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When I get a call from someone who has been arrested for domestic violence, they often tell me that they were arrested for “Felony” domestic violence. What they don’t understand is that arresting agencies typically will call it a felony at the time of arrest, but it is up to the District Attorney whether or not they will file it as a felony or a misdemeanor.

As mentioned above, domestic violence can be filed as either a misdemeanor or a felony. When the district attorney is deciding how to file the case, they will look at the circumstances surrounding the incident, the relationship between the accused and the “victim”, the criminal history, if any, of the accused and the severity of the injuries, if there were any.

One of the more common arrests for domestic violence is for Penal Code 243(e). It involves battery upon a spouse, co-habitant, etc. This is a misdemeanor domestic violence charge. Another more common charge for domestic violence is Penal Code Section 273.5. This is a “wobbler” and can be filed either way. Arresting agencies typically will arrest a suspect for felony 273.5 but once it reaches the district attorney, will be reduced to a misdemeanor.

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Border Patrol officers in San Clemente intercepted $6.7 million of cocaine at a freeway checkpoint last week when a man claiming to be a U.S. citizen was stopped. The 54-year-old man was nicely dressed in a suit and tie and driving a relatively new automobile but there was something about him, or the car, that caused the border agents to be suspicious.

If anyone has ever gone through one of these border checkpoints, you know that most of the time you are just waived through. Occasionally you are stopped briefly and asked where you are coming from, where you are going, and if you have any produce in your car. Apparently this is all they need to decide whether or not they want to investigate further. The Border Patrol agents at checkpoints can stop and question anyone even if there is no reason to believe that there are any illegal aliens inside. The United States Supreme Court determined this. It was further ruled that the Border Patrol agents “have wide discretion” to request that the car, and the occupants, pull over to another inspection area for further questioning.

In this particular situation, when the man told the officers that he was a citizen, apparently they were suspicious and ran a record check. This revealed that he was actually a Mexican national and arrested him. This was all they needed to be able to then search his car. The search revealed several large cardboard boxes in both the backseat and trunk of the car. The large cardboard boxes in the back seat may have been what brought attention to the man and caused suspicion. It was discovered that 53 packages of cocaine were inside the boxes, which was estimated to weigh approximately 670 pounds. On the street, that would be worth around $6.7 million.

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Penal Code Section 496 makes it a crime to knowingly buy, sell, receive conceal or withhold property that has been stolen. The key word here is “knowingly”. In order for the prosecution to prove that a crime has been committed, they must be able to prove that you knew that the property was stolen when you receive or took possession of it.

To explain a little further, in California, the state must essentially show that the person receiving the property knew, or reasonably SHOULD have known, that the property was stolen. So, if someone buys something that has a value of $5,000.00 but was able to purchase it for $250.00, this would be a “red flag” and may provide evidence for the prosecution that the person knew or “should have known.”

So what are some of the ways the prosecution can prove someone knew that the property was stolen. Obviously, confessions or statements at the time of the arrest or when being questioned would help the prosecutions case. But, where there is no confession or incriminating statements, the prosecution relies on the circumstances surrounding the arrest. Suspicious activities may include:

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Being arrested and facing criminal charges is a traumatic experience but choosing the right lawyer can minimize the stress and anxiety one suffers while moving through the process toward a resolution. When trying to decide which lawyer is right for you, there are a few things to consider when making a decision.

1. Choose an attorney who is familiar with the local courts. Every courthouse in every county has it’s own procedures. I have been working out of the same courthouses for more than 20 years and have developed professional and trusting relationships with court staff, which is very valuable for an attorney when it comes to strategy. My more than 20 years of criminal law defense work in Orange County, has allowed me to create relationships with judges, district attorneys and court staff, as well as the knowledge of how each particular courtroom works. Knowing who to talk to has afforded me opportunities to get the most positive outcome for my clients.

2. Choose an attorney who will maintain close personal contact with you. Facing criminal charges can throw most peoples lives into a spin and the anxiety can be at times overwhelming. Being able to talk to your attorney when you are feeling most vulnerable is invaluable and can make the whole process a little less stressful.

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California is not doing enough to keep firearms out of the hands of the mentally ill, according to a state audit released on October 24. The breakdown is a result of the state’s failure to report a person’s mental health status to the Department of Justice (DOJ).

Why is this happening, especially in light of the ever-increasing acts of gun violence involving the mental ill, begs closer examination. The first step in looking at this issue more closely begins with the Superior courts around the state. When an individual is convicted of certain crimes, he or she loses the right to carry or possess or own a firearm. Crimes like domestic violence, restraining order violations and enumerated assault and gun possession and use offenses will cause revocation of the right.

Theoretically, the courts should automatically notify the state Department of Justice. But of the 34 courts surveyed, most weren’t even aware they had the reporting obligation, nor did they send notice of convictions to the Mental Health unit at the DOJ. Over a three-year period, 2,300 prohibited individuals did not get reported. Some courts did submit reports but they were incomplete in different ways.

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When we hear that someone has been arrested for burglary, we imagine someone breaking into a home, late at night while the occupants sleep, and stealing something. While the scenario described is a burglary under California law, you can be charged with burglary even if you don’t take anything.

Simply put, burglary is defined as someone entering another person’s property with the intent to steal something or, commit any other kind of felony once inside. Even if you don’t act on the intent, the fact that the property was entered initially with the intent to commit a theft or felony is enough to be charged with burglary.

There are two degrees of burglary and they are both considered felonies. Although, second degree burglary is a “wobbler” meaning is can be filed as a misdemeanor. Felony burglary is a serious crime with serious consequences if convicted. The punishment for a conviction of burglary may include fines, prison and payment of restitution to the victim.

Degrees of Burglary Described:

Second-degree burglary, as mentioned above, may be filed as either a misdemeanor or felony, and is committed when a person enters a commercial building with the intent to commit a felony or theft once inside.

First-degree burglary is a felony, and as you may have guessed, is the more serious of the two. This is when a person enters a residence with the intent to commit a felony or theft once inside.

For the prosecution to prove a burglary charge, it must be proven that the defendant entered the property without permission and had specific intent to commit a crime once inside. Absent the intent, the prosecution may be forced to change the charge to trespassing or drop the charges completely.

One defense to a burglary charge might be that the defendant had permission to enter the property. If the defendant had permission to be on the premises, it would be hard to prove burglary. If something had been taken, it could have been an after-thought. In other words, once inside, the defendant notices something he/she wants and decides at that moment to take. There was no intent to commit the crime prior to entering the premises. Remember, a necessary element to prove burglary is intent.

Intoxication may be a possible defense. There was no intent to commit a crime once inside but, in an intoxicated state, enters a dwelling.

Every case is different and the specific facts will dictate the type of defense your attorney will pursue.

The penalties, if convicted, will depend upon how the prosecution files the case. Whether it is filed as 1st degree burglary or 2nd degree burglary. A conviction for 1st degree burglary can carry a sentence of state prison for two, four or six years. A conviction for 2nd degree burglary could be up to one year in jail or three years in prison, depending upon how it’s filed. This in addition to fines and possible restitution to the victim.

There are situations where a court may grant probation rather than jail time. However, with a conviction for 1st degree burglary, the Court cannot grant probation unless it is in the interest of justice and there are unusual circumstances.

Hiring an experienced criminal defense attorney in the County where your case is pending is highly recommended as they will be familiar with the District Attorneys and Judges and will be in a better position to get the best possible outcome.

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Deferred Entry of Judgment, or DEJ, is part of Proposition 21, which was passed by California voters in 2000. DEJ is a sentencing alternative to the juvenile delinquency process. What it does is it allows minors who are charged with at least one felony to become eligible for a probation program. The minor must admit the charge(s) and successfully complete the DEJ probation and the Court will dismiss the case. Along with the dismissal, the Court will order the case sealed and the minor’s arrest is deemed never to have occurred.

Basic eligibility criteria for DEJ was established by Proposition 21 and if the minor meets the criteria, a hearing of held to determine whether the minor would benefit from DEJ. The benefits of DEJ are as follows:

1. It would provide immediate consequences for the minor’s actions and behavior. If the minor is not held accountable in some way for their actions, they may not realize the seriousness of the case and are therefore at risk for future problems.

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In California, Marijuana possession for sale is a felony. It doesn’t matter how much was sold, or whether or not the sale was witnessed. Law enforcement can base an arrest for sales on any or all of the following:

1) The amount of marijuana that was found;
2) The manner in which it is packaged;
3) Large amounts of cash;
4) The presence of a scale and or Baggies, which is typically used by drug dealers.

Any or all of the above would be enough for the district attorney to file formal charges. Law enforcement will almost always take the cell phone of someone they suspect to be selling marijuana and the district attorney can then use any information on that cell phone to further support the charges.

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.

In a recent case, an investigation lead by the Newport Beach Police Department resulted in the seizure of 300 marijuana plants and about $24,000.00 in cash, after searching several homes in Orange County, California. As a 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 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.

In this situation, there were several people involved, as well as several locations. This is an example of how crucial it would be to have an attorney who is experienced in not only criminal defense, but also, someone who 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.
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.

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In California, the definition of robbery is the taking of someone else’s property from the person’s body or immediate possession, when accomplished by force or fear. This is a felony offense, punishable by two to nine years in State Prison. To be convicted of robbery, the prosecution must prove:

1) You took property that didn’t belong to you;
2) You took property from another person’s possession or immediate presence;
3) You took the property against the person’s will;
4) You used force or fear and
5) You took the property with the intent to deprive the owner of it permanently or for such a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property.

Let’s take a look at an actual case to see whether or not the elements necessary are met. A couple was robbed at gunpoint while sitting in their car. According to authorities, while sitting in the back seat of their car, they were startled when a man appeared at the window, tapped on it and pointed a gun at them. He then demanded money from them. Fearing that they would be shot, the woman opened the door and handed her purse to the man. He then ran from the scene. In this case, all five of the elements appear to have been met. The defendant did take property that didn’t belong to him. The property being the woman’s purse. He took property from another person’s possession or immediate presence. Again the purse, which she handed directly to him. He took it against her will and used fear or force to take it. And, he did intend to deprive her of her property in that he had no intention of giving it back. At least this is what we can assume based upon the immediate information.

In California, Robbery is a Felony. However, the length of your sentence depends on whether you are convicted of 1st Degree Robbery or 2nd Degree Robbery.

1st Degree Robbery carries a sentence of three to nine years in State Prison.

2nd Degree Robbery carries a sentence of two to five years in State Prison.

If there is more than one victim, as in this case, you face conviction of, and punishment for, multiple counts of robbery.

Also, this man faces the possibility of sentence enhancements, along with the above penalties. Some sentence enhancements include:

1) Great bodily injury during a robbery,
2) Robbery for the benefit of, in association with or at the direction of a criminal street gang and,
3) The use of a gun during the robbery. An additional ten years in prison can be imposed if you use a gun, twenty years for firing a gun and 25 years to life for killing or seriously injuring another person with a gun while committing the crime of robbery.

There are legal defenses to robbery. Some of the more common ones are:

1) You didn’t intend to take the property;
2) No force or fear was used;
3) Claim of Right;
4) Mistaken Identity; and
5) False Accusations.

There are a variety of situations in which these defenses can and should be used. A good Criminal Defense Attorney, specializing in Robbery will know how to use these defenses to get the best possible outcome for his client.

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