California Criminal Defense Lawyer Blog

A 24-year-old man was sentenced to 4 years in prison and 15 years probation after being found guilty of cyberstalking a fellow student at the University of Central Florida. As an Orange County Criminal Defense Attorney, it has been my experience that the Orange County Courts are extremely aggressive when it comes to this type of crime.

Cyberstalking is a relatively new crime, which is occurring more often due to the increased sophistication of electronic communication. Law enforcement agencies have actually developed special "task forces" to investigate and handle these matters as more incidents are being reported. In 1998, the California legislature amended it's stalking laws to include electronically communicated threats. Basically, cyberstalking is stalking by the use of an electronic communication device. California stalking laws prohibit harassing and/or threatening someone to the point that they fear for their safety or the safety of a family member. If the threat or harassment is communicated through email, text, phone, Internet, video, fax or any other electronic device, it is referred to as cyberstalking.

Regardless of how severe the circumstances, the Orange County District Attorney prosecutes stalking cases aggressively. Here are some examples of cyberstalking, some of which may come as a bit of a surprise to some people:

Unwanted/unsolicited threatening or harassing emails;

Unwanted and/or disturbing pages, instant messages, text or sext messages I ("sexts" or "sexting" refers to sending explicit photos or messages, cell phone to cell phone);

Posing as another person in a chat room and writing things on behalf of that individual that are intended to anger other chat room participants;

Posting embarrassing, or humiliating information about the alleged victim;

Posting personal information (including a phone number, address, workplace, etc) about another person, encouraging others to harass that person.

Logging into on-line accounts to empty a person's bank account or ruin that person's credit.

In order to be convicted of cyberstalking, the prosecution must prove the same elements as in the traditional California anti-stalking laws, only the credible threat must have been made electronically. The following are the elements that must be proven:

Maliciously or willfully harassed or threatened another person

Made a credible threat against that person;

Placing that person in reasonable fear for them self or their family;

The threat or harassment was communicated by the Internet or other electronic device.

If convicted of cyberstalking, the sentence can range a great deal. Cyberstalking is a "wobbler" meaning that the prosecution can file the case as either a misdemeanor or a felony, depending upon the facts of the incident and the criminal history of the accused.

If convicted of misdemeanor cyberstalking, the sentence may include: up to a year in a county jail and fines of up to $1,000.00.

A felony conviction for cyberstalking may include up to five years in the California State Prison, fines of up to $1,000.00 and possible lifetime registration as a sex offender under Penal Code 290.

There are defenses to this serious charge that an experienced criminal defense attorney will be familiar with and know the best way to present you and your defense to the prosecution. If only one element of the crime that the prosecution must prove is unfounded, the case must be dismissed. In other words, the prosecution must prove all of the elements in order to get a conviction.

Continue reading "Man Sentenced To Four Years In Prison For Cyberstalking" »

An investigation lead by the Newport Beach Police Department has resulted in the seizure of 300 marijuana plants and about $24,000.00 in cash, after searching several homes in Orange County, California. As an Orange County Criminal Defense Attorney, my first thought is, was the search legal? Did the officers obtain search warrants before entering the homes and if so, were the search warrants obtained legally, following the criteria needed to obtain a search warrant.

According to authorities, in this particular situation, the initial investigation lead officers to indoor marijuana growing in Laguna Niguel and Huntington Beach. The information they obtained further lead them to search a home in Lake Forest. The search of the home in Lake Forest resulted in officers obtaining additional information on a commercial building in Huntington Beach where more marijuana growing plants were found.

One man was pulled over and arrested and reportedly in possession of 24 pounds of marijuana when he was stopped. He has been booked on suspicion of transportation and sale of marijuana. Another man was taken into custody at his Laguna Niguel home after detectives found a marijuana grow in his home, and 300 marijuana plants. A woman was taken into custody after searching her Lake Forest home and booked on suspicion of transportation and sale of marijuana. Another man and woman were arrested on suspicion of possession of marijuana for sale after a commercial building in Huntington Beach was searched and officers found more marijuana growing as well as nine pounds of marijuana. The marijuana seized in all, reportedly has a street value of about $200,000.00.

It will be important when hiring attorneys that these people find an experienced criminal defense attorney who has significant experience in possession and sales cases and more importantly, that he or she has an understanding of the laws as they relate to illegal search and seizure. The officers involved in this investigation were required to follow the very specific laws as they relate to the proper procedures to obtain search warrants and therefore, this must be looked at very carefully, paying close attention to each detail that lead to each home and/or individual search.

Marijuana possession for sale is a felony. The amount that is sold, nor whether or not the sale was witnessed, does not matter. The amount of marijuana, the manner in which it is packaged, large amounts of cash, if there is the presence of a scale and or baggies used for packaging the marijuana are found with the marijuana, then the prosecution may charge felony possession for sale.

For prosecutors to prove their case, they must prove that: 1) The defendant possessed a controlled substance; 2) The defendant knew of its presence; 3) The defendant knew of the substance's nature or character as a controlled substance; 4) When the defendant possessed the controlled substance, he/she intended to sell it; 5) The controlled substance was marijuana; and 6) The controlled substance was in a usable amount.

To be found guilty of transportation of marijuana, the prosecution must prove that: 1) The defendant transported a controlled substance; 2) The defendant knew of it presence; 3) The defendant knew of the substance's nature or character as a controlled substance; 4) The controlled substance was marijuana and 5) The marijuana possessed by the defendant weighed more than 28.5 grams.

If you or a loved one has been arrested for possession for sale of marijuana, contacting an experienced criminal defense attorney in the county in which you are being charged can make the difference in felony possession and misdemeanor possession. An experienced drug defense attorney knows that police routinely use unreliable informants, defective search warrants, invasive tactics and other illegal methods to bust users, growers and dealers of marijuana. An aggressive attorney who looks closely at the arresting officers' conduct, could make the difference in the case being dismissed.

Continue reading "300 Marijuana Plants Seized in Orange County, California" »

A 30 year old woman has pleaded not guilty to charges that she hit a pedestrian and left the scene of an accident in Garden Grove on December 28, 2011. It was reported that the woman hit a 54 year old man and as she fled the scene, another car hit the man and drug him several feet. The second car stopped and spoke to investigators at the scene. The man was listed in serious condition. The 30 year old woman turned herself in a day later.

In California, you may be charged with misdemeanor hit and run if you: 1) leave the scene of an accident; 2) without first identifying yourself to the other party or parties involved, and 3) another's property was damaged in the accident. Hit and run becomes more serious when charged with DUI, significantly increasing the need for an experienced DUI defense attorney.

There are two types of hit & run offenses in California, misdemeanor and felony. The difference between a misdemeanor hit and run and a felony hit and run is that a misdemeanor deals with property damage whereas the felony charge deals with injury. You may be charged with a felony hit and run if someone other than yourself was injured.

In order to be convicted of misdemeanor hit and run, the prosecutor must prove that: 1) you were involved in an accident that resulted in another's property being damaged; 2) that you knew an accident had occurred; and 3) that you were involved in the accident where either you knew property was damaged, or that the accident was of such a nature that it was probable that another's property was damaged, and that you failed to perform the duties required when involved in an accident. It becomes a felony if injury or death to another resulted from the accident.

Some defenses to hit and run include: 1) that you lacked knowledge either about your involvement in the accident or about the injuries; and/or 2) that it wasn't you who was involved in the accident. An attorney experienced in defending hit and run cases knows that eyewitness accounts are rarely accurate when remembering the chain of events, which can lead to a person being wrongly accused. Visiting the scene of the accident and exploring the possibility of employing an accident reconstruction expert, are some of the things a good defense attorney should do.

Being charged with a felony hit and run can be extremely overwhelming to face without the help of an attorney who has experience with hit and run cases. The goal of a good attorney will be to have the case dismissed. But, at the very least, looking at the charges independently, getting any felony charges reduced to misdemeanors and getting one or more of the misdemeanor charges dropped, will ensure the best outcome.

Continue reading "Garden Grove Woman Charged With Felony Hit & Run" »

Mission Viejo is the newest City in Orange County to ban sex offenders from city parks, open space areas and community recreation centers, as well as soccer fields. Still at issue are the liability, enforceability and constitutionality of the ban.

The ban would make it a misdemeanor for sex offenders to be in certain areas of the city without written permission from the Orange County Sheriff's Department, which handles services for Mission Viejo. A violation could mean up to six months in jail and/or a fine up to $500.00.

The City of Fullerton has previously passed a law making violators of Jessica's Law, subject to a fine of to $1,000.00 and six months in jail. In addition to Mission Viejo, the ban has been approved in Irvine, La Habra, Lake Forest, Laguna Hills, Los Alamitos, Huntington Beach, Westminster and Yorba Linda. Irvine has narrowed their law to sex offenders who have targeted minors.

In California, anyone who has been convicted of a sex crime is required to register as a sex offender for as long as they live in California, attend school in California or are working in California.

Anyone who has been accused of a sex crime should seek the immediate advice and assistance of an experienced criminal defense attorney whose practice is strictly limited to criminal defense and focuses on sex crimes. An experienced attorney in this field will know the most effective defenses and be better able to present the types of arguments that can influence the prosecutors to limit the charges to those that do not subject a person to sex offender registration.

Continue reading "Orange County Bans Sex Offenders From City Parks" »

Possession of a controlled substance with intent to sell is a felony. If convicted, punishments range from probation, 1 year in County Jail or 2, 3 or 4 years in a California State Prison. Possession for sale of marijuana is a felony and is punishable by up to 4 years in State Prison.

To prove intent to sale, the prosecution does not need to prove that you sold anything, only that you intended to. This proof can be made based on the amount of drugs found, other items found such as baggies or scales, conversations with undercover officers or informants and high volume of traffic to and from you residence.

Fortunately, there are defenses to all of these crimes. Some include: 1) Illegal search and/or seizure; 2) No intent to sell; 3) Lack of possession; and 4) Lack of knowledge. These are serious felony charges and therefore an experienced Orange County Criminal Defense Attorney is imperative to helping achieve the best possible outcome.

Every county and every courthouse has it's own way of doing things. It is important to have an attorney who is familiar with how things work in the Orange County Courts and/or courtroom. It is likewise as important that the attorney have a good relationship with the Judges, prosecutors, probation officers and the court staff.

Continue reading "Orange County Laws Regarding Possession Of A Controlled Substance" »

A 16 year old boy was arrested on suspicion of murder after a 19 year old man was found stabbed and later died at the hospital. The altercation happened at a Huntington Beach park. This young man is facing serious charges, and at his young age, can affect him for the rest of his life. As devastating as something like this is to a parent, one of the most important questions a parent can ask themselves 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 that these minors be represented by experienced criminal defense attorneys, who have experience in not only defending these charges, but who are also experienced juvenile defense attorneys in Orange County, California.
Once a juvenile is arrested for a crime, there are a few different ways law enforcement may proceed. Informal contact with parents, public or private diversion, citation and referral to probation, or arrest. Once the case is submitted to probation, probation has limited discretion whether or not to submit the case to the district attorney or proceed informally. If the case is submitted to the district attorney, they then decide whether to file or dismiss the case. An Orange County Criminal Defense Attorney, specializing in juvenile criminal matters, will be able to advise and guide parents and their child through these procedures.

The juvenile justice system is different from the adult justice system. In Orange County Juvenile Court, the focus is on treatment and rehabilitation for the juvenile while the adult justice system focuses on punishment. However, depending upon the charge, a juvenile can be prosecuted as an adult and be subject to the same penalties as an adult. In a situation where a juvenile is tried as an adult, it usually involves crimes of violence. Juveniles 16 or 17, who commit serious felonies, can be tried as an adult. Also, a juvenile 14 or older being charged with murder can be tried as an adult. However, even if a juvenile is tried as an adult, they are still treated different. There are more options in terms of how and where they are prosecuted and how and where they will serve their sentence.

It is extremely important that an experienced Orange County Juvenile Defense Attorney be retained to represent this young man and further that, the attorney be familiar with the Orange County Juvenile Court. Being familiar with the Judges, District Attorneys, Court Clerks and Probation Department, will help facilitate the best possible outcome for your child. The question parents should ask themselves is what do I do to protect my child. Juveniles make mistakes and most have never known, or been exposed to legal consequences. Preserving your child's record, so that their college goals and future employment are not affected negatively should be the goal of a good juvenile criminal defense attorney.

Continue reading "Huntington Beach Teen Arrested For Murder" »

A Laguna Hills man was recently arrested and is in custody on suspicion of lewd and lascivious acts against three children. An allegation of child molestation is probably the most serious of allegations in terms of the effect is has on a person’s future. An experienced Orange County child molestation defense attorney understands the seriousness of the allegations and also understands how actions or information can be misinterpreted. The Irvine Law Office of William Weinberg understands how social workers, hospital staff and school administrators sometimes act before thoroughly investigate and understanding the circumstances surrounding the information they have been given.

In this case, A 37 year old man, who is a bus driver in South Orange County, is being accused of having two children under the age of 14 and a 3 year old, in his apartment and committing lewd acts against them. Lewd acts with a child is described as the touching of a child on his/her body for sexual purposes. These cases often involve accusations that a child was touched or fondled, or that some other act of child molestation took place. A charge of molestation or lewd acts with a minor involves the touching the child anywhere on the body, even on the outside of clothing, if the touching is done “with the intent of arousing or gratifying the lust or sexual desires of the person or the child.”

To be convicted of this charge, it must be proven that the person willfully touched any part of a child’s body or caused the child to touch his/her own body, and that it was done so with the intent to arouse or gratify the lust, passion or sexual desires of the person or the child.
The potential prison sentence if convicted of Penal Code 288 PC/Lewd Acts with a Child, is three, six or eight years in state prison. Further, anyone convicted of this crime is required to, for the rest of their life, register as a sex offender, while living in California, working in California or attending school in California.

Unfortunately, false accusations of child sexual abuse occur more than people realize. If a child makes an allegation of some sort of Lewd and lascivious act, the police and prosecutors typically tend to begin building a case against the accused rather than looking closely at the situation, the child, and what may be going on in the life of both that may have lead to the accusation.

There are situations where children make false accusations. This is done for a number of reasons. One reason might be that there is a new stepparent in the picture and child is unhappy about it. Also, if there is a divorce or custody case pending, one parent may coerce the child into making false accusations or, convince the child that something inappropriate happened.

If you have been falsely accused of a sex crime against a child, or if you think you might be, it is critical that you contact a California Criminal Defense Attorney to protect you and your reputation.

Continue reading "Laguna Hills Man Arrested for Molestation" »

When a juvenile is charged with a juvenile offense, employing the help of an attorney who has experience specifically in juvenile court will ensure the best outcome for that child. Juvenile court is very different from adult Court. The procedures are different, the language is different and many of the laws are different. Criminal defense attorneys who take the occasional juvenile matter are not going to be as effective in getting the best result for the minor as an attorney who is familiar with the inner workings of the juvenile court system. Further, an attorney experienced in the juvenile courts will have developed relationships with the Judges, district attorneys, court clerks and personnel which gives the attorney an advantage over an attorney who practices primarily adult criminal defense law.

When representing a juvenile, the objective of a good juvenile defense attorney should be: 1) keeping the minor out of custody. The minor should be with their family, in school, and in community where they belong. 2) Keep the offense off the record. When a minor makes a mistake which results in an arrest and/or criminal charges, the objective should be to do whatever possible to get the charges dismissed so that the mistake doesn't follow them into adulthood; and 3) Help the minor get back on track. Find out what was or is going on in the minor's life that caused them to get into trouble in the first place. Whether it be drugs, alcohol or hanging around with the wrong crowd, knowing what the triggers are will help determine the best plan for the minor, thereby helping them stay out of trouble in the future, and back on track.

There are many options that do not involve confinement and that allow the juvenile the chance to accept responsibility for what they have done and at the same time preserving their record.

Continue reading "Juvenile Criminal Defense in Orange County, CA" »

A federal grand jury charged Appellant Angel Camacho with one count of unlawful possession of a firearm and ammunition by prior felon and one count of possession of a firearm with an obliterated serial number. Appellant filed a motion to suppress the firearm and ammunition evidence on the grounds that they were obtained through an illegal search and seizure, in violation of the Fourth Amendment. The trial judge denied the motion. Camacho then entered conditional guilty pleas on both counts, reserving his right to challenge the trial judge's suppression ruling on appeal. The district court sentenced him to the mandatory minimum sentence of 15 years in prison one Court one, to be served concurrently with 5 years in prison on Court Two, followed by 5 years of formal probation. As an Orange County Criminal Defense Attorney, protecting my clients' constitutional rights is my number one priority.

In this case, in question is whether or not appellant's Fourth Amendment Rights were violated when he was questioned and subsequently searched and arrested. The facts of this case are, that a series of 911 calls reported a fight going on between gangs, identifying most of them as members of the Latin Kings, a well-known national street gang. Police Gang Units arrived on the scene as people scattered. One officer in particular recognized several of them as members of the Latin Kings. Another officer noticed two men he did not recognize walking down the street and directed two officers to intercept and question them. The officers that were directed to go were familiar with the gangs and the gang members in the area and did not recognize either of the men walking down the street. They pulled their car up in a driveway, blocking their path, got out of the car and ordered one of the men to put his hands on the roof of the car and the other officer began questioning Camacho. Camacho indicated that he had seen the fight but was not involved. Camacho had his hands in his pockets. The officer ordered him to take his hands out of his pockets. When he did, the officer patted his waist and felt a gun and yelled "gun". At this point, Camacho pushed the officer and they struggled until Camacho was subdued and placed under arrest. He was then searched which resulted in the officer finding a gun and ammunition.

Appellant, Camacho's position is that, the initial stop was a violation of his Fourth Amendment in that the police officers lacked the reasonable suspicion necessary for the stop and seizure. The judge agreed with Camacho's position on this and agreed that this was not enough to raise a reasonable suspicion. However, the judge concluded that suppression of the gun was "neither called for nor appropriate." The trial judge found that the gun was seized after Camacho shoved the officer and the officer succeeded in wrestling him to the ground and placing him under arrest. Therefore, the search and seizure of the gun was justified.

The Appellate Court agreed with Camacho and cited Terry v. Ohio, wherein it states that a police officer may briefly detain an individual for questioning if the officer "reasonably suspects that the person apprehended is committing or has committed a crime. The reasonable suspicion standard is an intermediate, indeterminate standard that requires more than a mere hunch. It demands a "particularized and objective basis" for suspecting the person stopped of criminal activity. The suspicion must be both reasonable and "grounded in specific and articulate facts." The Appellate Court's opinion was that the police officers lacked an objectively reasonable particularized basis for suspecting Camacho of criminal activity and that the initial questioning of Camacho was instead an unreasonable seizure in violation of the Fourth Amendment. And further, that the officers' conduct "amounted to a flagrant violation of the core of Camacho's Fourth Amendment right against unreasonable seizures."

The Appellate Court further concluded that regardless of whether or not the frisk and discovery of the gun was legal, the gun was so tainted by the illegal stop that it should have been suppressed as "fruit of the poisonous tree." The discovery of the gun was a direct result of the officer's' original unlawful seizure of Camacho. The Appellate Court concluded that the district court erred in denying Camacho's motion to suppress the firearm and ammunition and the Judgment of the District Court was reversed.

The Appellate Court's decision was later reversed on Appeal by the United States. Citing case law, The United States Circuit Court held that in this case, the suspicion may be modest; but the intrusion is similarly modest and the need for prompt inquiry is compelling. They further found that in questioning Camacho, the police acted reasonably and that "reasonableness, as it happens, is the standard set by the Fourth Amendment itself. "

Anyone who has been arrested and/or charged with a crime as a result of a stop and search should contact an experienced criminal defense attorney. An attorney who has the experience and knowledge to protect your rights as it applies to the US Constitutionhttp://www.williamweinberg.com/ will know whether or not there your rights were violated and thereby leading to the possibility of having evidence suppressed and/or the case being dismissed.

Continue reading "Felony Conviction Reversed on Appeal" »

A recent Supreme Court decision resulted in a guilty verdict being reversed citing that the defendant's Fourth Amendment rights had been violated. As an Orange County Criminal Defense Attorney, protecting the rights under the United States Constitution, is paramount in the defense of my clients. This case is a good example of a violation of a person's Fourth Amendment right. In Boykins v. State, 307 GA. App. 404 (705 Se2d 186) (2010), A State Court convicted the defendant of possession of cocaine and sentenced him to four years in prison. Defendant appealed his conviction as well as the denial of his motion to suppress the evidence seized from his vehicle. The Appellate Court affirmed the State Court's decision and the Supreme Court granted "certiorari" to determine whether or not the Court of Appeals erred in applying the case law in Arizona vs. Gant , 556 U.S. 332 (129 SC 1710, 173 LE2d 485) (2009), to the facts of this case.

In this case, Boykins v. The State, defendant was observed by a police officer pulling up in his vehicle to a woman who was walking in a high crime area. The police officer stated that when he turned his patrol car around, defendant quickly drove away. The officer followed defendant to an apartment complex and pulled up behind him. He asked defendant for identification. He stated that his identification was in his apartment but gave his name and date of birth. It was discovered that defendant had an outstanding probation arrest warrant and was taken out of the vehicle, handcuffed and placed in the custody of the second officer on the scene. The officer then searched defendant's vehicle finding cocaine in the center console.

Prior to trial, defendant filed a motion to suppress the drug evidence on the ground that the search was not proper, citing case law from Arizona v. Gant. In Gant, the Court held that "police may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest." The State Court denied the motion and thus defendant was convicted. The Court of Appeals upheld the State Court's decision determining that the search of the vehicle was permissible because the appellant was standing outside of the vehicle at the time of the search and unlike the defendant in Gant, had not been placed in the back of the patrol car.

The Supreme Court's view of this was that, a fair reading of Gant cannot reasonably lead to the conclusion that the only manner in which to remove an arrestee from reaching distance of the interior of a vehicle is to place the arrestee in the back of a patrol car. Further, the State was unable to justify the search on the second ground in Gant, that being "when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle." Gant, supra, 129 SC at 1719.

There are other exceptions to the warrant requirement however, in this case, the State failed to meet its burden of proving the search incident to arrest exception to the warrant requirement and thus the exception did not apply. The Judgment was reversed.

Possession of a controlled substance is a felony. The penalties if convicted are:

1. Probation and up to one year in county jail, or
2. A California State prison sentence of 16 months, or two or three years.

If you have been arrested for possession of a controlled substance in Orange County, California, it is extremely important to hire an aggressive Orange County drug defense attorney who is familiar with all of the Courts in Orange County. An attorney who has a good working relationship with the individual Judges, District Attorneys, Court Clerks and Probation Department, as well as the Court staff, will be better able to get your charges reduced and/or dismissed. An attorney familiar with the Courts in which a case is pending will result in the best possible outcome available.

Continue reading "Possession of Cocaine Guilty Verdict Reversed By Supreme Court " »

In the case of People vs. Sheehan, Barbara Sheehan was recently found not guilty in the shooting death of her husband, which happened two and a half years earlier in their home. The Battered Woman's Defense was offered as the defense to the second degree murder charge, stemming from years of domestic abuse inflicted upon Sheehan by her husband. As an experienced Orange County Criminal Defense Attorney, it is important to understand the difference between self-defense, where a person is in imminent danger of a lethal assault and domestic violence where there is a history of physical abuse and threats. It is also important to be aware that this defense can apply to both males and females.

There are a small number of situations where self-defense can be argued as justification for using violence to protect ones self. A common requirement for this defense is that a lethal assault is "imminent" to justify a victim in killing another person and it's relation to the "duty to retreat". These two concepts limit a person's right to use deadly force in self-defense. An example of "imminent" danger would be where an intruder enters your home with a weapon drawn. The option of calling the police and risking the police not arriving in time would place the homeowner in grave danger. Therefore, the homeowner may use lethal force in order to defend himself and any other innocent people sharing the home. On the other hand, the "duty to retreat" might apply in a situation outside of the home where a person could avoid getting hurt or killed by leaving the scene.

Domestic violence differs in important ways from the self-defense explanations described above. Domestic violence often involves a victim who lives in the same home as her attacker and thus the attacker is not an intruder and also, domestic violence is usually an ongoing situation, not a one-time situation that someone can get away from. Thus, women who kill their batterers to defend their own lives do not act in ways that follow the typical self-defense rule.

In People vs. Sheehan, Mrs. Sheehan testified that she had endured years of domestic violence, including her husband throwing scalding pasta sauce at her and bashing her in the head with a telephone when she tried to call 9-1-1. She further testified that on one occasion, while on vacation in Jamaica, her husband slammed her head into the stone wall of the hotel repeatedly and she ended up in the hospital. Leading up to her husband's death, Barbara Sheehan testified that she had told her husband that she would not be going on vacation to Florida with him. He became progressively more violent and menacing and ultimately pointed a gun at her and threatened to kill her. On the day that Barbara Sheehan killed her husband, he had pointed the gun at her and told her he was going to kill her but didn't pull the trigger. At that point, Barbara Sheehan went and got one of her husband's guns and went to the bathroom where he was shaving, with his gun sitting next to him on the counter, and shot him.

On the issue of "imminence", as it applies to this case, Mrs. Sheehan felt the need to act in advance of a direct threat to her life, rather than waiting for the threat to become imminent. However, does this violate her duty to retreat to safety? In reality, women who leave a violent relationship can actually trigger more violence and statistically, are more likely to be killed. The legal system is not well designed to protect an individual from an ongoing and escalating threat directed specifically at them.

The reason to require imminence in these types of situations is to ensure that violence against the assailant is necessary to protect your own life and "retreat" serves the same purpose. If you can safety retreat from an assailant, you should do so.

In the Barbara Sheehan is was made clear to the jury that there was no where she could retreat to where her husband wouldn't find her and further that she knew and was sure that he would kill her, if she hadn't killed him first. Thus the "Not Guilty" verdict.

Continue reading "The Battered Woman's Defense" »

In the wake of the recent Seal Beach, California shootings, the cry for gun control is again surfacing. According to reports, a man walked into a hair salon carrying 3 guns, using at least two of them to shoot and kill 8 people. It is not yet know whether or not the man possessed the guns legally, but what appears to be obvious is that there are no guns laws that could have prevented this man from killing these people.

The Second Amendment to the US Constitution protects an individual's right to possess a firearm and to use that arm for traditionally lawful purposes, such as self-defense within the home. Clearly this is not the case in the Seal Beach shootings. Additionally, there are longstanding prohibitions and restrictions on firearms possession.

The Brady Handgun Violence Prevention Act is an Act of the United States Congress that instituted federal background checks on firearm purchases in the United States. The Brady Act requires that background checks be conducted on individuals before a firearm may be purchased from a federally licensed dealer, manufacture or importer, unless an exception applies. Further, under the Brady Act, you cannot have a gun for personal or business if you:

1. Were convicted of a crime punishable by being in prison for more than one year;
2. Are a fugitive from justice;
3. Are addicted to, or legally use, any controlled substance;
4. Have been ruled mentally defective by a court, or are committed to a mental institution;
5. Are an illegal alien living in the United States unlawfully;
6. Received a dishonorable discharge from the U.S. Armed Forces;
7. Renounced your U.S. citizenship, if you are a U.S. citizen;
8. Are subject to a court restraining order that involves your "intimate partner," your partner's child, or children; or
9. Were convicted of domestic violence in any court of a misdemeanor.

State gun laws vary considerably from state to state. California gun laws allow almost anyone to buy a firearm without a license. The only people generally prohibited are felons, persons convicted of certain misdemeanor offenses, persons addicted to narcotics, persons who suffer from mental illness and minors. Therefore, in California if you don't fall into one of these categories, there are ways to exercise your Second Amendment right to bear arms.

As an Orange County Criminal Defense Attorney, I am a strong believer in the Constitution of the United States and in protecting the rights of individuals. The "right to carry" laws are federal and state constitutional rights. The law has common sense protections, and as a qualified attorney, who is knowledgeable in the field of criminal defense, can help classify the exceptions for someone being charged with possession of firearms.

Continue reading "California Gun Laws" »