate Penal Code Section 422. There are many situations you can think of that would be hand gestures, like a throat slashing movement, that clearly are threatening but under Gonzalez you can’t be prosecuted under this code section for the conduct.
So you find yourself on probation after working out a plea bargain with the District Attorney. Your lawyer and you have entered into a deal where you will spend 3 years on formal supervised probation. What does this really mean to you though?
Being on probation is when you are conditionally released back into the community instead of going to jail or prison for the maximum term possible for whatever crime you committed. Let’s say you plead guilty to a crime that has a maximum possible sentence of 3 years in custody. Instead of serving those 3 years in custody and being done with your obligations, you are put on put on probation. You are released into the community but the possibility of doing the 3 years in custody hangs over you if you don’t meet all the obligations of being on probation.
One common requirement of someone on probation is that the probationer not possess firearms or illegal drugs. This seems pretty clear. If you are on probation you shouldn’t have in your possession guns or illegal drugs. However, recently in the case of People v Hall (2017 D.A.R. 1235 February 9, 2017) the question was does the probationer have to be in knowing possession.
A man walked down the narrow street. He saw a house being remodeled. There was no furniture in the house but there was obviously work being done on it. A “porta potty” was outside the house for the workmen to use. Lots of tools were in the garage; portable belt sander, air compressor, and a nail gun along with other items that could easily be sold. Temptation got the better of him. The man walked into the vacant house through an open unlocked door, where there were no plates, dishes, furniture, or anything else that would look like the house was inhabited.
The man stole the tools with the intent to sell them. While he was in the house the workmen came back and chased him away. Unfortunately for him he was arrested nearby still in possession of the stolen property. He was charged with burglary of an inhabited house and the enhancement that someone was home when the burglary occurred.
How could an obviously uninhabited house qualify as an inhabited dwelling house and just because the workmen come back why is the burglary all of a sudden a violent felony?
California Vehicle Code Section 2800.1 and 2800.2 make it illegal to flee or attempt to evade a police officer. The individual who flees from the police after the police turn on the overhead lights would seem to be in for trouble. What with helicopters, sophisticated radio communication, and everyone on social media instantly following the chase it would seem to be a hopeless proposition. In fact, fleeing from the police can result in a felony conviction punishable by up to 3 years in State Prison and a $10,000.00 fine. If someone is injured during the chase the punishment goes up to a possible 7 years in State Prison and again a $10,000.00 fine. If someone just simply refuses to stop and pull over it can be a misdemeanor.
In order to be guilty of a crime of felony evading a police officer the officer had to have an emergency light illuminated, a siren was sounding as necessary, the person is willfully attempting to evade and is driving in a willful or wanton disregard for the safety of persons or property. Ironically, all of the reckless and wanton driving can occur with lights flashing and siren wailing but if the prosecutor doesn’t do his or her job, a defendant can still be found not guilty. For one fortunate defendant in a recent case, a Mr. Byrd (People v Byrd, July 29, 2016, D.A.R. 7772), the strict requirements of proof worked to his advantage. The prosecutor in Mr. Byrd’s case failed to prove that the pursuing officers, not just one officer but both, were wearing distinctive uniforms as required by Vehicle Code Section 2800.1. That being said, Mr. Byrd’s conviction was overturned on appeal because the prosecutor did not prove the police were wearing their uniforms.
The apparent lesson to be learned is no matter how egregious the conduct, the prosecutor still has to prove all the elements of the crime and if they aren’t proven, there is hope for everyone charged with a crime. Of course, you need to have a defense attorney who understands this and can capitalize on the mistakes of the prosecutor.
I receive lots of inquiries about elder abuse from people who have read my previous blogs and visited my website. Most of the contacts are from folks who believe that their elderly relatives have been either physically or financially abused by strangers or relatives. Since I don’t practice any kind of law other than criminal defense I’m not able to help. If someone is accused of abusing an elder than I have the experience to assist in his or her defense. So, in an effort to assist those not accused of elder abuse I would advise the following to prevent being accused and to prevent the abuse in the first place.
Financial abuse is usually associated with the alleged misuse of monies and property owned by the elderly. If you are in a caretaker position it is vitally important to keep a careful accounting of all monies spent out of the elder’s accounts or from cash kept by the elder. With a clear and concise accounting of any money spent on behalf of the elder, the caretaker is going to be able to defend against the unwarranted accusation of misuse by the family, friends, or government agency who investigates. Failure to keep good financial records can lead to an inability to defend oneself effectively against claims of abuse.
When it comes to physical abuse, the caretaker usually gets into trouble when the elder suffers some physical setback. When family, friends, or the government examine a case for physical abuse it’s always looking in the “rear view mirror”. The accusations of “you should have done this or recognized that earlier” come cascading down on the caretaker regardless of validity. The elder is often difficult to manage physically and emotionally for the caretaker. The elderly don’t like to be told what they can and can’t do and to be required to be washed or moved when they don’t want to be moved. Sometimes there are physical limitations that come on gradually that lead the caretaker to be overwhelmed. The caretaker might fear loss of employment if the family is required to intervene or the senior moved out of the caretaker’s zone of responsibility.
I have had many clients come to me and say, either jokingly or for real, can’t I pay someone to “take care of this?” I always laughingly say, “This isn’t Chicago with Al Capone and gangsters running the courts”. Apparently, I was wrong. At least 600 cases involving traffic citations, DUI arrests, and other assorted cases being “fixed” are being investigated in the Orange County court system.
Many defendants in Orange County are being called into court to explain how their cases were either dismissed, fines suspended, charges reduced, or otherwise resolved all without anyone actually appearing on their matters. The answer appears to be that a clerk in a supervisorial position in the Orange County court entered into the record fraudulent transactions resolving the cases in return for lots of money.
From many defendants’ point of view the idea of paying someone to handle their case is in line with their cultural beliefs. Many in our community have recently immigrated from countries where paying money to government officials to resolve their matters without going to court is a way of life. Coming to the United States and continuing that practice is not something that is seen as criminal but is a normal manner of dealing with the government. A large segment of the community is not educated in the law and as long as they don’t have to go to court and face a judge, paying more than would be required to a third party is a small price to pay.
The DA has the right to charge a DUI where injury is claimed, with either a felony or a misdemeanor. What makes it a felony charge or a less severe misdemeanor is the extent of the injury suffered by the victim. Sometimes it’s obvious that a case is a felony. A clear example of this is a DUI driver who runs a red light and injures another driver, cutting off his leg in the collision. The law is clear that, if as a result of a DUI, there’s a collision that is the fault of the DUI driver and there is injury caused by the DUI driver then the DUI driver could e charged with a DUI With Injury (CVC 23153).
The issue of fault is really important because if, for example, a DUI driver is stopped at a stop sign and another driver rear ends him and is injured, the DUI driver can’t be charged with DUI With Injury because the fact he was DUI has nothing to do with the injury.
I recently tried a case with a DUI driver who had a .33 blood alcohol level, who rear ended another driver on the freeway. There was no doubt who was a fault. But, the driver who was hit claimed soft tissue injury. She treated at a chiropractor who she was referred to by her lawyer. The DA bought the “victim’s” story that she was injured and charged my client with a misdemeanor DUI With Injury. I wouldn’t accept the idea that she was guilty of a DUI With Injury and offered to plead her to a straight DUI. We want to trial. There was only one issue; did my client, who was obviously DUI, cause this “victim” injury?
The jury selection process was dicey. Who among you is open to the idea that the police aren’t telling the truth and the Defendant is? A few hands went up. Most just stared at the Defendant wondering why she was going to trial. Who among you will judge the officers’ testimony just like any other witness? Well, now, this case just might be more interesting than the civil fraud case down the hall. Everybody seemed willing to keep an open mind if the choice is the prostitution trial or listening to a series of bad checks being reviewed.
So twelve citizens who couldn’t think of a good enough reason not to be there were sworn in as the jury. 9 women and 3 men were on the panel.
The detective testified he came into the spa, paid his money, and got an excellent massage until the time when the Defendant started lightly touching his privates. At that point he negotiated a “happy ending” for $30.00. The detective who was in the parking lot listening in on a concealed audio device, come on now, it was hidden in his pants hanging on a chair, heard the bust signal and came rushing in.