California is the first state to announce that it will ban grand juries in the preliminary determination on whether a law enforcement office should face criminal charges after killing someone in the line of duty. The reasoning behind the ban, which goes into effect next year, is to end public suspicion fostered by the secrecy of the grand jury process. The new law only affects criminal hearings on matters in which a police officer has killed a person in the line of duty.

In California, a grand jury is composed of a panel of citizens from each county, who serve for a set period of time. Each California county selects and empanels grand juries according to that county’s rules and grand juries can hear both criminal and civil matters. In criminal matters, a grand jury hears evidence and testimony presented by the prosecution and then decides whether there is enough evidence to indict.

This process is different from the more common form of criminal prosecution in California wherein the district attorney files a complaint against the person accused of the crime and following that, a judge hears the evidence in a preliminary hearing. While the prosecutor presents the evidence, a defense attorney is present to represent the person charged and can cross-examine witnesses. The defense attorney is also able to argue to the court that the evidence is not sufficient to “bind over” the defendant for trial. The judge determines whether the evidence tends towards a reasonable suspicion that the person (or persons) committed the crime. If the judge finds the evidence sufficient, the prosecutor will then file the charging document. There are some variations on this process, but this is the general scheme.

Unlike preliminary hearings, grand jury proceedings are held in secret before a person is charged with the crime the grand jury is considering. While grand jury proceedings are supposed to be objective, only the prosecution presents the evidence; there is no defense attorney present. Often this does not go well for the person accused of the crime as there is no defense attorney present to cross-examine the prosecution’s witnesses. Truth is, the prosecution would not be presenting the evidence before the grand jury if it did not want to indict. And while the prosecution is obligated to present exculpatory evidence, that doesn’t always happen and even if it does, the evidence is presented from the prosecutor’s point of view.

Why do grand juries exist? Grand juries are often empanelled to hear high profile cases, such as those involving public figures or when the prosecution wants to keep the case out of the public eye until such time as an indictment is filed. In the case of police shootings, a grand jury keeps the high profile case away from public scrutiny until, and unless, the grand jury decides there is enough evidence for the prosecutor to indict.

But that will change in California in 2016. After the many high-profile police shootings across this country, the public has become very suspicious since one grand jury after another has failed to find evidence sufficient to indict. Not only is the evidence hearing held in secret but the record and transcripts of the grand jury hearing are sealed and not made available to the public. While grand juries are often accused of “rubber stamping” the prosecution, indicting persons on evidence presented only by the prosecution, the public is suspicious when police officers are not indicted following the grand jury hearing.

In order to avoid the impression that the prosecution is protecting the police, hearings on charges that a California police officer violated the law in a fatal on-duty shooting will now proceed in a preliminary hearing where the testimony is public record. This does not mean that every police shooting fatality will end in a trial; first the prosecution must decide whether to file charges and then a judge must decide whether the evidence supports the need for a trial. But the new law is intended to end the air of suspicion around the secret grand jury hearings on police shootings and the speculation that the prosecution is protecting police officers from criminal charges.

The Sex Predator Next Door

In 1996, with the federal enactment of “Megan’s Law”, California began disseminating identifying information about sex offenders on CD-ROM on a monthly basis to all sheriff and police departments throughout the state. This information was made available to the public. Since then, the information available to the public has expanded to include information about individuals who have been convicted of a variety of sex crimes against both adults and children and is available to all via the Internet.

Since Megan’s Law was enacted, public awareness of sex offenders has increased and with that awareness has come more laws and restrictions on individuals convicted of sex crimes. In 2006, California voters enacted Proposition 83, known as “Jessica’s Law”, which placed mandatory residency restrictions on registered sex offenders. While it is certainly in the public’s interest to be protected from violent sexual predators, Jessica’s Law, which placed onerous restrictions on where a sex registrant can live, coupled with the readily available information to the public, created a class of homeless undesirables. The California Supreme Court noted that sex offenders registered as transient nearly tripled from 2,050 in 2007 (just after Jessica’s Law was passed) to 6,012 in 2011.[1]

Recently, the California Supreme Court[2] held that the blanket prohibitions regarding where registered sex offenders can live are unconstitutional. The Supreme Court decision was brought by persons affected who lived in San Diego and while technically the decision applied only to San Diego County, the decision will have wide-ranging effects across the state.

The Supreme Court found not only that the residency restrictions infringe upon the registrant’s basic constitutional rights but also that the “harsh and severe restrictions” on registrant’s residency rights have the perverse effect of making it more difficult to advance the purpose of the goal of protecting children from sexual predators. Registrants who are forced to be homeless or transient because they cannot find suitable housing given the residency restrictions placed upon them are harder to monitor and track down. In effect, this makes it more difficult to enforce the sexual predator laws and places the public at greater risk.

And while sometimes the concern is justified, there has been an alarming rise in incidences of ostracizing individuals who are publically listed as sex offenders. Often parents are certain that the neighbor they find listed as a sex offender is an immediate threat to their children. This is just not always true and the Supreme Court decision addressed this, making residency restrictions particularized to each registrant. The Supreme Court decision gives a brief history of the petitioners who brought the case before the Court:

  • Among the petitioners was a man suffering from multiple illnesses including throat cancer, AIDS and diabetes who could not live with a relative who is a health care professional because that relative resided in an area restricted to him. This petitioner is a registered sex offender because he was convicted of the sexual assault of a woman in Arizona in 1991. Since that conviction, he was never convicted of another sex crime.
  • Another petitioner convicted of only one sex crime is required to register as a result of his 1989 conviction on one misdemeanor count of sexual battery upon an adult woman.
  • Yet another petitioner is required to register because of only one sex offense committed in 1981, when the petitioner was 15 years old.

As these histories demonstrate, some individuals are labeled as sex offender s for crimes that don’t necessarily indicate they are a persistent danger to the public. The Supreme Court’s decision now allows local authorities to apply reasonable residency restrictions as demanded by the particulars of each case.

[1]   People v. Mosley (2015) 60 Cal.4th 1044, 1080

[2]  In re Taylor (2015) 60 Cal.4th 1019


Facebook, Instagram, selfies—we live in an age of instantaneous electronic communication. The teens of today share the details of their lives via social media; they seem to spend much of their time snapping photos to share and conversing by text message. But some teens go beyond sharing the everyday details of their lives—they share the intimate details of their lives or the lives of others by engaging in what’s commonly called “sexting”. Sexting is the sending of a nude or revealing photo of oneself or of another person to someone via cell phone text messaging.

Certainly teen sexting is a cause for concern to parents and often ends up causing the teens involved a lot of embarrassment, but the consequences of teen sexting can be far worse than an angry parent and teenage embarrassment. While many states have laws that specifically address teen sexting, California does not. In the State of California, a teen who is caught sexting or, even simply possessing a sext message on his or her phone may face charges under the California sex offense statutes.

It is illegal in California to produce, possess or distribute “obscene matter[1]” of a child under the age of 18. (Pen. Code §311.1, 311.2 and 311.3). Violation of this law applies to any obscene image of a child, whether it’s a hard copy or an electronic image. When a text message depicts obscene images of a minor under the age of 18, the person who takes the photo, sends it as a text, or just simply possesses the text[2] can be prosecuted under the child pornography statute. The law applies to minors as well as adults.

Often teen sexting involves the texting of a self-image to a girlfriend or boyfriend; sometimes that image is forwarded to other teens; occasionally a sexting rings begins where a sexual image of another teen is shared between a few or many via text message. ­­­­­­­­­­­­­­­­­ Whenever an obscene image of a person under the age of 18 is shared, whether it’s only with one other person or with many, it is a violation of Penal Code section 311.

A conviction on Penal Code section 311 can have severe consequences. A violation of this statute may be charged as a misdemeanor or a felony. But the most serious consequence is that a conviction under this statute can subject the violator to the state sex offender registration requirement. As a practical matter, most teens caught sexting will not face this extreme consequence, but he or she might very well still have to face a judge, with the likely outcome of being required to complete counseling, education and/or community service.

However, if the teen is over 18 and the sexual image is of a person under 18, he or she is much more likely to face the full wrath of Penal Code section 311. A good example is when two high school seniors, one 17 years old and one 18 years old, are in a relationship. The 17 year old texts a nude photo of him or herself to the 18 year old. The 18 year old is then caught with the text on his or her phone. The Court must treat the 18 year old as an adult and the district attorney’s office is likely to go after the 18 year old in the same way that it would in any case where an adult possesses child pornography.

But what if the text message depicts a sexual image of person over the age of 18? That image is no longer child pornography and if shared among adults, it is not illegal. However, if it is sent to a person under the age of 18, is a violation of California Penal Code section 288.2, a statute prohibiting lewd acts with a child. A conviction under this statute carries a severe penalty as it mandates a lifetime registration as a sexual predator. Imagine the example in the previous paragraph, but this time the 18 year old texts a sexual image of him or herself to the 17 year old. That text message could potentially ruin the 18-year-old’s life!

The best advice to your child is: “Don’t sext and if anyone sends you a sext message, delete it immediately.” The best preventative is to educate your child to respect him or herself and others. Teens are often immature and impulsive and even good kids sometimes engage in bad behavior. If your child is arrested for sexting, don’t take it lightly because it can result in serious consequences. It is important to consult with a criminal defense attorney with experience in juvenile defense who can advocate for your child. In most sexting cases, an effective juvenile defense attorney can work with the prosecution to ensure that your child does not end up with a sex offense conviction on his or her record.


[1] “Obscene matter” means matter, taken as a whole, that to the average person, applying contemporary statewide standards, appeals to the prurient interest, that, taken as a whole, depicts or describes sexual conduct in a patently offensive way, and that, taken as a whole, lacks serious literary, artistic, political, or scientific value. (Pen. Code §311(a))

[2] Assuming the receiver of the sext has stored the image on his or her phone and did not discard it upon receiving it.


A California arrest warrant authorizes law enforcement to arrest and apprehend you if you are suspected of committing a crime outside of the presence of an officer.

Judges issue arrest warrants based upon the evidence presented to them by an officer or District Attorney. Also, an arrest warrant can be issued following a grand jury indictment. In order to be lawful, a California arrest warrant must include the name of the defendant, the accused crime, the time of issuance, the county of issuance, the signature and title of the judge, and lastly, the name of the court.

Once a warrant is issued it is important to know the repercussions that occur before an arrest is made. In California, if there is a warrant out for your arrest you may lose some freedoms in order to prevent your sudden exodus from the local authorities. From small misdemeanors to serious felonies, the law is consistent as to how a warrant’s prohibitive measures function. If there is any warrant issued in your name these are 3 things you need to know:

1. You Cannot Drive

You might have to find an alternate mode of transportation when a warrant is out for your arrest. If any warrant for your arrest is issued, the court is required to promptly inform the Department of Motor Vehicles. The DMV will suspend your driver’s license until you have proved to the DMV, with the proper paperwork, that the warrant has been nullified.

2. You Cannot Fly (Even Within State Lines)

If a warrant is out for your arrest, you may not be able to travel by plane. Basic airline security protocol involves checking databases for any outstanding warrants amongst their passenger lists. If you have an outstanding warrant, your name should come up in the database which will then prohibit you from boarding your plane on any domestic flight. As for International flights, if you have an outstanding warrant, you will not clear the background check that occurs when you apply for a visa, or the background check that occurs when you attempt to enter the country with your passport. In most situations, if a warrant for your arrest is discovered while you are attempting to board a plane, you will be arrested immediately.

An important note regarding leaving the state of California is your knowledge of the issuance of the warrant:

a) If you are conscious of a warrant out for your arrest, and you flee, you will be held accountable as a fugitive from the law and will be subject to extradition back to California. 

b) However, if you are not aware of the existence of your warrant, you may not be considered a fugitive, and this will alter the terms in which you are brought back to California to face your pending charges.

3. The Police Do Not Need an Actual Copy of the Arrest Warrant to Arrest You

It should be noted that there is no requirement that the officers executing the warrant have an actual copy of it, as long as they can prove that they were legally informed about its existence. An instance where an officer wouldn’t have a copy of the warrant typically occurs when an officer stops you for a traffic violation and, after running your driver’s license, learns of the outstanding warrant.

If you have an outstanding warrant, it is important that you contact a criminal defense attorney as soon as you can.

What is Embezzlement?

Embezzlement is what is considered a “White Collar Crime” which occurs when someone steals property or money from another who has entrusted that person to manage or monitor his or her money or property. One element of the crime is that the defendant had legal access but not legal ownership for someone’s money or property.

When you combine the taking of money or property for one’s personal gain with the fact that the individual had been placed in a position of trust, this amounts to the crime of embezzlement.

There are a variety of ways embezzlement can and does occur. Some examples are:

  • An employee steels money from their employer.
  • A bank teller steels money from customers
  • A family member steels from a relative
  • A professional or board member steels from clients or members
  • Anyone in a position of trust with another’s money or property.

What is the Punishment for Embezzlement?

The punishment is determined based on the value of the property or the amount of money stolen. When someone embezzles property worth less than $950.00, petty theft, it is a misdemeanor. The defendant could face up to six months in jail, a fine of $1,000.00 and probation if convicted.

If the property embezzled is worth more than $950.00, this is considered grand theft and can be filed an either a misdemeanor or a felony, depending upon the circumstances. If convicted of misdemeanor grand theft, the defendant could face up to one year in jail, fines and probation. However, if convicted of felony grand theft, the defendant faces the potential of 16 months, 2, or 3 years, in addition to fines.

However, the judge may impose more jail time and higher fines for aggravating factors. One example of this is an elder or defendant persons – Anyone who is in a position of taking care of an elderly or dependent person is someone who has been placed in a position of trust. In California, embezzling from an elder or dependent person is an aggravating factor.

An enhancement of up to five additional years may be added in situations where an individual is convicted of two or more felonies involving embezzlement, which loss resulted in more than $100,000.00.

There are defenses to these types of charges, which an experienced criminal defense lawyer will be familiar with.   Anyone who has been charged with embezzlement, or any white-collar crime, should seek the advice and assistance of an attorney who is experienced defending these types of crimes.

When a juvenile is arrested and charged with a crime, the effects can last a lifetime. Just being questioned by a police officer is intimidating; imagine being taken into custody as a child or teenager.

When a child, under the age of 18 years is facing serious charges, it can be devastating not only to the child but to the parent as well. One of the most important questions a parent can ask himself or herself is: How do I protect my child?

Teens are still not mature enough to stop, think and really consider how serious their actions are and what the consequences might be. Especially if they have never been in trouble with the law and have never had legal consequences. For this reason, it is extremely important to consult with an experienced attorney, who has experience in not only defending criminal charges, but who is experienced in defending juveniles.

The juvenile court system is quite different from the adult court system in that it focuses on rehabilitation rather than punishment. This is something that an experienced juvenile defense attorney must keep reminding the prosecution of because they tend to forget this. Keeping the prosecution focused on how to help the juvenile rather than punish him or her is extremely important in getting the best outcome for the juvenile.

Equally as important is preserving the juvenile’s record. One tool that is extremely helpful with this is Deferred Entry of Judgment. Preventing a guilty verdict or plea should always the goal.

If your child has been arrested or is being charged with a crime, contacting an experienced criminal defense attorney, who specialized in juvenile defense, should be your first step. As your child’s advocate, being informed will help you to make the right decisions for your child.

Possession Of A Controlled Substance Now A Misdemeanor

In California, possession or a controlled substance use to be a “wobbler” meaning that it could be filed as either a misdemeanor or a felony, depending on the type of drug and other circumstances surrounding the arrest and prior criminal history. However, since the passage of Proposition 47, possession of a controlled substance is now a misdemeanor and although not as serious as a felony, being convicted of a misdemeanor drug offense can carry serious, long-lasting consequences.

I have been practicing criminal defense law in Orange County for more than 20 years and have gained extensive knowledge in defending possession cases. Knowing how the district attorney and police agencies build their cases has given me a great advantage in defending my clients and minimizing the consequences if convicted.

One of the most important pieces to the defense of a possession case is the actions of the law enforcement officer who first came in contact with my client. It is my job to review all discovery, looking for mistakes, inaccuracies and even blatant disregard for the law, on the part of the officers involved. It is not uncommon for officers to violate the law when it comes to search and seizure and it is my job to identify when this has happened.

Although there are those law enforcement officers who follow the law, there are also those who do not. Some of the more common violations that police officers make, along with search and seizure violations, may include: entrapment, writing police reports with inaccurate or missing information, in an effort to persuade the District Attorney to file charges, misleading judges in order to obtain a search warrant and arresting individuals without probable cause.   When I am able to identify police misconduct, it creates a big problem for the prosecution and may lead to the suppressing the evidence presented against my client. This may then lead to an outright dismissal of the charges altogether.

So the key items that I look for are:

1) Was there probable cause to stop and search?

2) If drugs were found legally, who did the drugs belong to?

In order to the District Attorney to prove their case, the following elements must be met:

1) That you unlawfully possession a controlled substance

2) That you knew the controlled substance was in your possession

3) That you knew the substance was a controlled substance, and

4) That there was a usable amount.

There are times when the evidence is so overwhelming that some sort of guilty plea is inevitable. In this type of situation, my goal is always to find an alternative to jail or prison. Forcing the District Attorney to get to know my client as an individual and not as a criminal is something that I believe is extremely important. Maybe my client is an addict in need of a treatment program. This would be a better alternative to jail, which could result in a maximum of one year under the new law.

Anyone who has been arrested for possession of a controlled substance should contact an experienced criminal defense attorney to ensure that their rights are both protected and have not been violated.


Penal Code Section 243.4 defines sexual battery as follows:  Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery.  The law recognizes the difference between friendly touching, a friendly touch on the arm, a gentle touch on the back, and unwanted touching.  A friend, or even someone you have just met, may walk up and gently touch the arm of another as a friendly gesture.  But, anyone who touches another on an intimate part of their body, without their permission, is an assault.  The law describes “intimate part” as follows: anus, groin, sexual organ or buttocks of anyone and the breast of a female.  This type of touching is sexual in nature and therefore characterized as “sexual assault”, which is different than assault which is described as the unwanted touching of another.  The law further explains that the unwanted touching of another’s intimate part, under Penal Code Section 243.4, is done for the purpose of sexual gratification.

Sexual Assault can be prosecuted as a felony or a misdemeanor, depending upon the circumstances.  The severity of the offense will determine how the case will be filed.  When prosecuting someone for sexual abuse, the prosecution must prove the “elements” of the crime.  They are as follows:

(a) The defendant (or an accomplice) unlawfully restrained another person.

(b) While this person was restrained, the defendant touched an intimate part of this other person or touched this other person with his or her own intimate part.

(c) The touching was done against the other person’s will.

(d) The touching was done for the specific purpose of sexual arousal, sexual gratification, or sexual abuse.

For the case to be charged as a felony, contact must have been made with the other person’s bare skin.  What this means is that the individual must have touched the bare skin of the victim’s intimate part.  Or, the victim’s bare skin must have touched the defendant’s intimate part.  This can be directly on the bare skin or through clothing.

As indicated above, the person must be “restrained” for felony sexual abuse to be charged.  However, restraining someone doesn’t just mean by physical force.  Someone can be unlawfully restrained when his or her movement is controlled by words, acts or the authority of another.  The restraint must of course be against his or her will.

The difference between felony and misdemeanor assault is restraint and touching of the bare skin.  To explain, if an individual walks by a another and reaches over and grabs that person’s buttocks, through their clothes, this would be considered a misdemeanor sexual assault, because there was no restraining of the victim and no touching of any bare parts.

Defenses to Sexual Battery

  1.  False Accusations:  Sexual assault is the type of crime that typically leaves no evidence.  There is usually no physical injury or evidence of any contact, which makes it easy for someone to make false accusations.
  2.  That the touching was consensual is a defense to sexual battery, as well as the touching being non-sexual in nature.

Penalties for Sexual Battery

  1.  Misdemeanor sexual battery carries a sentence of up to six months in jail
  2.  Court fees and fines
  3.  Requirement to attend sexual offender program or attend counseling
  4.  One of the more serious consequences is the requirement that the offender be required to register as a sex offender.
  5.  Felony convictions for sexual battery are more serious and therefore carry more sever penalties.

As you can imagine, a conviction for sexual battery has consequences that can last a lifetime.  It is a very serious criminal offense, which requires an experienced criminal defense lawyer who has experience handling these types of cases.   In some cases, an attorney may be able to talk to the District Attorney before charges are filed, provide the DA with information he/she may not have and, may result in the charges not being filed at all.  Anyone facing this type of charge should contact an experienced criminal defense attorney as early in the case as possible.

Insurance fraud is any act committed with the intent to obtain a fraudulent outcome from an insurance process. This may occur when a claimant attempts to obtain some benefit or advantage to which they are not otherwise entitled, or when an insurer knowingly denies some benefit that is due.

The most common act of insurance fraud is when an insured individual or entity makes a false or exaggerated insurance claim, seeking compensation for injuries or losses that were not actually suffered. But it’s not just individuals committing fraud against insurance companies; insurance fraud is also committed against individuals. A couple of examples of this are: (1) the sale of unlicensed or bogus insurance to an individual and (2) an insurance broker or agent’s diversion or theft of insurance premiums paid by individuals.

The following is a list of the most common forms of insurance fraud:

  1. Premium Diversion – Put simply, this is embezzlement of insurance premiums by an insurance agent. The agent collects the premium from the client but uses the money for personal use rather than sending it on to the underwriter. Selling insurance without a license and then refusing to pay claims even though premiums have been paid is another form of premium diversion or embezzlement.
  2. Selling coverage you don’t want or need – You may already have a policy that is exactly what you need but your agent convinces you to buy a new policy. Even though the policy/coverage is real, it may be unnecessary and expensive when the policy you had was perfectly fine. Three examples of this are churning, sliding or twisting.

California insurance fraud laws are designed to punish those who make false claims. For example, an individual would be committing insurance fraud by submitting a claim based on a false, exaggerated or deliberate injury or loss. A doctor, who inflates their billing or charge for services not performed, commits insurance fraud. This is true for any other type of service that is performed for the benefit of an individual and paid for by an insurance company.

There are defenses to insurance fraud. In order for the prosecution to prove that an individual committed insurance fraud, they must prove that the defendant actively and intentionally took steps to benefit from a claim that they did not have a right to.   What if the individual mistakenly or genuinely believed that their claim was legitimate? Then there was no intent to defraud.

The penalties can be quite harsh, depending on the specific type of insurance fraud and the details of the act. The amount of money involved or, defrauded, also has an affect on punishment. These types of crimes are generally filed as felonies and can result in prison time as well as hefty fines. A court may also require that the defendant pay restitution to the victim of the fraud.

As mentioned above, there are defenses to insurance fraud, as well as alternative sentencing. A good criminal defense attorney, experienced in defending insurance fraud cases, can help get the best possible outcome.



There is no functional difference between temporary and permanent insanity under California law. The sole issue in California is the status of the defendant’s sanity at the time of the crime. The method of determining a defendant’s sanity is the two pronged M’Naghten rule.

1) The first prong requires a defendant to understand the nature and quality of his or her act.

2) The second prong requires the defendant to be able to distinguish between right and wrong.

A defendant who cannot satisfy both of these prongs is statutorily insane.

The M’Naghten Rule is fairly consistent across the U.S. The origin of the M’Naghten Rule is the 1843 M’Naghten case, where a British citizen named Daniel M’Naghten shot and killed the secretary of the English Prime Minister. The court acquitted M’Naghten “by reason of insanity,” and he was placed in an asylum for the rest of his life. However, after public scrutiny, Queen Victoria ordered the high courts to develop a consistent legal test for insanity. Thus, the “M’Naghten rule” became the standard method for determining insanity in England and the United States, and remains as such in California along with twenty other states.

The only serious changes in California regarding the testing of insanity, that is applied and not merely codified, is a 1994 amendment to the penal code that prevents California courts from finding a defendant insane solely on the basis of a personality or adjustment disorder, a seizure disorder, or addiction to, or abuse of intoxicating substances.

The process of declaring your insanity as a defendant begins at the arraignment hearing, where one can plead not guilty by reason of insanity.  If a defendant can convince the jury at their trial that they are not guilty by reason of insanity, then they will be sent to a state mental hospital instead of prison. However, even when an insanity plea is successful, it is rare that those acquitted walk entirely free. In almost all cases, a verdict of not guilty by reason of insanity prompts a judge to commit defendants to a state mental hospital until health officials determine they do not pose a serious threat to public safety. However, there are exceptions. In January of 2013, a California mother accused of drowning her 3-year-old child was found not guilty by reason of insanity and the judge deemed her ready to reenter society.

If you have any questions regarding the use of the insanity defense in California, or about a situation that applies to this, feel free to discuss it with me.