Fighting for your freedom
Certified Criminal Law Specialist
Former Deputy District Attorney
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When someone gets invited into a home, can he be charged with burglary if he commits a crime in the house? To commit a residential burglary you have to enter a home with the intent to commit theft inside or a felony of some kind.  In the recent case of People v Garcia, decided on November 14, 2017, the court confirms that you can be convicted of a burglary even if you were invited into the house.


Mr. Garcia was invited to spend the night in his sister-in-law’s home.  While inside the home he went into the separate room of his 12 year old niece and committed sex crimes against her.  Mr. Garcia tried to defend himself against a burglary charge by saying “I was invited into the house so I couldn’t have committed a burglary!”  Not so, said the Court of Appeal.  If, as Mr. Garcia did, you enter into other rooms in the house where you don’t have consent to be, a burglary occurs as to each room you entered without consent.  In Mr. Garcia’s case he had permission to enter the house but not the young niece’s bedroom where the sex crimes occurred. Therefore he fulfilled the requirements of entering a room (the niece’s room) with the intent to commit a felony (sexual molestation).  The intricacies of the law are always changing and you need a lawyer who is constantly up to date.  Your freedom can depend on  it.  


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For years the law in California was use of a gun in the commission of a felony meant a State Prison sentence if convicted.  The consequences of gun use in commission of a crime went beyond just the fact that it made a State Prison sentence mandatory, it also meant that the credits a person earned in custody were limited.   In addition, for future crimes, the use of a gun meant that it was a violent felony.

Now, under Senate Bill 620 starting January 1, 2018, anyone charged with the enhancement of Penal Code Section 12022.5 or 12022.53  (use of a gun during a felony) may become probation eligible if the judge strikes the enhancement.  SB620 gives the judge, who is doing the sentencing, the option to strike the 12022.5 or 2022.53 enhancement if he or she feels it is appropriate in the interests of justice.

How this will be implemented is still unresolved.  If the Court strikes the enhancement pursuant to Penal Code section 1385(a) then it may be that the crime is no longer a violent felony leading to the possibility that the underlying crime isn’t even a strike.  However, if it is stricken only for purposes of sentencing, it may be that the conviction will still qualify as a strike and decrease the credit for time served.  

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Even if you aren’t familiar with the justice system, most people have heard of Miranda rights by watching TV.  These are rights that are guaranteed to a person when he/she is arrested and the police want to interrogate the person.  Before the police question anyone they have placed in custody, they must read these rights and make certain that the suspect either agrees or disagrees with them.  It is not ambiguous.  The person has to explicitly agree to talk to the police knowing that he doesn’t have to.  These are the Miranda rights:  “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?”

When a police officer testifies falsely that the defendant waived his Miranda rights, what happens if the District Attorney doesn’t reveal there is a video tape of the interview that shows the defendant didn’t give up his Miranda rights?

That’s what happened in the recent case of People v Harrison decided by the 2nd District Court of Appeal (B272132 decided October 26, 2017).  The detective testified that he gave the defendant his Miranda rights and then the defendant confessed.  However, a videotape of the interrogation came to light and it was clear that the defendant invoked his right to remain silent.

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There is good news for juveniles convicted of crimes that required a life without the possibility of parole sentences.  New California legislation provides relief for individuals who were convicted of crimes that required a life without parole sentence if they were under the age of 18 at the time the crimes was committed.  For example, previously someone who was convicted of murder for the benefit of a gang would receive a sentence of  life without the possibility of parole even though the individual was as young as 14 years old.  Now under AB1308 individuals in prison will get a chance at parole after 25 years of incarceration.  


It may seem that 25 actual years is a long time to wait for the Parole Board to hold a hearing for a crime but in comparison to never getting out of prison for a crime committed when the person was very young, it is a huge improvement.   

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Here is the scenario: Bob is fishing at Lake X. Sally is swimming and seems to be struggling and then disappears beneath the water. Does Bob, who is an excellent swimmer, have a duty to help save Sally?

In a word, NO. Legally, he has no duty or obligation to help Sally or anyone else he sees in trouble. It may be shocking to think there is no duty to help but that is the law. Bob can film the drowning and air it on Facebook and he is still protected.  It is simply not a crime NOT to help.

Morally you could argue that Bob has a duty to help but that is between Bob and his conscience. Legally, he has no requirement to help. BUT, if Bob does decide to render aid, most states, including California, have Good Samaritan laws to protect Bob. California Health and Safety Code Section 1799.102 says, “No person who in good faith, and not for compensation, renders emergency medical or nonmedical care at the scene of an emergency shall be liable for any civil damages resulting from any act or omission.”   This law was designed to protect the do-gooder from any unintended consequences of his actions. Let’s say Bob does swim over to Sally with the intention of bringing her to shore and prevent a drowning. Given the limitations of the situation and what Bob sees, that is reasonable under the circumstances. If Sally suffers additional problems because of Bob’s actions, (for example, he dislocates her shoulder in trying to lift her out of the water), he is protected from any future lawsuit based on his actions. As long as Bob acted reasonably in trying to save the victim’s life he is protected by the Good Samaritan laws. Without those laws everyone would be afraid to render aid, lest their actions be deemed harmful rather than helpful.


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Can prosecutors strike minorities from a jury simply because of their race?

Since 1978 criminal attorneys in California have not been allowed to remove potential jurors from a jury simply because of their race. During voir dire, or jury selection, counsel on both sides have preemptory challenges and can remove jurors for basically any reason, from being too young, too old, too mean looking, you name it. But minorities are a protected class and a person can’t be excluded from a jury simply because of their racial profile.

But even with this so-called Batson/Wheeler protection, minorities have been getting kicked off of juries for decades. Attorneys who thought having a certain race on the jury panel would disadvantage their case would just kick them off and give other excuses, even if those excuses were flimsy. People v. Gutierrez, 2017 DJDAR 5100 (June 1, 2017), a new case from the California Supreme Court, has recently put some teeth back into Batson/Wheeler challenges.

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Restored Faith
My 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.
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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.  

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The short answer to the question of whether you are responsible to pay for restitution when you are involved in a car accident when you were NOT at fault is NO, you don’t have to pay.  It seems like common sense that if you did not cause the accident you shouldn’t have to pay for it.  The California Supreme Court addressed this issue in People v. Martinez.  In that case the defendant was driving a pickup truck when a 12 year old boy on a scooter failed to stop before darting out in front of him.  The pickup truck had no chance to stop before hitting the boy.  Even the boy’s mother agreed with these facts and that the driver was not at fault for hitting the boy.
In the Martinez case the driver stayed with the boy, waited with the boy’s mother until the ambulance arrived and the ambulance  drove off with the boy inside.  Then the driver left without giving his information to anyone because he was on felony probation and didn’t want to be identified.  The victim in this case was seriously injured with multiple fractures and traumatic brain injury.  The fact that the defendant essentially fled the scene of the accident (even though he stayed until help arrived, he didn’t give his information to anyone) didn’t change the court’s opinion that he didn’t need to pay for an accident that he didn’t cause.  Indeed, the California Supreme Court has said that even if the driver had been negligent and was at fault for the accident he would not be required to pay direct victim restitution.  The only way the defendant would be required to pay restitution would be if his criminal actions CAUSED additional injuries.  In other words if the driver had fled (a criminal act) and had NOT tried to give aid and had NOT stayed to make sure the ambulance arrived and his leaving CAUSED the boy additional medical problems then he would  be required to pay.  If the boy had suffered additional injuries due to the delay in getting medical help, for example, the defendant could be ordered to pay for those increased medical bills because those additional bills were a result of his delaying medical treatment.
This is an example of why knowing the intricacies of the law is so important and hiring an experienced criminal law attorney is so crucial.  The law in this area is somewhat complicated and can be confusing.  Hiring the best criminal defense lawyer is your best chance to avoid paying unnecessary restitution and for avoiding possible criminal charges.
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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.  

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