Los Angeles Criminal Defense Attorneys
Greg Hill & Associates22850 Crenshaw Boulevard, Suite 200
Torrance, California 90505
Articles Published by Greg Hill & Associates
Restitution Award in DUI Case Reversed and Vacated Because Trial Court’s Calculation Not Rational
In the following 2009 case, a DUI matter, O.M. was driving his car when hit by DUI Defendant R.P. on Beach Boulevard in Orange County. O.M. sustained broken ribs, back fractures and a serious knee injury.Read Article
A Principal in Disturbing the Peace May Be Sentenced to 25 Year-To-Life for Attempted Murder that Follows
A reasonably foreseeable consequence of two rival gangs disturbing the peace, in confronting each other is a weapons discharge, as did occur. Consequently, as a principal in disturbing the peace, the attempted murder conviction was proper. Therefore, the 25 years-to-life sentenced was proper.Read Article
Court May Not Commit a Mentally Retarded Person Without Showing Violence is Related to Retardation
A court trial was then held on the petition. The evidence was that he was diagnosed shortly after birth in 1966 with being mentally retarded, but not mentally ill until 1992 when he had a violent outburst at his family home and threatened to kill himself. In 1999, he began hearing voices, he said, and also began calling people on the phone incessantly. In 2010, police were called to R.C.’s home in response to an alleged criminal threat made by R.C. over the phone.Read Article
Sex Crime- Defendant Has Right at Trial to Present Evidence of Alleged Victim’s Prior False Claims
A victim may motivated by revenge or spite or even offering to dismiss charges with bribery.Read Article
Resentencing of a Three Strikes Sentence Often Involves Difficult Document Gathering Challenges
Proposition 36 amended the state's Three Strikes Law due to overcrowding of state prisons.Read Article
Conviction Upheld for Possession of an Assault Weapon Although AK-47 Disassembled
The reader of this article may understand that a .50-cal weapon fires a very large round, one that probably can take down a hippopotamus or even perhaps an elephant. It is used in the military often to penetrate buildings with stucco and drywall (the author of this article is a former Marine with seven years of active duty service, including combat experience).Read Article
Enhanced Sentence Upheld on Appeal for Sex Crime Defendant Who Already Was a Penal Code § 290 Registrant
In 1994, California amended its law again so that any sex offense conviction-felony or misdemeanor-required continuous registration, regardless of expungement. This was Penal Code § 290.1 (1994).Read Article
Second-Time DUI Offender’s Prison Sentence Upheld on Appeal
Under AB109, also known as the Criminal Justice Realignment Act of 2011, California began a policy to reduce its prison population to ease over-crowding. The overcrowding was deemed by the U.S. Supreme Court to constitute cruel and unusual punishment for the prisoners and thus a violation of the U.S. Constitution’s Eight Amendment ban against cruel and unusual punishment.Read Article
What Are the Defenses to Possession of Child Pornography (Penal Code § 311)?
Make no mistake about it. Possession of child pornography (Penal Code § 311) is considered a serious crime. However, it is subject to many defenses, regardless of whether defendant faces federal charges or state charges.Read Article
17 Year Old May Be Charged as an Adult with Federal 2nd Degree Murder Based on Lay Testimony
Congress established six factors that a district court must consider to determine if such a transfer is in “the interest of justice.”Read Article
Defendant Removed from Courtroom Not Entitled to Have Audio Video Feed to Hear or See Testimony in Trial
Defendant appealed his conviction on multiple grounds, however, this article will limit its scope to Defendant’s argument that his state and constitutional due process rights to a fair trial were violated by not being provided a video or audio feed of trial proceeding after he was removed from the courtroom. Defendant had moved earlier for a mistrial on such grounds, but that motion was denied.Read Article
What is Meeting a Child for Lewd Purposes (Penal Code § 288.4)?
Penal Code § 288.4 is a “wobbler,” meaning it can be filed as either a misdemeanor or a felony, depending upon the facts of the case and the client’s criminal history. It is most often filed as a misdemeanor if the defendant has absolutely no prior criminal history (excluding minor traffic offenses such as speeding or parking tickets).Read Article
Man Who Impersonates Female’s Boyfriend while Having Sex Is Improperly Convicted of Rape
Accordingly, the conviction was reversed and the matter was remanded for retrial, with instructions to the trial court to remove that part of the subject jury instructions which said, “or not aware of the essential characteristics of the act because the perpetration tricked, lied to, or concealed information from her.”Read Article
Federal Judge Incorrectly Classifies Crack Seller as Career Offender
The U.S. sentencing guidelines defined “controlled substance offense “as an offense “as an offense punishable by a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or counterfeit substance) with intent to manufacture, import, export, distribute or dispense.”Read Article
Thirteen New Crime-Related Laws to Know for 2013
This article’s focus is narrower. The following new laws affect criminal liability, as they are additions to the Penal Code and involve criminal liability, meaning jail, prison, fines, seizure or forfeiture of assets. The laws are referred to by the AB or SB number, or Assembly Bill and Senate Bill number, respectively. Their statutory reference in the Penal Code will be established shortly, but are not at this time.Read Article
What is a STATIC-99 Report?
Prosecutors often ask for STATIC-99 report to document how dangerous a defendant is and to support a longer sentence or more onerous plea bargain.Read Article
Marijuana Grower’s Conviction for Voluntary Manslaughter Upheld from Killing Thief of His Crop
The issue here for PD was whether he followed a continuing course of conduct, allowing the court to punish him for multiple, separate, distinguishable acts so that § 654 was not violated. The California Supreme Court in Neal v. State of California (1960) 55 Cal. 2d. 11, first allowed such an approach, which the Fresno judge obviously followed by adding a twenty-five year term to the three year term, although the two sentences were to be served concurrently.Read Article
Expungement of Petty Theft Conviction a Mistake, Although Defendant Consequently Faces Deportation
In 2011, he again attacked his 1997 petty theft conviction, by way of an “invitation” that the court dismiss the judgment of conviction under Penal Code § 1385. It merits mention parenthetically that only prosecutor can move to dismiss a case under section 1385. Thus, a defendant must instead “invite” the judge to exercise his discretion under 1385 to dismiss the case.Read Article
Partygoers’ Convictions for Attempted Murder Based on “Kill Zone” Theory Reversed
The Second Appellate District, in People v. J.S. (2012 DJDAR 16323), quickly recognized that the “kill zone” theory was based on principles of transferred intent. The court pointed out the distinction between the intent in murder and that in attempted murder.Read Article
What is Indecent Exposure (Penal Code § 314)
“Exposing oneself” means to reveal your entire naked body. Exposing one’s “private parts” means to show your bare genitals. Showing a bare female breast is not considered exposing one’s “private parts” (or else breastfeeding mothers might face indecent exposure charges). Similarly, flashing someone your under wear, no matter how revealing or skimpy, is not indecent exposure for purposes of Penal Code § 314.Read Article
Court Incorrectly Grants Certificate of Rehabilitation By Not Evaluating Recent Drug Offense
The prosecution argued that the request for a certificate should be denied because the plain text of Penal Code § 4852.05 requires, the applicant to, during the period of rehabilitation, “live an honest and upright life… and obey the laws of the land.” As M.Z. admitted he committed a felony in 2007, the petition should be denied on that basis alone.Read Article
DUI Arrest Proper When Man Stumbles in Middle of Road While Picking Up Fallen Tools
Sometimes an officer will find someone sleeping in their car on the side of the road, often in the early morning hours. Other times, a driver will park his car along the side of the road and run into the bushes to urinate or vomit, only to meet an officer as the driver returns to the car, keys in hand.Read Article
Ten Year Restraining Order Proper for Mother Who Stalks Husband and Scares Daughter
In November of 2007, Mrs. N.C. went to her husband’s house, where her daughter then lived. She took a Lynx Black Cat golf club with her and pounded on the front door of the house, demanding custody of her daughter. The daughter was inside and heard the pounding, but B. did not open the door. B. told Mrs. N.C. he would call the police. Their daughter “saw her mom and then ran to her room, crying.”Read Article
Conviction for Attempted Criminal Threat (PC 422) Proper Although Neighbor’s Fears May Have Been Unreasonable
This article will mostly cover just the first ground of the accused's appeal. The Fourth Appellate District began its analysis by nothing that there are five elements of the crime of making a criminal threat, according to In re George T. (2004) 33 Cal. 4th 620, 630, fn. omitted.Read Article
Removal Order Affirmed For Alien Convicted For Use Of Drug Paraphernalia
Oseguera then filed a motion in federal district court to dismiss the indictment under 8 U.S.C. § 1326 based on a collateral attack that the removal order was erroneous. Oseguera argued that he was not properly removed because his drug paraphernalia conviction was not a violation relating to a controlled substance.Read Article
Dismissal of Forgery Charges Reversed Although Defendants Impersonated No One During Scheme
Saul Barba and Jessica Lofgreen had apparently taken the checkbook from Ashby’s car. Barb had already cashed one of Ashby’s business check made out to himself for $250, one to his wife for $600, and another one to himself for $600. While the third check was being cashed, police arrived at the check cashing establishment and followed Barba to his van, where they found Lofgreen.Read Article
Expungement Not Available When Probation Terminated In Domestic Violence Case
To qualify for expungement in California, a conviction must be for certain offenses, generally described as any offense which involved a sentence of less than one year in county jail. If the individual was granted probation, the defendant must fulfill the condition of probation. In addition, the applicant must not be serving any sentence for any offense, on probation or charged with the commission of any offense.Read Article
Sentence for Juvenile of 100 Years is Cruel and Unusual Punishment or Aiding and Abetting Murder
Both Hernandez and Argeta were charged with one count of murder (Penal Code 187 (a)) and five counts of attempted, willful, deliberate and premeditated murder (Penal Code § § 664, 187(a)). It was alleged as to all counts that the offenses were committed for the benefits of a criminal street gang (Penal Code § 186.22 (b) (1)) and that there was an intentional discharge of a firearm causing great bodily injury and death (Penal Code § 12022.53 (d) and (e) (1)). Hernandez was charged as an adult.Read Article
Conviction for Possession of Materials to Produce Drugs Reversed
The prosecution argued that “Sufficient” referral only to quantity. The appellate court, using principles of statutory interpretation, looked at the legislative history and found that the legislature’s focus was preventing the manufacture of hydriodic acid, the reducing agent. This agent “reduces” pseudoephedrine (i.e. from Sudafed) to methamphetamine by removing an oxygen molecule from pseudoephedrine.Read Article
What is Vandalism and Graffiti (Penal Code § 594)?
A complaint alleging a violation of section 594 can be filed as a misdemeanor or a felony. When the value of the damage is less than $400, the complaint is for a misdemeanor violation; when it is $400 or more, the complaint is filed as a felony. However, it is possible to resolve cases as misdemeanor vandalism when the value of the damage is over $400 and defendant has no prior record.Read Article
What is Reckless Driving (Vehicle Code § 23103)?
Reckless driving is defined as driving “a vehicle upon a highway in willful or wanted disregard for the safety of persons or property…” Under subsection (b) of Vehicle Code § 23103, this crime can be committed also in an off-street parking facility.Read Article
What is Assault (Penal Code § 240)?
Assault is a crime that often seems hollow because no one is physically injured, although no prosecutor would so characterize it.Read Article
What is Child Abduction (Penal Code § 278)?
It is not only divorces and child custody proceedings that you will hear one parent claim the other parent has “abducted our child.”Read Article
Street Racing and Assault with Deadly Weapon (the Car) Conviction Upheld
Two witnesses at different locations observed his van going at about sixty miles per hour as it approached Estelle Avenue.Read Article
Juvenile Who Stole Car and Totaled It Must Pay Restitution that Included Interest On Car Loan
T.C., a minor, stole a car and then rammed it into a curb in a high school parking lot, rendering it a total loss.Read Article
What is Kidnapping and Aggravated Kidnapping?
Kidnapping is often considered a crime only practiced in third-world countries like El Salvador and Ecuador.Read Article
DUI Conviction Upheld Based on Ambien-Induced “Sleep Driving”
Unconsciousness is a complete defense to a criminal charge unless defendant voluntarily induced his or her unconsciousness.Read Article
When Must a Juvenile Be Sentenced to a Juvenile Facility?
The discussion usually continues into a discussion of fire camp and home on probation (HOP).Read Article
Can an Out of State Conviction Count as a Strike under California’s Three Strike Law?
In each Illinois case, the crime is defined as involving personal infliction of “great bodily harm.”Read Article
Involuntary Manslaughter Conviction Upheld for Injury from Eight Years Earlier
Jose Moncada was caring for his then three month old son, Joseph. Joseph was fussy and Jose became frustrated from the crying.Read Article
When Must a Juvenile Be Sentenced to a Juvenile Facility?
There is such an apparent “crimes spree,” a common question we hear is whether the juvenile will go to “juvenile hall,” prison or jail for an extended period, or at allRead Article
Can An Out of State Conviction Count As A Strike Under California’s Three Strike Law?
Cortez Washington was convicted in Illinois in 1998 of aggravated battery with a firearm, a felony, and in the same state, in 1993, of aggravated battery, also a felony. In each Illinois case, the crime is defined as involving personal infliction of “great bodily harm.”Read Article
In Juvenile Vandalism Case Involving Graffiti, Restitution Cannot Include Investigation Costs
The alleged damage was over $400, a violation of Penal Code § 594 (a) (“Felony Vandalism”).Read Article
Confession Is Inadmissible if Probation Offic Promised Shorter Sentence If Suspect Waived Right To An Attorney
Nn parole, Christopher Gonzalez used a hammer to hit Daniel Castillo in the face, fracturing his jaw, skull, cheekbone and noseRead Article
Operator Of Medical Marijuana Collective Is Entitled To Assert Defense Under Prop 215 And The MMPA.
Voters passed Proposition 215, the Compassionate Use Act of 1996 (“CUA”) and it was put into legislationRead Article
Police Detention Is Illegal When Based On Only One’s Resemblance To A Suspect
It is well-established law that in order to justify an investigative stop or detention, police must have a “reasonable and articulable suspicion that some activity relating to a crime has taken place or is occurring or is about to occur and that the person is involved in that activity.”Read Article
A Juvenile Court May Not Automatically Transfer Case to Adult Criminal Court Without a Hearing
The People filed separate Penal Code § 602 petitions in juvenile court against Juan G., alleging such violations. Juan G. was sixteen years old in early 2012 when he allegedly committed attempted murder and violated the terms of a criminal gang injunction. The People filed separate Penal Code § 602 petitions in juvenile court against Juan G., alleging such violations.Read Article
Sixth Amendment Not Violated in DUI Case When Someone Testifies about Lab Report by Someone Else
On the night of August 17, 2007, Virginia Lopez was working at a restaurant in Julian, California, near San Diego. While working, she had three shots of tequila between 8:45 p.m. and 10:15 p.m. At about 11:00 p.m., she left work to drive home. As she drove home, she ran head-on into a pick-up driven by Allan Wolowsky, killing him. About two hours after the accident, Ms. Lopez provided a blood sample.Read Article
Shooting Someone with ABB Gun Can Be Assault With A Deadly Weapon (Penal Code § 245(a)(1))
Quamie Brown allegedly drove his white Cadillac up to Gerardo Calderon and Jesus Castro, who were standing on the sidewalk. Brown allegedly called over to Castro, through his rolled down window, “What the fuck are you guys doing here? Get the fuck out of our neighborhood.” Castro then told Calderon, “Let’s get out of here.”Read Article
Wiretap Information Leading to Seizure of 353 Kilograms of Cocaine Properly Denied to Defendant
Law enforcement obtained orders authorizing wiretaps involving fourteen cell phones used by defendant Steven Montes. The orders involved the magistrate’s finding of probable cause that Montes and others “have committedIn 2005 and 2006, law enforcement obtained orders authorizing seven wiretaps involving fourteen cell phones used by defendant Steven Montes.Read Article
One Count of Indecent Exposure (Penal Code § 314) Proper Even if Multiple People Witness Conduct.
Troy Smith allegedly masturbated in public view of others on three separate occasions. Two separate groups of people claim they saw this. In the third incident, Mary Hernandez allegedly was standing in her house and looked out the window to see Smith masturbating in her backyard. Ms. Hernandez quickly closed the curtains.Read Article
What is Arson (Penal Code § 451 and § 452) and Its Defenses?
Penal Code § 451 states that a person is “guilty of arson when he or she willfully and maliciously sets fire to or burns or causes to be burned or who aids, counsel or procures the burning of any structure, forest land or property.” A conviction for a violation of § 451 is a felony, carrying with it a minimum prison sentence of sixteen months and a maximum sentence of three years in state prison.Read Article
Felony Vandalism Charges Proper When Prosecutor Adds Damages Up from Multiple Victims
The Second Appellate District recently made new law by affirming a Pomona judge’s decision that felony, rather than misdemeanor, vandalism charges were proper when the total damages are considered. In this case, there were damages suffered by defendant’s mom and an apartment owner, which when totaled, exceeded the misdemeanor vandalism limits of $400.Read Article
What is Resisting Arrest Under Penal Code § 148(a)(1)?
Resisting arrest under Penal Code § 148(a)(1) is the misdemeanor version of Penal Code § 69, which is usually a felony. Section 148(a)(1) is violated when one obstructs an officer or EMT when the officer or EMT is performing his or her duties. The prosecution must prove that defendant knew or should have known that the person affected was an officer or an EMT performing such duties.Read Article
What Are Criminal Threats and the Defenses to this Charge?
Penal Code section 422 defines criminal threats as “willfully” threatening to kill or injure someone, unequivocally and with sufficient specificity that the recipient of the threat is placed in a state of reasonably “sustained fear” for his immediate safety or that of his or her family. The threat can be communicated verbally, in writing or electronically.Read Article
Second–Time DUI Offender Must Be Granted Restricted License After 90 Days of Actual Suspension
On July 1, 2010, Vehicle Code § 13352(a)(3) was amended to allow second time DUI offenders to apply for a restricted license with installation of an IID after ninety days of actual suspension. Previously, a second-time DUI offender was stuck with a one year license suspension.Read Article
How Much Custody Credit Do I Get?
Since 2009, there have been no less than five legislative changes to the way presentence conduct credits are calculated, leaving even the most informed judges, district attorney and defense attorneys confused. The recent case of People v. Paul Garcia (2012 DJDAR 13257 (Sept. 24, 2012)) serves to clarify the law on this important issue.Read Article
Can An Anonymous Cell Phone Call to Police Support a Traffic Stop for DUI?
With the proliferation of cell phone use, police often receive calls from motorists who claim to be witnessing a driver who appears to be intoxicated and a danger to other motorists. Sometimes, the driver is not willing to give his name for fear of being called to court as a witness. The witness may believe that he will be arrested on an outstanding warrant, overdue child support or for immigration issues.Read Article
Juvenile Commits First Degree Residential Burglary by Stealing Guns from Closet Near Home Entry
In San Diego County, a juvenile (“M.A.”) entered a house with the owner’s permission without any intent to commit a felony therein. While inside, he learned that there were guns in a closet and then decided to steal then. The closet was three feet by four feet and in the home’s entry way, but not in the home’s interior.Read Article
First Degree Burglary Conviction Upheld When Residential Home Uninhabited and Realtor’s Wallet is Stolen.
Under Penal Code § 460, every burglary of an inhabited dwelling is first degree burglary. Burglary of a structure that is not an “inhabited dwelling house” is second degree burglary. On June 27, 2010, realtor Janice Konkol was conducting an open house of a home in Irvine. Rodney Little and his girlfriend walked into the house.Read Article
If I Am Arrested, Can Police Look at My Text Messages?
Erik Rangel allegedly beat and stabbed a man in a San Mateo park. The crime was believed to be gang related. Days later, a judge signed a warrant for Rangel’s arrest and a search warrant for Rangel’s home. The search warrant authorized the seizure of stabbing instruments, as well as items containing stains or traces of human blood. The search warrant further authorized the seizure of items commonly known as gang indicia.Read Article
The Police Took Your Money, So You Usually Get it Back, Plus Interest
Under Health and Safety Code § 11469(i), when a government agency seizes a person’s money, the agency has a duty to protect the money and preserve its value. The government does this by placing the money into an interest bearing account instead of allowing the money to lose value over time. Moreover, the person whose money was taken is often entitled to get his money back, plus the accrued interest.Read Article
Federal Conviction Reversed for Assault Because Federal Officer Not Aware Defendant Threw Rock at Him
On June 18, 2009, Enrique Acosta-Sierra threw a baseball-size piece of concrete at U.S. Custom and Border Protection Officer Abram Lopez. Acosta-Sierra missed, although he was only seven or eight feet away. Officer Lopez only became aware of the attempted battery (assault) when the concrete hit the metal gate behind him and made a loud noise.Read Article
Seven Years to Life Sentence for Dissuading a Witness for Benefit of a Gang Reversed Because Force Threatened
Michael Valles was fatally shot at a tattoo parlor in Stanislaus County in 2004. Felix Lopez was charged with violating Penal Code § 187, murder, as well as four other counts associated with the crime, including attempting to dissuade a witness from testifying (Penal Code § 136.31(a)(2) and active participation in a street gang (Penal Code § 186.22(a)).Read Article
Does the Law Against Carrying a Dirk or Dagger Violate My Constitutional Right to Bear Arms for Self Defense?
On September 28, 2010, a security guard removed Kenyatta Quinn Mitchell from the San Diego trolley because Mitchell did not have a ticket to ride the trolley. Another guard came to assist and noticed that Mitchell had a concealed knife sticking out from under his sweat shirt. The police were then summoned to the scene. They arrived and found Mitchell with an eleven inch knife.Read Article
The Police Asked Me to Be an Informant- Should I?
The activities of an informant are glamorized in movies and on television as dangerous, exciting, and dramatic. The informant can be the key witness everyone relies upon, so they are respected as powerful. Police appreciate this image of an informant, so it is not uncommon for police to appeal to this sense of adventure in saying, “Give us three and we’ll set you free.”Read Article
What Is Mayhem (Penal Code § 203) and Aggravated Mayhem (Penal Code § 205)?
If one is charged with mayhem, or aggravated mayhem, it is not unusual for the rhetorical question of, “what is mayhem?” to be asked. After all, “mayhem” is not a word often used nowadays.Read Article
What Is Penal Code § 647(b), Prostitution and Solicitation for Prostitution?
California Penal Code § 647(b) prohibits one from willfully engaging in a sexual act in exchange for money or other goods or services (typically drugs). This seemingly broad definition does not include pimping and pandering, which are separately addressed (Penal Code § 266 and 266i) or indecent exposure (Penal Code § 314). The scope of § 647(b) includes both the prostitute and the customer, also known as a “john.”Read Article
What is House Arrest as an Alternative to Jail?
If you face a jail sentence, but also have enormous responsibilities at work and / or for your family, i.e. child care or an elderly parent, house arrest may be something you should request as an alternative to jail. House arrest is specifically provided for at Penal Code § 1203.016, where it is called “home detention.”Read Article
Will the Prosecutor Dismiss the Domestic Violence Case if the Victim Will Not Testify or Appear at Trial?
A common question our office often hears is whether the prosecutor will dismiss or drop the case if the victim refuses to testify at trial or even refuses to appear at trial. Indeed, there are cases where this has occurred, but such cases are actually rather rare. It is important to note from the outset that this article excludes application to probation violation hearings, which have different rules concerning unavailable witnesses. People v. Stanphill (2009) 170 Cal.App.4th 61.Read Article
What Happens at a Felony Preliminary Hearing Setting Conference?
As its name implies, at a felony preliminary hearing setting conference, a date is set for the preliminary hearing in the case. Yet that is only one of many important things that may happen at such a seemingly simple, single-purpose hearing. More importantly, the prosecutor and the defense attorney may negotiate, or attempt to negotiate, a plea bargain that would resolve the case (also referred to as “reaching a disposition”).Read Article
Sixth Amendment Right to Fair Trial Means Family Can Be in Court During Sentencing
It is not uncommon in many serious cases for a defendant being accused of a serious crime to “pack the courtroom” with friends and family. The presence of friends and family is to show support for the defendant, both to the defendant and court, including the judge and the prosecutor. When the defendant is in custody and he or she sees the support, the defendant feels better.Read Article
What Is Tampering with a Vehicle (Vehicle Code § 10852)?
Under Vehicle Code § 10852, it is illegal to tamper with a vehicle. The text of 10852 reads, “[n]o prison shall either individually or in association with one on more persons, willfully injure or tamper with any vehicle or the contents thereof or break or remove any part of a vehicle without the consent of the owner.”Read Article
What is Trespassing (Penal Code § 602)?
Trespass means many things to many people. To one person, it means walking into an area posted with signs that state, “No Trespassing.” To others, it means walking into a business, loitering for a long time and then leaving without making a purchase. To others, it may be a homeless person living for several days, or even weeks, at an empty foreclosed upon house without permission.Read Article
What is Disturbing the Peace (Penal Code § 415)?
For one who is unfamiliar with California’s criminal courts, the charge of disturbing the peace may conjure up thoughts of a homeless man shouting obscenities at passing cars on a busy street. It may conjure up ideas that the charge is for someone who plays his stereo too loud at a party, disturbing neighbors late at night. It may also be two folks arguing too loud in a restaurant.Read Article
What is False Imprisonment (Penal Code § 236)?
False imprisonment prohibits wrongful restraining, confining or detaining a person without that person’s consent (Penal Code § 236). The most common context of this that our office sees is when someone transports someone in a car, against their will, usually during an argument after the person asks to be let out of the car.Read Article
What Is Statutory Rape?
Statutory rape is defined under Penal Code § 261.5 as sexual intercourse with a person under 18 years of age. The two individuals cannot be husband and wife. This crime is more broadly often referred to as unlawful sex with a minor, although this description includes other forms of sex besides intercourse.Read Article
What is a Misdemeanor Pre-Trial Hearing?
The legal process is packed with terminology that can be misleading even to attorneys. For example, a pre-trial hearing certainly implies that trial is imminent or definite. Therefore, when our office advises a client, following an arraignment on a misdemeanor, that the judge set a pre-trial hearing, the client becomes anxious. The client sometimes believes that his setting implies his or her case is going to trial without any attempt at plea bargaining.Read Article
What is Receiving Stolen Property (Penal Code § 496)?
Receiving stolen property happens when someone purchases or obtains possession of an item that was acquired by the seller or “giver” by theft (i.e. burglary, embezzlement, shoplifting, robbery), fraud or any other unlawful means. Our office has seen this charge arise from purchases allegedly from pawn shops, garage sales and swap meets.Read Article
Do Warrants Expire?
Our office often receives phone calls from folks aware that “a warrant was issued” and they are anxious to know what do to next, as they fear police may execute it on them at any time. Our first reaction to such a question is to clarify what type of warrant (arrest, bench, search or complaint) is involved and second, how they became aware of the warrant.Read Article
When One Admits to Having Marijuana, A Search is Legal When an Arrest Follows
A search conducted without prior approval by a judge (in the form of a warrant) is unreasonable under the Fourth Amendment to the U.S. Constitution with the exception of a few situations. Such exceptions arise quite frequently in day-to-day police investigations. Arizona v. Gant (2009) 556 U.S. 332, 338.Read Article
What is Grand Theft Auto?
Grand theft auto, also referred to as “GTA,” vehicle theft and / or just auto theft, is the unauthorized taking of another’s car with the intent to permanently deprive the owner of the car. It may be by force, trick or false pretenses. Sometimes, the suspect takes the car to a “chop shop” to have the car disassembled for money or the suspect intentionally fails to return a rental car.Read Article
What is Joyriding?
Joyriding is a temporary taking of a car or motorcycle (Vehicle Code § 10851), bicycle (Penal Code § 499b(a)), or boat (Penal Code § 499b(b)), without the owner’s permission. The taking is generally thought to be for enjoyment only and is often committed by juvenile males. When the use of the vehicle, bike or boat is no longer enjoyable, the user returns or intends to return the item to the owner. Sometimes, the vehicle, bike or boat runs out of gas before it can be returned.Read Article
Witness Intimidation Can Make Admissible Otherwise Inadmissible Hearsay
It is common in domestic violence cases, as well as certain theft cases and certainly gang-related cases, that the unavailability of a witness for trial can mean a dismissal or defense verdict. For example, when a wife or girlfriend is the only witness to defendant’s conduct and she cannot or will not appear at trial, the prosecution may dismiss the case. Our office has experienced this many times on first day of trial, to our client’s relief.Read Article
What is Unemployment Insurance Fraud?
Unemployment insurance fraud is the receipt of unemployment benefits to which one is not entitled, or assisting one in such receipt. It is a particularly prevalent crime in today’s tough economy with numerous underemployed workers. Workers who may have been unemployed for some period of time, only find work at lower pay than expected, continue to receive unemployment benefits when they are simultaneously receiving pay.Read Article
Driving Without a Valid License (VC § 12500(a)) or on a Suspended or Revoked License (VC § 14601)
One of the more common offenses our clients face, usually in conjunction with other offenses such as DUI or speeding, is without a valid license, a violation of California Vehicle Code § 12500(a), or driving on a suspended or revoked license, a violation of Vehicle Code § 14601.Read Article
What Are the Limits of a “Protective Sweep” Search Without a Warrant?
It is well-established law that warrantless searches of a home are “presumptively unreasonable” under the Fourth Amendment. Payton v. New York (1980) 445 U.S. 573, 586. However, it is also well-established law that law enforcement arresting someone in a house may perform a quick and limited “protective sweep,” warrantless search for their own safety when there is a reasonable suspicion that the house may contain a dangerous person.Read Article
What Are Illegal Tinted Windows (Vehicle § 26708.5)?
Our office has heard many clients report that they were pulled over because the police officer told them they had illegal tinted windows. The client usually suggests that the police officers had a hunch that our client was DUI, on probation, had drugs in the car or was wanted for an unsolved crime. The tinted windows, in other words, were just a pretext for the police to set up our client for a search, an arrest and much bigger charges than just illegal tinted windows.Read Article
What is Forgery?
There are four types of conduct that can be prosecuted as forgery under Penal Code § 470. Each is considered a serious crime and a crime of moral turpitude that can have immigration consequences. First, one can be prosecuted for signing someone else’s name without that person’s authorization. The most common context of this is trying to cash someone else’s check to you by signing the account holder’s signature on the check.Read Article
First Degree Residential Burglary is a Crime of Violence Under Immigration Laws
In 2007, Ramiro Ramos-Medina was convicted after a jury trial of First Degree Residential Burglary, a violation of Penal Code § 459. The judge sentenced him to two years in state prison. Mr. Medina was not a U.S. citizen. Immigration officers told him that his conviction was a “crime of violence” under 8 U.S.C. § 16(b) and thus, an “aggravated felony” under the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43) and § 1227(a)(2)(A)(iii).Read Article
What is Passing Bad Checks (Penal Code § 476(a))
Passing a bad check is tendering a check for goods or service, from a bank account that has insufficient funds to pay the full amount of the check. It happens every day, to the tune of millions of dollars in California alone. Even attempting to tender a check with insufficient funds is a crime. The payee does not need to receive the check and attempt to cash or deposit it.Read Article
What is Embezzlement (Penal Code § 503)?
The mention of embezzlement conjures up images of an untrustworthy accountant methodically stealing small amounts of cash over a long period of time, adding up to thousands of dollars, or an employee at a cash register dropping a few dollars here and there into his or her pants pockets. Sadly it seems the most common type of embezzlement recently is by caretakers stealing from an elderly person.Read Article
Are Criminal Threats Protected Speech Under the First Amendment? Appeals Court Say No.
At about 2:00 a.m. on January 26, 2010, Margarito Iboa had a fire going on in his backyard. The Lancaster Fire Department arrived at his house. While firefighters attempted to extinguish the fire, coming from a 10 to 12 floor high mound of trash, Iboa yelled expletives at them and moved fire hoses a round, apparently in an attempt to disrupt their work.Read Article
Conviction Reversed for Possession of Burglary Tools (Penal Code § 466)
In newspapers, one often reads of someone being arrested and charged with the possession of burglary tools. Perhaps one has even more personal knowledge of such charges. Rhetorically speaking, just what are “burglary tools?” If one is arrested while attempting to begin a residential burglary and is found to have blue latex gloves and a large black bag, are these “burglary tools?”Read Article
What is Robbery?
In movies and television, robbery is often portrayed as someone using a gun to take money from someone operating the cash register at a liquor store. The legal definition of robbery, however, is much broader. It is the taking of another’s property from his person or his immediate possession, against his will, by force or fear, with the intent to permanently deprive the owner.Read Article
What is Carjacking?
Carjacking is the theft of a car by means of force or fear (Penal Code § 215). Force or fear requires that the defendant actually inflicts physical force upon the victim or that the defendant threatens to inflict imminent physical harm upon a driver or passenger, or even someone outside the car. The key is that the threat be made or physical force be used to gain control of the car. For such reasons, carjacking is a strike offense.Read Article
What is Commercial Burglary (Penal Code § 459) and What Are the Defenses?
Commercial burglary, defined at Penal Code § 459, is the entering of a shop, store; office building, or any other commercial building with the intent to steal and then stealing something. This crime is also defined as entering a commercial building with the intent to commit a felony other than stealing the property of another.Read Article
What is Shoplifting and Its Defenses?
Shoplifting is the unpermitted taking of an item belonging to another with the intent to permanently deprive the owner of the item. It is defined as petty theft (California Penal Code § 484 (a)), which means the value of the items stolen is $950 or less. It is always a misdemeanor, but nonetheless serious because it is a crime of dishonesty and a conviction for this can have immigration consequences. Even the mere charges can destroy one’s employment opportunities and reputation.Read Article
Opening a Garage Door with a Stolen Garage Door Opener is Only Attempted Burglary, Not a Completed Burglary
Our offense has received several calls over the years about a romantic relationship that ended, but one party retains possession of a remote control garage door opener to the garage of the other person. The caller asks us what we can do or they should do to prevent the other party from burglarizing their home, where they are no longer welcome.Read Article
Good Faith Exception to Execution of an Improper Search Warrant
It is well established law that probable cause for a search requires a “fair probability that contraband or evidence of a crime will be found in a particular place, based on the totality of the circumstances.” Dawson v. City of Seattle (9th Cir. 1983) 435 F.3d 1054, 1062 (quoting Illinois v. Gates (1983) 462 U.S. 213, 238).Read Article
Appeals Court Holds, in a Romero Motion, that There is No Dismissal for Strikes Arising from Same Act
In 1999, Darlene Vargas was convicted of both carjacking and robbery arising out of her role in the theft by force of a car. In late December, 2008, Defendant faced charges of burglary, grand theft and receiving stolen property. In the complaint for this case, it was alleged that Vargas had the two prior convictions from 1999, both strikes.Read Article
DUI Based on Being Under the Influence of Drugs
It is fairly uncommon for DUI to be prosecuted for a driver being under the influence of drugs, but it does happen in perhaps one in every 200 DUI prosecutions. The charges are just as serious as those of alcohol-based DUI, but there is no blood alcohol content (BAC) data to evaluate the severity of the intoxication. This is because in drug related DUI’s, there is only blood tests and urinalysis.Read Article
Sixth Amendment Not Violated in Rape Case when Expert Introduces Hearsay that Supports Conviction
Benjamin Flourney allegedly raped L.M., in 2003 when she spent the night at his apartment. L.M. first went to one hospital the next day and reported being raped by a stranger. The next day, she went to another hospital, where she claimed the same thing. At the second hospital, police took her clothes and she was given new clothes, including new underwear. L.M. did not did not consent to an internal examination, so the nurse did not perform an internal examination with a speculum.Read Article
Orange County Judge Reversed for Refusing Production of Internal Affairs Witness Statements
Edward Rezek was charged in Orange County Superior Court with delaying or obstructing a police officer in the performance of his duties (Penal Code § 148 (a) (1)) and vandalism (Penal Code § 594 (a)), both misdemeanors. Rezek allegedly punched the hood of a car driven by a private security guard in a parking lot at a Tustin shopping center, causing damage to the vehicle. The security guard then made a citizen’s arrest.Read Article
Do Crimes of Moral Turpitude Include Illegal Possession of Assault Weapon and Cultivating Marijuana?
When most people think of crimes of moral turpitude, the first thing that comes to mind is a conviction for robbery or perhaps rape. In the case of Solomon Gabriel, the issue was whether his prior convictions for unlawful planting, cultivating or harvesting of marijuana (Health and Safety Code § 11358) and unlawful possession of an unregistered assault weapon (Health and Safety Code § 12280) constituted crime of moral turpitude for purposes of impeaching his credibility.Read Article
How is Bail Set?
It is easiest to think of bail as money one must give to the court in order to leave jail. The money is used as collateral to ensure one appears as ordered in court. If one does not appear, the court keeps the money. The money at issue is usually not deposited with the court. Instead, a bail bond company pledges to pay the full amount if the defendant does not appear.Read Article
What is GERD and How Does it Affect DUI?
There is a cliché that “Garbage in gives garbage out.” Nowhere is this seemingly more true, perhaps almost literally, than in the case of someone who suffers from GERD, also known as gastroesphageal reflux disease. GERD is also known as heartburn and has symptoms similar to those caused by acid reflux syndrome. Someone who suffers from GERD literally expels stomach vapor and gasses back up through their throat and out their mouth.Read Article
How Much Time Will I Serve?
In nearly every case, our clients ask about how much time they will actually spend in jail or prison. This curiosity arises not just because of widespread media attention about jail and prison overcrowding resulting in shortened sentences, but out of concern for their employment, their family’s financial support and simple anxiety over being incarcerated.Read Article
“Bad Cops” and Pitchess Motions
Our office often hears clients describe how a police officer made a traffic stop of them because they “look like a gang banger” or “because the cop knows me” or “because the police officer just wanted to check out my girlfriend, who was a passenger.” Our client may claim the officer planted evidence. Or our client may say the police lied in the police report or coerced a confession.Read Article
Should I Waive a Jury Trial and Instead Have a Bench Trial?
In many cases, especially when the crime is publicly scorned (i.e. DUI, domestic violence, animal cruelty, sex offenses) yet a bona-fide defense exists, one should consider waiving a jury trial. The case is then tried to only the judge. This can make it easier to focus the case on evidence and argument that matters most toward a not guilty verdict, rather than spending a lot of time and effort persuading twelve jurors to put aside their biases.Read Article
Can I Withdraw My Plea Based on Ineffective Assistance of Counsel?
Our office receives numerous inquiries about withdrawing a plea based on a variety of grounds. The underlying reason is that the potential client believes that the terms of the plea are unfair. Sometimes the potential client believes his or her prior counsel provided ineffective assistance because little or no investigation was performed of various defenses or there was a proper basis for an arrest.Read Article
How Do I Have My Arrest Record Sealed and Destroyed?
Our clients who are unlucky enough to be arrested, but then, fortunately, the prosecutor decides not to file a case often ask if they can have the arrest record sealed and destroyed. After all, an arrest record is a public record. The client may comment that the mere record of the arrest affect child custody issues, adoption eligibility, licensing, insurance premiums, school admissions, credit applications and, most importantly, one’s reputation.Read Article
Conviction Reversed for Conspiracy to Commit Burglary of Junk Cars for Gasoline
The California Supreme Court has defined “building” broadly for purposes of burglary. Some may say that such liberal or loose definitions have led to convictions that were not legally correct. In the case of People v. Pablo Mendoza Chavez, a Kings County matter, Chavez was convicted of many offenses, including conspiracy to commit burglary.Read Article
Restitution Order in Federal Court Improper When Calling for Immediate Payment
Jack Ward was convicted of nine counts of armed bank robbery. He was sentenced to 300 months in prison and ordered to pay $27,885 in restitution to the victims. The federal district court, without considering Ward’s ability to pay, ordered that the restitution payment be made “immediately.” This was impossible for Ward to follow, as he was broke and, once imprisoned, his earnings certainly did not allow “immediate” payment.Read Article
I Lost My DMV Hearing for My DUI - Now What?
If you or a family member receives an adverse ruling from the DMV relating to a DUI charge and you face a suspension of your driver’s license, it is only natural to think of an appeal. This may be a response to a belief that the DMV ignored evidence, misapplied the law or that the effects of a license suspension harm one’s employment, health or schooling.Read Article
Strong Marijuana Smell Does Not Justify Warrantless Search of Hotel Room
On December 10, 2010, security personal at a Los Angeles hotel called police about a reported burglary of a laptop computer and a Blackberry cell phone. Hotel personal believed the suspects were two women staying at the hotel. Police went to the women’s hotel room. At the door, police noticed a “strong smell” of marijuana. Police then knocked on the door and one of the women answered. Police then asked the occupants of the room to exit the room, which they did.Read Article
Eighth Amendment Challenge to Three Strikes Law Fails
A strike, defined as a serious or violent felony, carries with it a significant sentence under California’s “Three Strikes Law” (Penal Code §§ 667 (b) - (j) and 1170.12). A conviction for a second strike usually results in a doubling of the sentence. A conviction for a third strike carries with it an indeterminate sentence of twenty five years to life. This type of sentencing structure is in part designed to protect the public from violent and dangerous career criminals.Read Article
Restitution in Domestic Violence Case Does Not Violate Harvey Rule
Under People v. Harvey (1979) 25 Cal. 3d 754, a defendant who signs a plea bargain allowing a sentencing judge to consider the entire case, including dismissed and charges not filed, waives the right to challenge his sentence. In People v. Ronald Snow, a felony case out of Yolo County, the sentencing judge awarded $44,994.85 in victim restitution for, among other things, dental bills incurred by the victim when Snow knocked loose the victim’s dental crown with a punch and left eye surgery.Read Article
What is a Critical Needs Restricted License?
In the content of a DUI, vandalism, possession of hashish, and other cases involving the suspension of one’s driver’s license, we often hear clients comment, “If they suspend my license, I will lose my job.” Other times, the client says their license is vital to transporting a sick parent to a doctor.Read Article
Mail Fraud Indictment Sustained for Case Involving Commercial Driver’s Licenses
18 U.S.C. § 1341 prohibits the use of the U.S. Mail in furtherance of “any scheme or artifice to defraud.” This statute was enacted in 1872. In 1999, Congress added the words, “or for obtaining money or property by means of false or fraudulent pretenses, representations or promises.”Read Article
Felony Hit and Run Charges Involving Injury or Death Often Depends on Willfulness of Conduct
In our experience with those accused of felony hit and run (Vehicle Code § 20001), the biggest issue is whether our client knew that they were leaving the scene of an accident with an injury. The client often thinks only property damage was the issue or that the other person was at fault. Sometimes, our client is even unaware that there was an accident at all, perhaps because the cars never exchanged paint. The client then explains who else may have been using the car.Read Article
Illegal Use of Disability Placards Can Lead to Far More Serious Charges
We have all seen it. An athletic person, appearing about twenty-five years old, pulls into a parking space reserved for handicapped parking. The driver opens the door of the car and jogs into the store, obviously disabled only in his or her judgment.Read Article
Defenses to Evading a Police Officer Depend Upon the Facts
Anyone who has been charged with evading an officer, a violation of either Vehicle Code § 2800.1 (a misdemeanor) or § 2800.2 (a felony), usually either has a sense of outrage and insistence of innocence or, on the other extreme, cannot stop admitting their guilt. We suspect this is because on television, police chases are common and well understood.Read Article
Consecutive Sentences, Not Concurrent Sentences, Upheld in Forcible Sex Case
A San Joaquin County jury convicted Kesh Maharaj of multiple counts of lewd and lascivious conduct involving the same girl, who was under age 14. One count involved forcible lewd and lascivious conduct (Penal Code § 288 (b)) and three counts involved aggravated sexual assault (Penal Code § 269). In nine counts, he was convicted of lewd and lascivious touching. (Penal Code § 288 (a)).Read Article
Judge Makes Mistake in Sex Offender Registration after Sentencing for Felony Child Endangerment
Defendant Toni Allexy, age 38, was a high school cheer leading coach. She invited a fourteen year old football player from the school to her house and encouraged him to drink alcohol with her. He did so. After getting the victim drunk and becoming, in her description, “beyond drunk,” she took the victim to her computer room, where alone with just him, she drew her initials on his check.Read Article
What is Private Jail?
Our clients who face serving time in county jail often ask about private jail. They may be concerned about being assaulted by another inmate or inmates, or they just wish for a single, private cell where they can sleep without worries. They may have heard about it when first arrested and always ask as if private jail is some type of urban legend that really does not exist.Read Article
Court Rules Change in Petty Theft Limit is Retroactive Turning Certain Grand Theft Conviction into Petty Theft
In 2010, the California Legislature amended Penal Code § 487 to increase the amount of property fitting the definition of petty theft. The amount was of property increased from $400 to $950. Any theft valued at $950 or below is consequently now petty theft; any theft of property with value above $950 is grand theft.Read Article
What is a Wobbler and May a Felony Be Changed to a Misdemeanor?
There are several common offenses that a prosecutor can chose to charge as either a felony or a misdemeanor, depending upon the facts of the case and the defendant’s criminal history. In other words, the charge can “wobble” between a felony and a misdemeanor.Read Article
One or Two Strikes? Appeals Court Says Two Attacks Thirty Minutes Apart
On the evening of July 20, 2010, Harley Paul Finney stabbed Chad Robinson more than ten times. Robinson almost died. During Finney’s trial in San Luis Obispo Superior Court, the jury was unable to reach a unanimous verdict on the attempted murder charge, but did return a guilty verdict for assault with a deadly weapon (Penal Code § 245 (a) (1) with a finding that Finney inflicted great bodily injury on the victim (Penal Code § 12022.7 (a).Read Article
Bail and Can It Be Reduced?
To ensure a defendant’s appearance in court at a future date, law enforcement may set bail as a condition of releasing that defendant from police custody. Bail is a matter of right except in cases punishable by death, probation or parole violations and in certain public safety offenses. It can be paid in cash, personal check, money order or even a traveler’s check. Bail, however, is not excessive merely because a defendant cannot afford it.Read Article
What is the Difference Between a Misdemeanor and a Felony?
Our office often defends clients accused of offense, that can be classified as either a misdemeanor or a felony. Such an offense is known as a “wobbler.” When the District Attorney’s office decides to bring the case as a felony, our office always considers whether and how we can reclassify the case as a misdemeanor under Penal Code § 17 (b).Read Article
What is the Difference Between an Infraction and a Misdemeanor?
Certain offenses, depending upon the circumstances, may be charged as an infraction or a misdemeanor. The most common examples of this are petty theft (Penal Code §§ 484 or 490.1), disturbing the peace (Penal Code § 415) and trespassing (Penal Code § 602).Read Article
Sentencing Alternatives for Military Veterans Under Penal Code § 1170.9
Since 1982, with the enactment of Penal Code § 1170.9, our state legislature has recognized the unique needs of military veterans in dealing with California’s sentencing guidelines. In 1982, our courts were witnessing Vietnam veterans struggling with psychological and chemical dependency problems that manifested themselves in everything from multiple DUI’s, domestic violence, substance abuse and fighting in public.Read Article
What is the “Mouth Alcohol” Defense to DUI?
A fairly rare, but highly effective defense to a charge of driving under the influence (DUI) when the BAC is based only upon a breath test is the “Mouth Alcohol” defense. The basis for this defense is, in a nutshell, “garbage in, garbage out.” In other words, if the breath test assumption that deep lung (alveolar) air only is being tested is wrong, the BAC measured is not an accurate measurement of blood alcohol levels.Read Article
What is a “Rising BAC” Defense to DUI?
A common and often successful defense to a charge of driving under the influence (DUI) is the rising blood alcohol content (BAC) defense. This office finds it is one defense that not only the Department of Motor Vehicles seems to understand, but juries do, too. The gist of this defense is that while one’s BAC may be measured at 0.08 or slightly higher, the BAC of the driver when driving was lower than 0.08 and thus legal, meaning it did not violate Vehicle Code § 23152(b).Read Article
Fifth Amendment Rights Violated When DA Points to Silence as Evidence of Guilt
In early 2007, Richard Tom, while speeding and running a red light, broadsided Lorraine Wong’s vehicle. The impact tragically killed Wong’s eight year old daughter. After holding Tom at the scene for about ninety minutes, during which time he remained silent except to ask if he could walk home, Redwood City Police Officers transported him to the police station.Read Article
Delay of Four Years before Filing First Degree Murder Charges not Sufficiently Prejudicial to Merit Dismissal
A jury convicted John Clyde Abel of first degree murder for the 1991 shooting and robbery of a grocery store owner. The shooting took place in a bank parking lot in the City of Orange. The judge sentenced Abel to death. During a part of the sentencing phase of trial, Abel conceded that he had robbed about twenty people in multiple scenarios over his lifetime that were never prosecuted.Read Article
What Is Split Sentencing?
Since AB109, the measure to realign California’s overcrowded prisons by sending more felons to county jails, split sentencing has become a more attractive option for negotiating plea bargains. While split sentencing has not quite caught on in Los Angeles County as it has in other counties, it may gain popularity as the jails become more and more crowded over the next year. Currently, the majority of split sentences apply to felony sentencing, but it can equally apply to misdemeanors, too.Read Article
What is a Motion for Civil Compromise?
In vandalism, certain theft cases such as shoplifting and embezzlement, and criminal cases involving automobile property damage, a judge may dismiss the case if he or she is satisfied that the victim has been fully compensated for the loss or repair costs and it not desirous of prosecution. In other words, the monetary value of the loss or damage has been settled in a civil manner and the criminal court no longer has any need to be involved.Read Article
Systematic Child Abuse Over Time Supports Aggravated Mayhem Conviction
For six years, Defendant Joseph Robert Horvath and his wife tortured, beat and maimed their adopted daughter, starting when she was nine and ending when she was fifteen. The wife thought her husband was sexually molesting the daughter, so she beat the girl until she confirmed this was so. Then the husband would take over and beat the girl for such an accusation, which was false.Read Article
Double Jeopardy Prevents Conviction for Criminal Threats Involving Rottweiler
The Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution forbids a second trial to allow the prosecution a second, redundant opportunity to supply evidence which it failed to introduce in the first trial. In other words, the prosecution cannot make repeated attempts to convict an individual for an alleged offense if it fails to do so on its original attempt.Read Article
What is a DMV Hearing for a DUI?
Upon being arrested and booked for DUI, one is issued a temporary driver’s license under most circumstances. This temporary license is on pink sheet of paper and, in small print, advises the recipient that unless he or she contacts the DMV to reserve a hearing within ten days of the arrest, the license will be automatically suspended.Read Article
Five Years of PAS (Preliminary Alcohol Screening) Device Records Found Inaccurate in San Francisco
In a major victory for criminal defense attorneys in the San Francisco area, the San Francisco District Attorney’s Office announced this week a joint investigation into the San Francisco Police Department’s use of PAS (preliminary alcohol screening) devices for at least the last five years.Read Article
Conviction by Red Light Camera Upheld on Appeal
Within the last two years, there have been two successful challenges to tickets issued based on “red light camera” photographs and videos for violation of California Vehicle Code § 21413 (failure to stop at a red light).Read Article
Granddaughter Guilty of Financial Elder Abuse through Embezzlement and Moving Grandmother Out of Home
Our office receives numerous phone calls about financial elder abuse, usually involving quit claim deeds of property and / or second mortgages that go unpaid, resulting in a home foreclosure. It is unusual for law enforcement to take action in such cases, as such problems are seen as civil, not criminal, in nature.Read Article
Court Reverses Felony False Impersonation Conviction Involving Use of Birth Certificate
California Penal Code § 529 makes it a crime to use a false identity to create or exploit a written instrument. The statute’s intent is to make it illegal for one to create liability for an impersonated person for a financial or legal obligation. The statute is a “wobbler,” meaning it can be prosecuted as either a felony or a misdemeanor.Read Article
Federal Court Rules Collection of DNA from Felony Arrestee Constitutional
Over the last year, the Ninth Circuit and more than one California Court of Appeal have ruled on the constitutionality of California’s law directing police to collect DNA from an arrestee. In a First Appellate District Court of Appeal decision in California, People v. Buza (2011 DJDAR 11741), the court reversed Buza’s misdemeanor conviction for refusing to provide a DNA sample.Read Article
Court Vacates Sentence of 150 Years to Life by Dismissing Three Prior Strikes
California’s Three Strikes law contains sentencing requirements that add time to one’s sentence if the individual has a prior conviction for a “strike offense.” “Strike offenses” are generally described as serious or violent felonies, such as murder, rape, armed robbery and arson, but can include other offenses that seem, by comparison, not too serious or violent. This often results in sentences one court described as “arbitrary, capricious and patently absurd.”Read Article
Conviction Reversed for Burglary by Acetylene Torch at Best Buy
In the early morning hours of June 3, 2008, a silent alarm was triggered at a Murietta Best Buy. Police arrived and found “a large hole cut in a side steel door leading into the store that appeared to have been made by a torch.” Inside the store, police found a locked camera cabinet that had been forced open. A store security video showed a man in a hooded sweatshirt taking video recorders and cameras worth approximately $24,600 from the cabinet.Read Article
Immigration Consequences of a Conviction for a Drug Offense
With the exception of limited marijuana offenses, legal aliens are subject to deportation once convicted of any drug (or narcotic) crime in California. 8 U.S.C. § 1227(a)(2)(B). “Any” means simple possession of methamphetamine, cocaine, ecstasy (“X”), phencyclidine (“PCP”), codeine, hydrocodone (“Vicodin”), ketamine (“Special K”), gamma-hydroxybutyric acid (“GHB”), heroin, peyote, and many other drugs, including prescription drugs without a valid prescription.Read Article
Immigration Consequences a Conviction for Domestic Violence
Our office often represents folks accused of domestic violence and who are not U.S. citizens. A big issue is consequently the effect of a conviction on their ability to legally remain in the United States and return to the United States if they leave for any reason.Read Article
What Happens if Police Say I Refused a Breath or Blood Test?
Our office often receives phone calls from folks who are arrested for DUI and are told by police that they must submit to a breath or blood test of their blood alcohol level. In perhaps five to ten percent of such cases, our clients refuse to give such a sample. They often ask, “now what happens?”Read Article
Street Terrorism Sentence Stricken When Defendant Already Punished for Underlying Arson and Criminal Threats
Michael Hong Louie and Soriyaa Ek were both validated gang members. They were convicted of arson, criminal threats and street terrorism. The underlying facts are that Louie and Ek, in January of 2007, allegedly set fire to a Stockton, California, apartment of a woman who repeatedly reported gang activity in her neighborhood. Both defendants were also charged with attempted murder, but the jury returned a not guilty verdict on the attempted murder charge.Read Article
Conviction Related to Sexting Properly Required Sex Offender Registration
California Penal Code § 647.6(a)(1) makes it a crime to sexually annoy or molest any child under 18. No touching is required, but does require that a “normal person would unhesitatingly be irritated by” defendant’s conduct. The conduct must be motivated by “an unnatural or abnormal sexual interest or intent with respect to children.” Upon conviction for violating this statute, one must register for remainder of one’s life as a sex offender under Penal Code § 290.Read Article
Ticket Thrown Out for Running Red Light Based on Red Light Camera
Our office receives many calls from clients who receive tickets for running red lights when the basis is a photograph from a camera at the intersection. Usually, the fine is pretty steep, approaching $500, not to mention the traffic school fees that follow.Read Article
Conviction for Second Degree Murder by Child Neglect Upheld
A Riverside County jury convicted Gregory Lee Latham and his wife of second degree murder of their daughter, age 17, for failing to obtain medical treatment for her type 1 diabetes, which resulted in her death. Gregory was sentenced to seventeen years in prison. His wife was sentenced to fifteen years in prison. Not only did the jury convict both Lathams of violating Penal Code § 187(a) (Second Degree Murder), but the jury also convicted each of child endangerment (Penal Code § 273a(a).Read Article
Assembly Bill 327– The Fix for Unfairness in California’s Three Strikes Law?
California’s Three Strikes law is often criticized for its “one size fits all” approach in sentencing a defendant with two or more prior strike convictions. Strikes include, but are not limited to, such offenses as assault with a deadly weapon or with force likely to produce great bodily injury (P.C. § 245(a)(1)).Read Article
License Suspended at DMV DUI Hearing Despite Improper Calibration of Breath Test Device
Whenever a client of our office is alleged to be driving while under the influence, we are keen to verify if the breath or blood test is accurate. If the blood alcohol content is calculated by a breath test, for example, it is fundamental that the breath test machine is properly calibrated.Read Article
Second Probation Violation Hearing Improper after First Hearing Ended
A common situation our clients on probation face is being arrested for a new offense. They often remark that they are just unlucky. The client then faces not only a new criminal case, but a probation violation case that could land the client in jail or prison for significant time. This is especially so because the burden of proof is lower for a probation violation.Read Article
Immigration Consequences of a Conviction for DUI
Our clients who are not United States citizens often nervously ask “will a conviction for DUI cause me to be deported?” They also sometimes ask, “if I leave the United States and try to return to the U.S. after the conviction, will I be turned away?” The usual answer we give is, “well, generally speaking, no.”Read Article
Judge May Prohibit Medical Marijuana Use as Term of Probation.
Steven Hughes was convicted of cultivating marijuana (a violation of California Health & Safety Code § 11358), possession of marijuana for sale (a violation of California Health & Safety Code § 11359), and transportation of less than 28.5 grams of marijuana (a violation of California Health & Safety Code § 11360).Read Article
What is a Preliminary Hearing?
In every felony case, a preliminary hearing is required. The hearing’s purpose is to test the sufficiency of the evidence to determine whether the case merits continued attention. The accused can waive such a hearing and give up his or her right to such a hearing, but this is rarely done. If the evidence is deemed insufficient, the case is dismissed.Read Article
Sentence Set Aside When Federal Judge Makes Mistake
Chino prison guard Robert McGowan was sentenced to four years and three months in prison for violations of federal laws prohibiting a prison guard from depriving an inmate of his constitutional right to be free of cruel and unusual punishment. The conduct at issue was a 2007 incident where McGowan allegedly pushed two hand-cuffed and shackled prisoners out of a truck, causing them to suffer bruises and cuts.Read Article
Did the Prosecution Violate Your Sixth Amendment Right to a Speedy Trial?
Our office frequently receives calls about someone who was arrested, but never told to go to court. In releasing the person, police may have advised the person that a notice would be mailed telling them of a court date, but the notice never arrived. Other times, there is an incident and the person is not even arrested.Read Article
Police Use of GPS on Drug Dealer’s Car Without a Warrant Held Improper; Evidence From it Thrown Out
On Monday, January 23, 2012, the U.S. Supreme Court unanimously ruled that evidence gathered by police using a GPS fastened to a drug dealer’s car without a warrant was improperly obtained. With Justice Antonia Scalia writing the majority opinion, the Court ruled that the act of attaching the GPS was a warrantless property invasion, so the evidence derived from it showing defendant’s whereabouts for twenty-eight straight days was inadmissible.Read Article
Drug Diversion Programs – Prop 36 Versus PC 1000
If you or a loved one face charges for possession of an illegal drug, a common response is, “prison will not solve the problem; treatment and education would be better.” Our legislature in Sacramento has recognized this, too, and has passed provisions that offer a drug offender a chance to “divert” from the criminal court system to drug rehabilitation programs in lieu of incarceration.Read Article
Plea Bargaining by the Judge is Illegal – Not an Indicated Sentence
It is not uncommon for our clients to encounter a prosecutor who seems to stop plea bargaining, or plea bargain at all in the face of new information. The prosecutor may not seem to read the police report or, in the case of a DUI for example, to begin and end his or her analysis with only reading the blood alcohol content. The prosecutor may also seem to take a zealous personal interest in punishment of our client that seems inappropriate.Read Article
Conviction Reversed for District Attorney Withholding Evidence
On January 10, 2012, the United States Supreme Court reversed a murder conviction in Smith v. Cain (2012 DJDAR 296). The opinion held that a Louisiana district attorney violated his duty to produce material favorable to the defense and material to defendant’s guilty or punishment, as set out in Brady v. Maryland (1963) 373 U.S. 83.Read Article
Why Is a “Wet Reckless” Better Than a DUI?
Anyone who has personally experienced being charged with DUI or has a friend or family member who has faced such charges in California may have heard about a “wet reckless.” The advantages and disadvantages of a plea to a “wet” often misunderstood. The term “wet reckless” refers to a plea bargained charge of violating California Vehicle Code § 23103 pursuant to § 23103.5.Read Article
Is Expungement Worth It?
In today’s economic hard times, our firm receives numerous inquiries about clearing one’s criminal record. The concern expressed is almost always that a prospective employer may reject a job applicant who has a criminal record, or pass over an existing employee for a promotion or pay raise on the same basis.Read Article
If You Receive Miranda Warnings, Your Talking and Subsequent Silence Can Be Used Against You
Anyone who has watched much television is familiar with Miranda warnings, which remind a suspect of his Fifth Amendment right to remain silent: 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 speak to an attorney, and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided to you at government expense.Read Article
Court Makes Mistake in Sentencing Mentally Disordered Offender to Treatment
Kelvin Harrison was convicted in San Bernardino County of battery with serious bodily injury. He was sentenced to prison for two years. When the crime occurred in 2008 both he and the victim were homeless. Harrison attacked another man with a steel pipe because he found a bag of grapes left by the victim where he normally slept. The grapes were allegedly filled with blood, which Harrison interpreted as an omen that the victim intended to harm him. Harrison then attacked the victim with the pipe.Read Article
Ten New Laws to Know for 2012
It is January 1, 2012 and a host of new laws become effective today. While some of these laws may not affect you, others may, so it good to be aware of how the laws have changed. There are dozens of new laws, but our focus in this article in limited to ten that involve possible criminal cases.Read Article
If You Receive Miranda Warnings, Your Talking and Subsequent Silence to Certain Questions
Anyone who has watched much television is familiar with Miranda warnings, which remind a suspect of his Fifth Amendment right to remain silent.Read Article
Restitution Order Can Apply to One Who Receives Stolen Property, but Does Not Participate in Burglary
It is a common misperception that if one receives stolen property, such as a credit card, one can use it without incurring criminal liability if he or she has a good faith belief that the credit card was a gift. After all, the recipient of the card did not steal it from anyone. This is not always so, as the recent decision in People v. Holmberg from Northern California shows (People v. Jon Holmberg (2011 DJDAR 7665).Read Article
Judge Makes Mistake in Allowing Letting Jury Hear Drug Cartel Evidence
Feliciano Covarrubias was arrested at about 3:00 a.m. on May 6, 2010 at the San Ysidro Port of Entry coming from Mexico to California with 193 pounds of marijuana hidden in his Ford F250. A dog specially designed to detect narcotics smelled the marijuana.Read Article
Insufficient Affidavit for Warrant Does Not Mean Search is Always Invalid
The search of a home is always a hot issue, especially when the search uncovers items that could lead to years in prison. The Fourth Amendment, made applicable to each state, provides that “no warrants shall issue, but upon probable cause, supported by oath or affirmation, particularly describing the place to be searched, and the persons or things to be seized.”Read Article
Consenting to One Vehicle Search Can Mean Consenting to Multiple Searches
The general rule concerning any search without a warrant is that the search is presumed illegal. It is a liberty invasion. Once a defendant shows that the search was conducted without a warrant, the burden shifts to the prosecution to show an exception to the general rule applies.Read Article
Court Violates Murder Defendant’s Right to Cross-Examine Expert by Admitting Opinion
The Sixth Amendment to the U.S. Constitution, made applicable to each of the states through the Fourteenth Amendment, contains what is commonly known as the “Confrontation Clause.”Read Article
What is an Arraignment?
An arraignment is a criminal proceeding where the defendant is called before a court, informed of the charges, and asked to enter a plea.Read Article
Conviction for Murder of Cop Reconsidered for DA Withholding Evidence
Jesse Gonzalez was convicted of first degree murder with special circumstances for killing a police officer on duty. The conviction arose after he used a shotgun when Los Angeles Sheriff’s Department Deputies kicked down his front door while serving a search warrant.Read Article
The Police Stole My Marijuana- Will My Homeowner’s Insurance Pay Me for My Loss?
Greg Bennett had a homeowner’s policy through State Farm that insured him for losses arising from theft of his property at his residence. The policy also covered theft of trees, shrubs and plants on the property. The police did not define “theft.”Read Article
A “No Contest” Plea to New Criminal Charges Can Constitute a Probation Violation
A “no contest” plea is distinguishable from a “guilty” plea. Once who pleas “no contest” does not admit factual guilt, although it allows him to be punished as if guilty to take advantage of a plea bargain.Read Article
Conspiracy Liability Very Broad for Robbery – Beware
Under California law, a person involved in a crime is either a principal or an accessory. Cases decided by our Supreme Court have included conspirators as principals, as conspirators fall within the “all persons concerned” language of Penal Code § 31, which defines who is a principal.Read Article
Conviction for Accessory to Shoplifting and Burglary Has Lesson for Those Defending Such Charges
Raymond Mooney and his girlfriend, Janna Lorette, drove together to a San Bernardino Stater Brothers grocery store. Mooney and his two small children entered first. About twenty seconds later, Ms. Lorette entered with an empty purse.Read Article
California Federal Court Errs in Imposing Residency Restriction on Man Who Has Illegal Sex Overseas
In both state and federal court, it is common for courts to impose probation conditions that prohibit sex offenders from living near certain areas that might cause the offender to relapse and endanger the public. In sex offender cases involving an adult and a child victim, courts can impose rather tough residency requirements.Read Article
Suspect’s Fifth Amendment Rights not Violated when He Volunteered Statements about His Killing Another
Thomas Kemp kidnapped Hector Juarez, used Juarez’s ATM card to withdraw $200 from Juarez’s bank account and then used a .380 handgun to shoot Juarez twice in the head, killing him. Kemp then made two more attempts to use Juarez’s ATM card, but could not remember the PIN number.Read Article
Cocaine Courier’s Sentence Not Reduced Due to Large Quantity Seized
Under Federal sentencing guidelines, a drug courier is often eligible for a sentencing reduction due to his or her minor role and limited involvement. The courier may not be aware of even the type of drug transported, the sender’s name or the actual recipient of the delivery.Read Article
Drug Evidence Suppressed When Police Improperly Stop Vehicle
La Habra police officer Nick Wilson observed Defendant Paul Carmona make a right turn without using his turn signals. Wilson was about 40 yards away and traveling in the opposite direction, so he was unaffected by Carmona’s turn. There was no other traffic nearby. Wilson, however, believed the turn violated California Vehicle Code § 22107 and stopped Carmona.Read Article
Co-Owner Of Computer Can Consent To Search Of Computer That Incriminated Owner Of Child Pornography Charges
Kevin Stanley and his girlfriend, Tiana Stockbridge, lived together until the two broke up in 2004. While they were together, they co-owned a computer, which they each used. Stanley had a password to his “half” of the computer and his files.Read Article
Lifetime Requirement to Register as Sex Offender not Eliminated when Felony Conviction Reduced to Misdemeanor
Over about a one month period in late 2006, Defendant Brian Roger Kennedy engaged in a sexually explicit Internet conversation with an undercover San Jose police officer who Kennedy believed was 13 years old and named “Tiffany.” Kennedy sent “Tiffany” a picture of his erect penis, as well as videos and webcams of himself masturbating. He also communicated with her via instant messaging and e-mail.Read Article
Court Rules that Driving Includes Being Stopped at Red Light while Using Cell Phone
On December 28, 2009, a Richmond, California motorcycle officer pulled up at a red light alongside Mr. Carl Nelson. The officer watched Nelson, who was sitting behind the wheel of his car, open his flip-style cell phone, dial a number and put the phone to his ear while holding the phone in his left hand.Read Article
In Counterfeit DVD and CD Case, Victim Cannot Recover Potential Economic Loss
California Penal Code § 1202.4(r) governs the method for calculating restitution in fraudulent DVD and CD cases.Read Article
Multiple Convictions for Embezzlement (Grand Theft) from Employer Proper When Takings Distinguishable
Joyce Jaska was the secretary and treasurer of Barstow Truck Parts and Equipment, Inc., a family business that had survived since the 1950’s. The president of the company fully trusted Jaska, who did the company’s accounting.Read Article
Life in Prison Without Possibility of Parole Unconstitutional for Juvenile Non Homicide Offender
In 2010, citing the Eight Amendment’s bar against cruel and unusual punishment, the United States Supreme Court determined that the immature and potentially malleable nature of juveniles precludes a judgment that a non homicide juvenile offender will never to be fit to reenter society (Graham v. Florida (2010) __ U.S. __, 130 S.Ct. 2011).Read Article
Pandering Conviction Upheld Even When Victim is Already a Prostitute
While it may seem counterintuitive to some, one can be convicted of pandering in violation of California Penal Code § 266i(a)(2) even when the “victim” is already a prostitute, or at least represents herself to be one. Indeed, section 266i(a)(2) reads: Any person who by promises, threats, violence, or by any device or scheme, causes, induces, persuades or encourages another to become a prostitute is guilty of pandering.Read Article
When an Arrestee is Detained, it is Unconstitutional to Search a Car Without a Warrant
Under most circumstances of an arrest, police are able to validly search a vehicle because the vehicle is considered an area within the arrestee’s immediate control. Officer safety and evidence preservation are implicated in such situations. Such a search is usually limited to the passenger compartment.Read Article
Conviction Overturned for Lewd Acts Upon a Child
In 2010, Lee Cottone was convicted in Orange County of four counts of committing a lewd act upon a child under the age of fourteen (California Penal Code § 288(a)).Read Article
Is Being Unconscious While DUI a Defense to Second Degree Murder Charge? Appellate Court Says No
On Friday evening, February 22, 2008, Elijah Ferguson crashed into the rear of a car stopped at a red light and carrying Michael and Grace Stein. The accident happened at the corner of MacArthur and Jamboree Boulevards. Post-accident analysis of Ferguson’s car revealed he was traveling 75 miles per hour and accelerating, only to decelerate 0.1 second before impact. Ferguson’s BAC, taken two hours after the crash, was 0.12.Read Article
Conviction Overturned for Felon in Possession of Firearm – Constructive Possession Not Proven
In May, 2007, Costa Mesa Police learned that Reno Sifuentes, a convicted felon, was renting a room in a Santa Ana motel. The motel was notorious for drug dealing and prostitution on its premises. Since police knew there was an “outstanding no bail” parole arrest warrant, police requested and received a master key from the motel to Sifuentes’ room.Read Article
When An Arrestee is Detained, it is Unconstitutional to Search a Car Without a Warrant
Under most circumstances of an arrest, police are able to validly search a vehicle because the vehicle is considered an area within the arrestee’s immediate control. Officer safety and evidence preservation are implicated in such situations. Such a search is usually limited to the passenger compartment.Read Article
Arrested and Released for DUI? Think Again – The Police May Have Your Saliva DNA to Legally Re-arrest You
Troy Thomas was a suspect in six unsolved residential burglaries from 2006 to 2008. In five of the burglaries, genetic material from the suspect was collected at the home. In the sixth burglary, an eyewitness identified Thomas as the burglar.Read Article
Warrantless Search of FedEx Package Containing Marijuana Held Improper and Case Dismissed
Kewhan Robey put 450 grams of marijuana in a FedEx box and attempted to mail it from California to Illinois. A FedEx employee noticed “a strong odor” of marijuana, however, held the package back and called the Santa Maria Police Department.Read Article
Underage DUI Is Not Similar to a Juvenile Offense for Sentencing in a Later Drug Case
Baldemar Landa was sentenced in U.S. District Court to a minimum term of five years in state prison for violating the federal Controlled Substances Act. He pled guilty to possession of cocaine with intent to sell, as well as two other related charges.Read Article
Every Question About an I.I.D. that You had, but were Scared to Ask
We at Greg Hill & Associates understand that an ignition interlock device is a mysterious and often misunderstood device. The requirements surrounding its installation, use and maintenance are also clouded in myths and many anecdotal inaccuracies. Therefore, to hopefully clear up the confusion once and for all, we prepared the following memorandum.Read Article
Criminal Liability for Animal Cruelty Was Vague Until Now
Under California Penal Code § 597, one can be charged with either felony or misdemeanor animal cruelty or neglect. There is no standard jury instruction on this offense, so in each trial, counsel must devise their own instruction, which can lead to confusion. Nowhere was this epitomized more clearly than in the case of Manuchehr Rizati.Read Article
Police Sniff Dog Found Reliable to Court Despite Signaling the Presence of Narcotics that Did Not Exist
Darla Stillwell and Robin Briggs were stopped by Marysville Police in May, 2009 while driving through downtown Marysville California. The stated reason for the stop was that the rear license plate on their pickup truck was blocked by the bumper.Read Article
Beware: Living with a Prostitute Can Be Illegal and Land You in Prison
In Solano County, California, Defendant Sean ali Grant was convicted of pimping under Penal Code § 266h(a), as well as assault with a deadly weapon (§ 245(a)(1), corporal injury to a cohabitant (§ 273.5(a)) and false imprisonment by violence (§ 236). He was sentenced to five years in state prison.Read Article
Prison Sentence? It May Be Served in County Jail under a New California Law
A prison sentence often not only means a long period of incarceration, but also a long distance away from loved ones. While California does have thirty-three prisons statewide, the convenience of family visits is not considered in determining where one will serve their prison sentence.Read Article
Store Security Video Evidence, Without Any In-Person Identification, Can Be Used to Convict You
Over a twenty-one month period in 2008 and 2009, Defendant Randy Alan Larkins allegedly broke into over a dozen gym lockers at Southern California Bally’s, 24 Hour Fitness, and L.A. Fitness. When arrested, he was found in possession of twelve membership cards that were not issued to him for Bally’s and 24 Hour Fitness, mail that was not his own, driver’s licenses that were not his and dozens of credit cards that were not his own.Read Article
If Visiting One in Jail, Be Careful What You Bring With You!
On September 29, 2011,the Second District Court of Appeals upheld the conviction of Brian Boulter for possession of a controlled substance, among other charges, after he was arrested while visiting a friend at the Men’s Central Jail in Los Angeles.Read Article
Federal Conviction of Importing Marijuana Overturned for Improper Use of Rap Sheet
Brad Ray Santini was convicted of importing marijuana after an inspection of his vehicle at the Mexico-U.S. border found twenty-eight kilograms in his rear seat and spare tire. This was allegedly in violation of 21 U.S.C. §§ 952 and 960. He was also charged with possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1).Read Article
You Can Be Arrested on a Warrantless Search if Police Are Searching for a Friend but Find Reason to Arrest You
The author explains the rights of recently arrested folks who believe their constitutional rights have been violated. There are many contexts of this happening, but one common fact pattern is when police conduct an unannounced probation or parole search (often called a raid).Read Article
Your Cell Phone May Incriminate You of More Serious Offenses in a Traffic Stop
In today’s world, the reality is that cell phones function in many ways beyond devices to talk to one another. We send e-mails, texts, leave voicemails, post messages to Facebook, watch videos, sent videos, etc. The cell phone, in other words, is being used in many ways beyond the traditional phone. It is a mini-computer of our private lives, with call histories, contact lists and photographs.Read Article
OC's Standard Sex Offender Probation Conditions, Imposed in Hundreds of Cases since 03, Are Unconstitutional
In the Santa Ana courtroom of Judge David Thompson, Defendant John Moses was convicted of committing a lewd act on a child under fourteen years of age (Penal Code § 288(a). The jury found that Defendant, 24 years old, had engaged in substantial sexual conduct with 13 year old C.C., who he met via a website called VampireFreaks.Read Article
Appeals Court Overturns Alhambra Conviction for Possession of Ecstasy Pills
Ecstasy is an increasingly popular recreational drug. It is also a relatively new drug that our legislature has been slow to criminalize. We at Greg Hill & Associates remember when it first made its way to the club scene in the late 1980’s and some of our clients were amazed that it was not illegal at that time.Read Article
DNA From An Arrestee Is Unconstitutional
Citing the Fourth Amendment’s right against an unreasonable search and seizure, the First District Court of Appeal in California ruled that collecting DNA samples from someone who is presumed innocent when arrested is unconstitutional.Read Article
Long Beach Court Convicts Tenant of Grand Theft for Breaching Rental Contract
Landlords often complain that when a renter fails to pay rent, there is no way to replace the loss if the tenant is insolvent. After all, one cannot turn back time, replace the tenant with a paying tenant and then “catch up” for the lost rent. The landlord is thus permanently deprived of the rent.Read Article
Is an Endurance Athlete’s Fitness a Disadvantage in a DUI Breath Test?
On July 5, 2011, a decision was reached in People v. Terry Vangelder (2011 DJDAR 9949). The ruling seems to afford a defendant with large lung capacity and a low hematocrit the right to introduce evidence of these characteristics to show his blood alcohol content may be significantly different (lower) than what a breath machine calculates in a roadside DUI test.Read Article
U.S. Supreme Court Recently Declining to Create a Forensic Evidence Hearsay Exception
In California, if one is arrested for DUI and given a blood test, the blood is tested at a local facility. The laboratory creates a report, wherein an employee of the laboratory certifies that the blood was tested according to certain protocol. The report is specifically created to serve as evidence in a criminal prosecution.Read Article
Is a Statute of Limitations Flexible? A Recent Sexual Abuse Case Says It Is
Sexual abuse cases are highly emotional cases for not only the defendant, but the victim, too. Often, evidence of sexual abuse or a single act is kept secret by a victim for years because the victim does not want to relive the event or events in describing them to law enforcement.Read Article