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.

As temperatures rise going into spring and summer, so does the risk of vehicular hyperthermia for children left inside hot vehicles. Each year since 1998 an average of 38 children have died in hot cars in the U.S. Although these tragedies occur nationally, California is one of only 20 states that has addressed the issue formally. The law in California (Kaitlyn’s Law) holds that leaving a child unsupervised in a motor vehicle is a violation with a fine of one hundred dollars (CAL. VEH. CODE 15620).

(a) A parent, legal guardian, or other person responsible for a child who is 6 years of age or younger may not leave that child inside a motor vehicle without being subject to the supervision of a person who is 12 years of age or older, under either of the following circumstances:

(1) Where there are conditions that present a significant risk to the child’s health or safety.

(2) When the vehicle’s engine is running or the vehicle’s keys are in the ignition, or both.

So what constitutes a “significant risk to the child’s health or safety”? There isn’t a set outdoor temperature that establishes at what point leaving a child unsupervised in a vehicle is safe or unsafe. Cars heat up at a remarkable speed. The average vehicle can rise 20 degrees in interior temperature in just under 10 minutes. Even opening windows or parking in the shade does little to make a car cooler. The interior of a vehicle left in 80 plus degree heat can reach 120 degrees in less than an hour. This is important because the effects of heat stroke begin when the body passes 104 degrees internally, and becomes deadly at 107 degrees. Another issue is that the body temperatures of children can increase 3 to 5 times faster than the average adult. Therefore, even in seemingly mild weather it is not only ill advised, but in California, considered a significant risk to leave a child unsupervised in a motor vehicle.

When an “unattended child is injured or medical services are rendered on that child,” the penalty is more severe. Last week in Washington D.C., a couple pleaded guilty for leaving their two toddlers alone in their car while they attended a wine tasting around the corner. In D.C. there is no law regarding unattended children in vehicles. However, when “anyone knowingly or intentionally engages in conduct that places the health of a child in serious risk”, they can be charged “with an offense.” In this case, the children were checked by paramedics and were in good health, but had the parents actually gone to trial, rather than plead guilty, they could have faced a maximum sentence of one year in jail. If the situation outlined above occurred in California, the defendant could be arrested and charged with a violation of California Penal Code 273A and if found guilty of child endangerment, would face one year in county jail if filed as a misdemeanor, or two, four or six years in state prison, if filed as a felony.

Child endangerment is a serious criminal offense that is regularly charged in cases of leaving a child unattended in a car.  If you have any questions regarding any aspect of Kaitlyn’s Law, and/or, child endangerment, feel free to contact me and I will be happy to discuss this with you further.

Penal Code Chapter 2.9C 1001.80 Pretrial Diversion For Firearm Offenses

The Legislature has introduced a new bill that will establish a pretrial diversion education program for those who are arrested for nonviolent misdemeanor or felony firearms offenses. The bill will specify the guidelines and define the criteria, application and procedures related to the diversion program. The bill will further define the procedural elements associated with a dismissal of charges and elimination of an arrest, for purposes of criminal records. Along with these parameters, the bill will authorize the imposition of any costs and fines associated with the diversion program.

In recognizing the complexity of California firearm statutes and implementing regulations and the confusion created thereby, it is being recommended that a pretrial diversion education program be created. This education program would be an alternative to prosecution for those who qualify, meaning nonviolent firearm offenses.

The way the program would work is that it would postpone the prosecution of an offense either temporarily or permanently, at any point during the judicial process. If the individual performs satisfactorily during the period of diversion, the criminal charges will be dismissed. Further, any record filed with the Department of Justice would be updated with the disposition and any arrest record upon which the diversion was based shall be deemed never to have occurred.

No defendant will be required to make an admission of guilt as a prerequisite for placement in the pretrial diversion program. No statements made by the defendant in connection with the determination of his or her eligibility for diversion, shall be admissible in any action or proceeding.

The thought is that by educating offenders, the pretrial diversion program will help to reduce and/or eliminate future violations, reduce firearms involved accidents and misuse. Further, the intent is to encourage knowledge and responsibility about nonviolent firearms laws offenders.

However, the bill does not prevent any prosecuting attorney from pursuing charges against an individual who is suspected of an offense that may qualify for this pretrial diversion. When being considered for this diversion education program, the prosecution shall look at the following:

1) Whether the defendant has been on probation or parole that has ever been revoked.

2) Whether the defendant’s record indicates that he or she has previously been diverted.

3) Whether any classes described in Section 1001.83 exist within a reasonable distance from the residence of the defendant.

There are fees and fines associated with the program but, no person can be denied diversion due to their inability to pay the charges. Further, once the case has been diverted, any bail bond or deposit in lieu thereof on behalf of the defendant shall be exonerated.

The passing of this bill is extremely beneficial to individuals who qualify for and successfully complete, the pretrial diversion education program, in that their case will be dismissed, the Department of Justice will amend their records and the arrest record will be deemed not to exist. Further, when asked any questions concerning prior criminal record, the individual may respond that he or she was not arrested or diverted for the offense.

 

 

One of the most overlooked areas of criminal defense is the consequence to the defendant, after a conviction, to his or her gun rights. There are numerous convictions under the statutes that would bar a defendant from possessing or owning a firearm for 10 years. To name a few, any threats to police officers or public officers, intimidating witnesses, possessing a deadly weapon with the intent to intimidate witnesses or threatening witnesses will result in a firearms ban.

 

There are crimes of violence that can also trigger a ban. These include, but are not limited to assault, battery, sexual battery and any assault with a firearm, whether it creates injury or is used with force likely to produce great bodily injury. As you can imagine, discharging a firearm in a grossly negligent manner will result in a ban.

 

One very common area that creates a prohibition is domestic violence. It doesn’t matter whether or not there is measurable harm to the victim, either. Any of the other related domestic violence charges like stalking or threats or harassment could trigger the ban.  What frustrates many people is that after being convicted and told that there’s a ten-year ban, they then learn that it’s actually a lifetime ban under federal law.

 

Convicted felons may not possess guns and, unknown to many people is the fact that if you have been issued or served a Temporary Restraining Order or an injunction under the civil code, that may prevent you from possessing firearms. Logically, any person who is mentally incompetent found insane or is considered a mentally disordered sex offender or under a court imposed conservatorship cannot possess firearms.

 

Please note that an expungement does not automatically restore your right to possess guns. If you have a felony conviction that could have been a misdemeanor (“a wobbler”) you would want to have a matter reduced to a misdemeanor and then expunge the conviction.  But be advised that even though some rights are restored automatically after a ten-year period, you may be subject to a lifetime ban if you were convicted of brandishing a gun or discharging it.

 

It is extremely important, if you possess firearms and want to maintain possession of them, that you consult a qualified attorney who can help you determine whether or not the charge you are facing will trigger a ban on possession or ownership. Do not admit to charges without knowing the full scope of the consequences. I get many calls from individuals, after they have already been convicted, trying to have their gun rights restored.  However, as indicated above, once an individual admits certain charges and is convicted, the chances of getting their gun rights restored are very slim.  The most important thing a person can do is seek the advice and assistance of an experienced criminal defense lawyer, who has experience defending these types of charges, before admitting to or pleading to any charges.  If you have any questions regarding any aspect of this, feel free to contact me I will be happy to discuss with you further.