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What is Entrapment?
An affirmative defense is a legal argument that is raised by the defendant. The basic premise of an affirmative defense is that even if all the elements of the crime have been proved by the prosecution, the defendant is still not guilty because of the affirmative defense. There are different types of affirmative defenses for California criminal cases. Entrapment is a type of affirmative defense.
Entrapment Defined
According to Wikipedia, entrapment is “conduct by a law enforcement agent inducing a person to commit an offense that the person would otherwise have been unlikely to commit.” In other words, the defendant never would have committed the crime if the officer had not pressured or coerced them into committing it. In California, the test for entrapment is objective rather than subjective. Under an objective standard, the issue is whether the officer’s conduct would have caused a normally law-abiding citizen to commit the crime. Other jurisdictions use a subjective standard which focuses on the defendant’s state of mind at the time of the offense.
Entrapment is defined by Calcrim 3408 (California Criminal Jury Instructions) as follows: “Entrapment is a defense. The defendant has the burden of proving this defense by a preponderance of the evidecne. This is a different standard from proof beyond a reasonable doubt. To meet this burden, the defendant must prove that it is more likely than not that he/she was entrapped. A person is entrapped if a law enforcement officer engaged in conduct that would cause a normally law-abiding person to commit the crime. Some examples of entrapment might include badgering, persuasion by flattery or coaxing, repeated and insistent requests, or an appear to friendship or sympathy. Another example of entrapment would be conduct that would make commission of the crime unusually attractive to a normally law-abiding person. Such conduct might include a guarantee that the act is not illegal or that the offense would go undetected, an offer of extraordinary benefit, or other similar conduct. If an officer simply gave the defendant an opportunity to commit the crime or merely tried to gain the defendant’s confidence through reasonable and restrained steps, that conduct is not entrapment. In evaluating this defense, you should focus primarily on the conduct of the officer. However, in deciding whether the officer’s conduct was likely to cause a normally law-abiding person to commit this crime, also consider other relevant circumstances, including events that happened before the crime, the defendant’s responses to the officer’s urging, the seriousness of the crime, and how difficult it would have been for law enforcement officers to discover that the crime had been committed. When deciding whether the defendant was entrapped, consider what a normally law-abiding person would have done in this situation. Do not consider the defendant’s particular intentions or character, or whether the defendant had a predisposition to commit the crime. If a defendant has proved that it is more likely than not that she/she committed the crime because they were entrapped, you must find the defendant not guilty of the crime.”
Entrapment is a Difficult Defense.
Although entrapment is a common term, it is a difficult defense to establish because most people don’t believe they could be so easily pressured into committing a particular crime. Examples of situations where entrapment was not found — the police using a mature-looking minor to buy alcohol in a store. There was no pressure for the store owner to sell alcohol to the minor so no entrapment existed. Prostitution is another type of crime where defendants falsely believe they have an entrapment defense. An undercover officer who simply asks for sex or offers sex is not pressuring anyone into committing a crime. On the other hand, an example of entrapment might be the police asking a drunk person to step outside of his home during a domestic disturbance, and then arresting him for drunk in public. In that situation, any normal person would obey a police order to step outside, and therefore the defendant’s being in a public place may be a result of entrapment. It’s important for an experienced lawyer to sift through the facts to see whether entrapment is a possible defense.
What is a Necessity Defense?
An affirmative defense is a legal argument that is raised by the defendant. The basic premise of an affirmative defense is that even if all the elements of the crime have been proved by the prosecution, the defendant is still not guilty because of the affirmative defense. There are different types of affirmative defenses for California criminal cases.
Necessity is an affirmative defense. The premise behind a necessity defense is that the defendant committed the crime because it was necessary to avoid a greater evil. For example, if a defendant is drunk but is friend needs urgent medical care, the defendant may choose to drive his friend to the hospital. The defendant is committing the crime of DUI, but it was necessary to do so in order to save his friend’s life. Necessity defenses are rare, however, because of all the elements required.
Elements of Necessity Defense
The defendant is not guilty of the crime if he/she acted because of legal necessity. In order to establish this defense, the defendant must prove each of the following elements by a preponderance of the evidence:
Other Issues in a Necessity Defense
Although a necessity defense is similar to a duress defense, there is an important distinction between these two concepts. With a necessity defense, the threatened harm is in the immediate future, which permits the defendant to balance alternative courses of conduct. A necessity defense does not negate an element of the crime, but rather represents a public policy decision not to punish a defendant because of his choice to avoid a greater evil.
The duress defense, however, does negate an element of the crime — the defendant does not have the time to form the criminal intent because of the immediacy of the threatened harm. The courts have upheld economic necessity as a valid defense. For example, a homeless man may assert an economic necessity defense to violating an ordinance prohibiting sleeping in a public park. Lack of sleep is arguably a significant evil to be avoided and lack of economic resources prevented any other legal alternative.
What is an Arraignment?
The arraignment is usually the very first court appearance in a criminal case. This is where defendants learn of the charges or crimes they are facing. The charges are listed in a document called a “Complaint”. This is the stage where defendants enter a plea to the charges.
There are three types of pleas – Not Guilty, Guilty or No Contest. A No-Contest plea is similar to a Guilty Plea. Defendants will also be informed of their rights at an arraignment. Basic rights include the right to an attorney (including an appointed attorney if someone doesn’t have the money to hire their own attorney), the right to reasonable bail, and the right to a speedy and public trial by jury.
Arraignments also start the clock on certain hearings that have to occur within a certain time. For example, in a misdemeanor case, defendants who choose to have a speedy trial must have their trial within 30 or 45 days of their arraignment, depending on whether the defendant is in custody or not. In felony cases, a speedy preliminary hearing must occur within 10 court (business) days or 60 calendar days of an arraignment. It is possible to postpone the arraignment as well, and that will then postpone the time limits.
A second arraignment will occur in felony cases after a defendant loses a preliminary hearing. This second arraignment is also known as the arraignment on the information because the document that lists the criminal charges is called an “Information”. At this second arraignment, a defendant must also enter a plea (or postpone the arraignment). And the right to a speedy felony trial must commence within 60 days of the second arraignment, if a defendant exercises that right.
What to Expect at the Arraignment?
Your lawyer will most likely enter a plea on your behalf. Usually, the plea will be Not Guilty, although there are some circumstances where a lawyer might choose to have their client plead Guilty from the very beginning. The lawyer will also discuss bail with the court and the prosecutor. In misdemeanor cases, defendants are usually released on their Own Recognizance (which basically means bail is zero).
However, there are some misdemeanor cases where a court may require bail (such as multiple DUIs or probation violations) or the court may require conditions such attending AA classes or wearing a GPS device in lieu of bail or in lieu of higher bail. For example, at a felony DUI case arraignment that Fred Thiagarajah recently appeared on, the court initially wanted $100,000 bail, but Mr. Thiagarajah convinced the court to allow $25,000 bail with the condition that the defendant wear a SCRAM bracelet while the case was pending.
If bail is not already posted, it’s important to have a bail bondsperson on standby to post bail if necessary. The court will also consider imposing a protective order (aka restraining order) on the defendant in cases involving domestic violence or child endangerment. It’s important for defendants to discuss this issue with their lawyer ahead of time so they are prepared for this possibility and the ramifications of having a protective order issued against them.
Make the Right Choice It’s important to choose a lawyer who is prepared for all stages of the case. Matters like bail and restraining orders can affect a defendant’s freedom from the very beginning and a lawyer who is familiar with what to expect and how to react will be more likely to ensure their clients’ freedom.
What Does a Background Check Reveal?
Many defendants wonder what a background check will reveal in cases where an arrest occurred, but charges were never filed or in cases where charges were dismissed or expunged. First, keep in mind that once a person is arrested or charged with a crime, that information goes on their RAP sheet and RAP sheets are permanent documents that are maintained by the Department of Justice (DOJ) in Sacramento.
Even when a crime is dismissed pursuant to Penal Code section 1203.4 (aka expunged), the conviction isn’t erased from the rap sheet. However, RAP sheets are confidential documents so technically, the general public does not have access to them. Employers are not allowed to ask on applications whether a person has been arrested or charged with a crime according to California Labor Code section 432.7 (except employers are allowed to ask whether a defendant is presently charged with a crime).
Employers are only allowed to ask about convictions. Prior to the emergence of the internet, employers would normally do a background check by sending a request to the DOJ for a record of convictions. The DOJ will then send confirmation as to whether someone has a conviction. In cases where charges were never filed or later dismissed, DOJ will send a response that the defendant has no convictions (assuming the defendant doesn’t have any previous record).
DOJ will not reveal whether a person has been arrested or charged with a crime, because that information is confidential and cannot be considered by an employer. Furthermore, in cases where a crime has been expunged, DOJ would send the same response – that the defendant has no convictions. Although the official mechanism for background check is to request information from the DOJ, unofficially, a defendant’s arrest information or case information may be found online.
The internet contains a large amount of information, including confidential details of a person’s arrest or criminal charges. A Google search could reveal information that is supposed to be confidential and there’s nothing that can be done about that by a lawyer (unless the information is inaccurate). There are many companies that use the internet to collect information about arrests, charges and convictions and sell that information to provide background checks to employers.
Examples of private background check companies include Employment Screening Resources or Hire Right. Furthermore, information on the internet may be inaccurate or outdated, and potential employers may receive the wrong information. Hopefully, in those situations, the employer provides the information to the employee and the employee has the chance to let their employer know that the background check is inaccurate, and that they were not guilty of that crime, and that the crime was never filed or subsequently dismissed.
However, the point is that sometimes an employer may receive inaccurate information or information that was supposed to be confidential. A defendant has the right to see to their own RAP sheet, and beginning in 2021, private attorneys are allowed to request RAP sheets on behalf of their clients in post-conviction cases, pursuant to Penal Code section 11105.
In a regular criminal case, a defense lawyer can get their client’s RAP sheet from the DA or prosecuting agency. However, once a case is over, the DA’s office has no obligation to provide a current RAP sheet to a defendant or a defense lawyer. So, when a defendant doesn’t know what’s on their RAP sheet, they must order their own RAP sheet from the California Department of Justice (DOJ).
Prior to 2021, the defense lawyer couldn’t request the RAP sheet if there was no pending case. A client would have to complete a Live Scan at a police agency and the Live Scan application would be sent to the DOJ and then eventually the RAP sheet would be mailed to the client. This process should only take a couple weeks, but because of government delays, the process can take a couple months or more.
Now, the defense attorney can email a request directly to the DOJ and get a RAP sheet emailed back within a few days. However, the law states that only attorneys who are actively representing clients in post-conviction matters can submit these requests. That means an attorney can’t submit these requests for potential clients. The client must retain the attorney before the attorney can submit the request. Attorneys can use a BCIA-8700 form to make the request.
Bail Overview
Defendants have the right to bail in all criminal offenses, except capital offenses, pursuant to Penal Code sections 1270.5 and 1271. Specifically, Penal Code section 1270.5 states “ A defendant charged with an offense punishable with death cannot be admitted to bail, when the proof of his or her guilt is evidence or the presumption thereof great.
The finding of an indictment does not add to the strength of the proof or the presumptions to be drawn therefrom.” Penal Code section 1271 states “If the charge is for any other offense, he may be admitted to bail before conviction, as a matter of right.” Each county has their own uniform bail schedule that sets a fixed amount of bail for a specific charge, pursuant to Penal Code section 1269b(c).
When a defendant is arrested, law enforcement can either release a defendant on their own recognizance (O.R.) or may accept bail in the amount fixed by the warrant or schedule for bail, pursuant to Penal Code section 1269b(a). Once a person is released O.R. or bail is accepted, notice is given to the defendant to appear in court at designated time and place. If a defendant appears before a court, the judge may set bail if it hasn’t already been set or modify bail if it has been set or even if it has already been posted.
A judge can also release a defendant on their own recognizance without requiring any bail. If bail is required, bail will usually be set in accordance with the warrant or countywide bail schedule, but a court has the discretion to increase or decrease the scheduled bail. Scheduled bail takes into account not only the seriousness of the charge, but also enhancements. In certain drug offenses, a large quantity of drugs will also drive up the scheduled bail.
If a defendant is arrested without a warrant for any non-capital felony or for misdemeanor violation of a domestic violence restraining order (Penal Code section 273.6), a peace officer may prepare a declaration requesting higher bail, pursuant to Penal Code section 1269c. The declaration must set forth the facts and circumstances that support this request.
In these situations, a judge may raise bail without a bail hearing. Except for offenses listed in Penal Code section 1270.1(a), a defendant may also request lower bail or to be released O.R. The judge must set bail in an amount that is sufficient to ensure the defendant’s appearance or to ensure the protection of a domestic violence victim or family member of a domestic violence victim, and the judge must set bail on appropriate terms and conditions within the judge’s discretion.
If there is no order changing bail within 8 hours of booking, then the defendant shall be entitled to scheduled bail. The defendant’s request for lower bail may be made personally, or through a defendant’s attorney, friend or family member. A judge can release a defendant on his own recognizance in any non-capital offense.
In fact, a court is required to release a defendant O.R. for any misdemeanor offense, unless the court makes a finding on the record, in accordance with Penal Code section 1275, that being released O.R. would compromise public safety or not reasonably assure the appearance of the defendant as required. Public safety is the primary consideration. If the court makes this finding, then the court shall set bail and specify conditions, if any, for the release of the defendant.
A judge has the authority to raise or lower bail pursuant to Penal Code section 1289. If bail is raised, then the court can take the defendant into custody until the higher bail is posted. If a defendant seeks a reduction in bail, then notice must be provided to the District Attorney’s office. In certain situations, if a court chooses to stray from the scheduled bail, either by raising it or lowering it, or if a court chooses to release a defendant O.R., then a hearing in open court is required.
Hearings are required for any strike offense, except residential burglary in violation of Penal Code section 460(a), Penal Code sections 136.1(c), 243(e)(1) (domestic violence without injury), 262, 273.5 (domestic violence with injury), some violations of 273.6 (violation of a domestic violence restraining order), felony 422 (criminal threats), or 646.9 (stalking). Pursuant to Penal Code section 1270.1(a)(4). only certain violations of Penal Code section 273.6 qualify – where a defendant has made threats to kill or harm the protected party, has engaged in violence against the protected party, or has gone to the residence or workplace of the protected party.
At the required hearing, the court will consider evidence of past court appearances, the maximum potential sentence and the danger to other persons. Potential danger to other persons, including threats and any past acts of violence, ties to the community and the ability to post bond must be considered by the court before making a determination for a defendant to be released on their own recognizance.
Whenever a defendant is detained in custody on a criminal charge prior to conviction because they have not been able to post bail, that defendant is entitled to an automatic bail review by the judge, pursuant to Penal Code section 1270.2. That hearing shall be held within 5 days from the time bail is set, but a defendant may waive review this review.
For any bailable offense, a court may require bail at the arraignment on the complaint, when a defendant is held to answer after a preliminary examination or after indictment, pursuant to Penal Code section 1273. Furthermore, a defendant can be issued bail in certain situations after conviction if an appeal is pending.
Pursuant to Penal Code section 1275, the primary factors that a court must consider in setting bail are the protection of the public, the seriousness of the offense charged, the defendant’s criminal history, and whether the defendant is a flight risk. Of all these factors, public safety is the most important. With respect to seriousness of the offense, the court shall consider the alleged injuries to the victims alleged threats to the victim or witness, any alleged use of a firearm or other deadly weapon in the commission of the charged crime, and the alleged use or possession of controlled substances by the defendant.
Furthermore, with respect to drug offenses, the court shall consider the alleged amounts of controlled substances involved in the commission of the offense and whether the defendant is currently released on bail for another drug offense. According to Penal Code section 1275(c), a court cannot reduce bail to an amount less than the bail schedule for a defendant charged with a strike, unless the court makes a finding of “unusual circumstances” with supporting facts on the record. “Unusual circumstances” does not include the defendant’s perfect attendance at prior court appearances or lack of new offenses.
Bail will not be accepted unless the judge finds that no portion of the bail was paid with money that was feloniously obtained, pursuant to Penal Code section 1275.1(a). Pursuant to Penal Code section 1275.1(b), a hold can be placed on the defendant’s release if a peace officer or prosecutor files a declaration under penalty of perjury setting forth probable cause to believe that the source of the bail was feloniously obtained, or if the judge has probable cause to believe that the source of the bail was feloniously obtained.
A prosecutor will have absolute civil immunity for any such declaration. Any such declaration must be acted upon within 24 hours by the court or the defendant must be released from custody as soon as bail is posted, pursuant to Penal Code section 1275.1(g). Any such declaration will be provided to the defendant and his defense attorney, pursuant to Penal Code section 1275.1(d). According to Penal Code section 1275.1(c), once a judge has established that probable cause exists to believe part of the source of bail was feloniously obtained, the burden shifts to the defendant to prove, by a preponderance of the evidence, that no part of the bail was feloniously obtained.
If the defendant meets that burden, any hold shall be released. Nothing in this section will prevent a defendant from obtaining a loan for bail, so long as repayment of the loan does not use funds that were feloniously obtained, pursuant to Penal Code section 1275.1(e). In 2017, the California State Legislature attempted to pass a new law that eliminated money for bail as we know it today.
The new system would have involved releasing most people on ankle bracelets and keeping some people in custody. However, the bill has run into stiff opposition from the bail industry and did not pass the State Assembly. Many lawmakers, including California Chief Justice Tani Cantil-Sakauye, are urging reform to the system so changes may be coming in the future.
The first stage of a criminal case is the arraignment.
This is the very first appearance in court, where a defendant officially learns what the charges are. The charges are listed in a document called the “complaint”. Bail conditions and amount are often set at the arraignment. The defendant is given the option to plead “guilty” or “not guilty”. If a defendant pleads “not guilty”, then the judge will continue the case to to another court date known as the pretrial hearing. In some counties, the District Attorney’s office will have representatives at the arraignment court to begin negotiations on a case.
In other counties, negotiations can only occur at the pretrial stage, after a defendant pleads “not guilty”. Before the judge sets another date for the pretrial appearance, the judge will ask if the defense is willing to “waive time”. In misdemeanor cases, a defendant has right to a trial within 45 days of the arraignment, unless the defendant chooses not to exercise that option. In felony cases, a defendant has the right to preliminary hearing within 10 court days or 60 calendar days of the arraignment, unless the defendant chooses to give up those options.
Giving up the option of having a speedy trial or preliminary hearing is known as “waiving time”. Attorneys will often advise their clients to “waive time” because it might be advantageous to postpone the trial or preliminary hearing. Pretrial Once a defendant pleads “not guilty”, the defense attorney meets with the prosecutor in court to discuss the case. This stage is known as a pretrial appearance. There can be many pretrial appearances — as long as it takes for the defense attorney and the prosecutor to resolve the case.
However, if no resolution is reached, then misdemeanor cases are set for trial and felony cases are set for preliminary hearing. Post-Preliminary Hearing In felony cases, after the preliminary hearing, a second arraignment occurs. At this second arraignment, the District Attorney’s office files a document called the Information.
The Information is similar to the “complaint” and it contains all the charges against the defendant. Again, the defendant enters a plea of “guilty” or “not guilty”. If the defendant pleads “not guilty”, then the court will set a trial date with an interim “trial readiness conference” so that both sides can meet to determine if they are ready for trial.
Trial
A defendant who does not accept either the District Attorney`s offer to resolve the case or the court`s offer to resolve the case must eventually have a trial. At trial, the prosecution must prove that the defendant is guilty “beyond a reasonable doubt” for every charge alleged. Normally, the prosecution must prove their case before a jury of twelve people and these twelve people must unanimously agree as to whether the defendant is “guilty” or “not guilty”. However, if the defendant does not want a jury trial, he/she can elect to have a court trial or bench trial, where only a judge hears and decides the evidence.
Sentencing
If a defendant is convicted, either by pleading guilty or conviction after trial, then there can be a separate hearing to determine the defendant`s sentence (or punishment). If the crime involved a victim, then the victim has the right to be present at the sentencing and to give a statement to the judge. At these proceedings, the prosecutor and the defense attorney will each argue for what they believe is the appropriate sentence.
The judge will consider the facts of the case, as well as the defendant`s prior record (if any), input from the victim, and any other relevant information, before determining the sentence. Appeal If a defendant was unfairly convicted, either by plea or trial, then the defendant can appeal the conviction.
What is Custody Credit?
When a defendant is sentenced to custody in county jail, he receives credit for good behavior, pursuant to Penal Code section 4019. For a long time, a defendant received 2 days of credit for every 4 days of actual custody. That meant if a defendant spent 8 days of actual time in jail, he would receive an extra 4 days of custody credits, for a total of 12 days served. The result was that defendants would normally serve about 2/3 of their actual sentence.
How have Custody Credits Changed?
The law regarding custody credits has become confusing because it has changed so often. The first change was on January 25, 2010. At that time, the law became more lenient and defendants received day for day credit. That means for every day of actual custody, a defendant received a day’s credit for good behavior.
If a defendant spent 8 days of actual time in jail, he would receive an extra 8 days of “4019 time” for a total of 16 days served. However, there were some exceptions to this rule. The new law didn’t apply to sex offenders, people whose current crime was a serious felony or people who had prior convictions for serious or violent felonies (aka strikes).
Those people still had to serve 2/3 of whatever sentence they received. On September 29, 2010, the law changed again and reverted back to the original custody credit time. For those people who spent time in custody from January 25th and September 28th, that time period received day for day credit.
Finally, on October 1, 2011, the law changed again. Now anybody whose crime was committed after October 1, 2011, receives 2 days of credit for 2 actual days of custody, which is basically the 1/2 time rule. This new law applies to all defendants, regardless of their current charges or past criminal history.
However, it only applies to defendants whose crimes were committed AFTER October 1, 2011. This law also applies to anybody in county jail, whether it’s a misdemeanor, felony with probation or felony imprisonment through Penal Code section 1170(h). But it only applies to people whose crime OCCURRED AFTER October 1, 2011.
What Constitutes a Day in Custody?
According to Government Code section 6806, “A day is the period between any midnight and the midnight following.” The term “day” is not defined as 24 hours. A person in custody from 11 p.m. to 1 a.m. is in custody for two days. “The law takes no notice of fractions of a day. Any fraction of a day is deemed a day unless in a particular case it is necessary to ascertain the relative order of occurrences on the same day.” (Municipal Improvement Co. v. Thompson (1927) 20 Cal.629, 632).
Can Custody Credits be Applied towards Fines?
Yes. Penal Code section 2900.5 requires that all days in custody be credited toward the term of imprisonment or towards the fine at a rate of at least $30/day, or more in the discretion of the judge. If you have any questions regarding the calculation of credits, please call us and we’re happy to explain these concepts to you.
The Right Lawyer
Choosing the right criminal defense lawyer will be the most important decision someone can make when a facing criminal charges. You need an attorney who will listen to your side of the story carefully, who will evaluate the evidence thoroughly, who will negotiate with the judge and the District Attorney’s office skillfully, and who will fight in trial aggressively. You need an attorney like Fred Thiagarajah.
As a former Deputy District Attorney, Fred Thiagarajah has the negotiating skills and trial experience necessary to get the best results for his clients. For an example of his work, please see his case results and read his client testimonials. With offices in Newport Beach, Beverly Hills and Riverside, Fred Thiagarajah has criminal defense experience in Orange, Los Angeles and Riverside Counties.
UPDATE – The Trump administration has stopped accepting DACA applications, although it is still accepting applications from hurricane-ravaged Puerto Rico and the US Virgin Islands on a case by case basis. The Trump administration has also indicated that the DACA Program will terminate as of March 6, 2018, unless Congress passes immigration reform legislation that addresses this issue.
History of Dreamers and DACA:
On June 15, 2012, the Obama administration announced that it would not deport certain undocumented persons (aka illegal aliens) who entered the US as children. The undocumented persons who would receive this benefit are the same people who were the subject of the controversial DREAM act.
The DREAM act was a proposed law that would provide permanent residency to certain undocumented persons who came here as children. Although the DREAM act never became law, these undocumented persons who came here as children as still known as “Dreamers”. The Obama administration did end up choosing to defer any action to deport these people, and that program became known as the Deferred Action for Childhood Arrivals, aka DACA.
Although deferred action does not allow an undocumented resident to become a legal resident, it does allow undocumented residents to obtain work authorizations from the government so they can legally work in the United States, obtain driver’s licenses, enroll in college and pay taxes. The DACA permit could be renewed every two years. Not everyone can qualify for deferred action.
In order to qualify, the individual must be: 30 years old or younger have entered the US at younger than 16 years old physically was in the US on June 15, 2012 and has continuously resided here for the 5 years before that be in school or graduated from high school or obtained a GED or honorably discharged from the military (including coast guard) not pose a threat to public safety or national security not been convicted of a felony, a significant misdemeanor or multiple misdemeanors
The last two conditions are important in terms of criminal cases. Felony refers to any crime where the maximum punishment is greater than one year in custody which includes all felonies under California law. Significant misdemeanor refers to any misdemeanor that involves: violence, threats, or assault, including domestic violence; sexual abuse or exploitation; burglary, theft, or fraud; driving under the influence of alcohol or drugs; obstruction of justice or bribery; unlawful flight from arrest, prosecution, or the scene of an accident; unlawful possession or use of a firearm; drug distribution or trafficking; or unlawful possession of drugs.
Multiple misdemeanors refer to three or more non-significant misdemeanors that did not occur at the same time or arise out of the same set of scheme or set of facts. A person’s criminal history, including arrests and dismissed charges, can be taken into account in determining whether a person poses a threat to public safety.
Examples include gang membership and participation in criminal activities. Although technically, juvenile adjudications are not “convictions” as defined by California law, the Department of Homeland Security (“DHS”) has yet to decide whether juvenile adjudications will be treated like adult convictions under “Deferred Action”.
It is important for any criminal lawyer to be aware of these guidelines in order to give the negotiate the best deal that does not involve immigration consequences.
Deportation and Denial of Admission (Inadmissibility)
When a non-citizen is convicted of a crime in California, the conviction can result in immigration consequences. The two types of immigration consequences are deportation and denial of admission or inadmissibility. Deportation is the forced removal of the individual from our country. If a defendant were convicted of a deportable crime, he could be placed in removal proceedings (a type of immigration hearing) and an immigration judge could order his deportation.
Denial of admission does not result in an automatic or immediate removal but instead has two long-term consequences – (1) a defendant cannot change or renew their status in this country and (2) the defendant becomes ineligible to re-enter the country. For example, if a defendant was here on a H1-B visa and was convicted of a crime that made him inadmissible, then he would not be able to renew his visa and he would not be able to obtain permanent residency.
If this defendant cannot renew his visa, then when his visa expires, he will be in the country illegally. Furthermore, if this defendant left the country, even while his visa was still valid, he would not be allowed to re-enter the United States if he has a conviction that makes him inadmissible. Obviously, a non-citizen wants to avoid both deportation and denial of admission.
However, a defendant who is a permanent resident might be able to plead to a crime that results in inadmissibility under certain situations, whereas a defendant who is here on a visa must avoid both deportation and becoming inadmissible.
Regardless of whether a defendant is here on a visa or is a permanent resident, a conviction for a crime that makes one inadmissible will prevent the defendant from leaving and re-entering the country legally. However, a visa holder who becomes inadmissible will at some point in time be staying in this country illegally.
Every visa must come up for renewal and when that time comes, the defendant will either have to leave the country permanently or stay here illegally. However, a permanent resident can stay here forever without changing their status. A permanent resident who is convicted of a crime that makes them inadmissible will never be able to become a US citizen, but they can still legally stay in the United States for the rest of their life.
Ideally, a permanent resident should have a resolution that avoids both deportation and becoming inadmissible, but they have more options than a defendant who is here on a visa.
Common crimes in California that result in deportation include:
1) Any crime of moral turpitude where the maximum sentence is one year or more and the crime was committed within 5 years of the defendant’s last admission into this country;
2) Any two crimes of moral turpitude not arising out of single scheme of criminal conduct;
3) Any aggravated felony involving murder, rape, sexual abuse of a minor, drug trafficking, firearm trafficking, ex-felon in possession of a firearm, destructive devices or explosive materials, fraud where the loss exceeded $10,000, owning a prostitution business and some types of drug possession;
4) Any aggravated felony where the actual sentence was 1 year or more and the crime involved a violent crime, Penal Code sections 487 (grand theft) or 459 (burglary) or 496 (possession of stolen property), bribery, forgery, perjury, document fraud, obstruction of justice, cars with altered VINs;
5) Firearm offenses.
6) Domestic violence or stalking.
7) A violation of a domestic violence restraining order – no conviction required!
8) Failure to register pursuant to Penal Code section 290; 9) Drug offenses except for possession of less than an ounce of marijuana and possibly possession of drug paraphernalia.
However, relief from deportation may be possible for drug offenses that are not aggravated felonies. Common California crimes that result in denial of admission or inadmissibility include:
1) Any crime of moral turpitude (including domestic violence). However, there is a “Petty Offense” exception as well as a “Youthful Offender” exception to this rule.
2) Any set of multiple convictions where the total sentence equals 5 years or greater.
3) Any drug offense except possession of less than an ounce of marijuana.
4) Drug trafficking – no conviction required!
5) Prostitution as it relates to pimps and prostitutes, but not clients – no conviction required!
Some crimes have immigration consequences regardless of the sentence, some crimes only have immigration consequences if a particular sentence is given and some crimes only have immigration consequences if the factual basis is written in a particular way.
It is incredibly important to have a criminal defense attorney that is intimately familiar with the immigration consequences of all crimes and sentences, so that the attorney can properly advise non-citizens about their immigration issues and can negotiate plea bargains that avoid immigration consequences.
The attorneys at the Law Offices of Fred Thiagarajah pride themselves on their in-depth knowledge of immigration consequences for criminal convictions and can help non-citizens negotiate the right deal to allow them to stay in this country safely. The attorneys at the Law Offices of Fred Thiagarajah are the Right Choice for Representing Noncitizens.
California District Attorneys
In every criminal case, there is a government agency that exists to prosecute the Defendant. In state courts, the vast majority of crimes are prosecuted by District Attorney offices. There are a few places where misdemeanor crimes are prosecuted by the local city attorney`s office.
In those places, the City Attorney`s office functions exactly like the District Attorney`s office. Only the District Attorney`s office can charge misdemeanors and felonies. If you were arrested by the police for a crime, the officer may say that he/she is arresting you for a misdemeanor or a felony, but that doesn’t mean that you will be charged with that crime.
The police report is forwarded to the District Attorney`s office and then an individual Deputy District Attorney decides what charges to file against you. Oftentimes, the District Attorney`s office will follow the suggestions of the police report, but they have the power to reject a case, or file less or more charges in each case. Infractions, however, are usually filed by the police agency directly with the courts, and the District Attorney`s office usually does not get involved with infractions.
In criminal cases involving misdemeanors and felonies, a Defendant should always hire an experienced criminal defense attorney to represent them. Representing yourself is never a good idea. Deputy District Attorneys are trained prosecutors who will not show sympathy for people representing themselves. They will prosecute you to the best of their ability (as I did when I was a former prosecutor) and if you do not know what you are doing, you will end up with a terrible resolution to your case.
In fact, I don`t even like representing someone after they’ve represented themselves, because they will have said all the wrongs things to the prosecutor, and it will be much harder to re-negotiate the case.
Diversion is the process whereby a defendant can make a deal to have his or her case dismissed upon agreeing to certain penalties ahead of time. Diversion can either be done informally through the prosecutor’s office or formally through the court.
Diversion with the Prosecutor
Diversion is informal with the prosecutor because there is no specific law that governs diversion with the prosecutor. The prosecutor can agree to any terms and dismiss any charge or charges. There are no limits to what the prosecution can agree to but most prosecutors won’t dismiss serious crimes or crimes by people with extensive criminal records.
Most prosecutors will only agree to diversion for misdemeanor crimes, although in rare cases, a prosecutor may agree to diversion for a felony. Sometimes, prosecutors may require that a defendant plead guilty before diversion is allowed – but then the defendant will be allowed to withdraw their guilty plea later before the case is dismissed.
Other times, the prosecutor may allow a defendant to enter diversion without a guilty plea. Whether a defendant pleads guilty, the terms of the diversion and the length of the diversion are all things that can be negotiated – but it is entirely up to the prosecutor whether to agree or not.
Misdemeanor Diversion with the Court
Diversion with the court is a formal process because there is a specific law that authorizes a judge to accept diversion and there are specific rules that must be followed. The court is only allowed to offer diversion through Penal Code sections 1001.95 to 1001.97.
The most important thing to note is that only misdemeanors can be diverted and there are exceptions. DUIs, any domestic violence crime and sex offenses are not allowed diversion. The penalties can be negotiated but the courts usually require a $150 administrative fee when diversion is allowed. Also, restitution is a required part of court diversion. A defendant never has to plead guilty for court diversion.
The length of time for court diversion cannot exceed 24 months but is usually anywhere from 3 months to a year. One advantage to court diversion is that once it is completed successfully, the case is not only dismissed, but is also sealed – which means nobody can access the court’s file without a court order. Even a defendant cannot access his or her own sealed case file without a court order.
Military Diversion
Another type of diversion is military diversion which is allowed under Penal Code section 1001.80. This process allows defendants to have their misdemeanor crimes dismissed if they can prove that their service in the military resulted in PTSD, sexual trauma, traumatic brain injury, substance abuse / alcohol abuse or mental health issues, and that this condition contributed to their commission of the crime.
For example, if a defendant can prove that service in the military led them to abuse alcohol, and then later they picked up a DUI, the defendant could request military diversion for the DUI.
Military diversion obviously only applies to people who currently serve or have previously served in our armed forces. Service in another country’s armed forces does not count. Furthermore, proof is required to show a nexus between military service and the crime. A defendant can’t just claim out of the blue that he had a drinking problem in the military.
A defendant might have to show medical records or present some other kind of evidence establishing the condition was a result of military service. If diversion is allowed, a defendant would usually have to complete a lengthy rehabilitation program before a case is dismissed. One advantage to military diversion is that it allows dismissal of any misdemeanor crime including DUI.
Mental Health Diversion
Yet another type of diversion is mental health diversion which is authorized under Penal Code section 1001.36. This process allows a defendant to have their crime dismissed if they can prove that they suffer from a certain type of mental health condition and that condition contributed to the commission of the crime. Any crime – misdemeanor or felony – can qualify for mental health diversion but there are exceptions. Murder, manslaughter and sex offenses will not qualify (although indecent exposure will qualify). There are very specific criteria for mental health diversion.
Most counties have courts designated for mental health diversion and may have other procedural guidelines specific to their counties before a defendant is allowed mental health diversion. Mental health diversion
Regardless of the type of diversion allowed, a defendant is not allowed to pick up any new crimes while on diversion. Doing so can result in termination of the diversion program. Furthermore, almost all diversion programs require restitution.
Certain vehicle code offenses carry points with the DMV. Many infractions such as speeding or unsafe lane change can carry one point. There are some offenses, mostly misdemeanors and felonies, that are two point violations.
California Vehicle Code section 12810 specifies which crimes result in a two point violation. The following crimes all require a two point violation: — Hit and Run in violation of Vehicle Code section 20001 or 20002 — DUI or DUI with injury in violation of Vehicle Code section 23152 or 23153 — Vehicular Manslaughter in violation of Penal Code section 191.5(b) or 192(c) — Evading Arrest in violation of Vehicle Code section 2800.2 or 2800.3 — Speeding in excess of a 100 mph in violation of Vehicle Code section 22348.
This crime is one of the few infractions that result in a two point violation. — Reckless driving in violation of Vehicle Code section 23103 — Speed Contest or Exhibition of Speed in violation of Vehicle Code section 23109(a) or 23109(c) — Driving on a Suspended License in violation of Vehicle Code section 14601.
A violation of Vehicle Code section 14601 can be a misdemeanor or infraction and the two point violation results from either type of conviction.
The Driver’s License Compact is an interstate compact that allows 46 states of the United States, plus the District of Columbia, to share driver’s license and traffic violation information, including DUI information, with each other.
Traffic violations in other states can be treated as violations a person’s home state, although non-moving violations are not meant to be shared (for example tinted windows). And more importantly, a driver’s license suspension in one state can lead to a driver’s license suspension in all of the other states in the Driver’s License Compact.
The purpose of this Act was to prevent dangerous drivers from simply going to another state to get their driver’s license, after it was suspended in their home state. The Driver License Compact’s motto is “One Driver, One License, One Record.” The four states that are not members of the Driver’s License Compact are Georgia, Michigan, Tennessee and Wisconsin. For the full text of the Driver’s License Compact, click here.
Most immigration consequences stem from a conviction but in some cases, even an arrest can trigger immigration consequences. A DUI charge, even without a conviction, can trigger revocation of a non-immigrant visa such an F-1 student visa or H-1 employment visa.
Under recent policy guidance, a US consulate may revoke a non-immigrant visa (F-student, H-employment, L-employment, etc.) based on evidence that the person was charged with a DUI offense, even if there was no conviction. The consulate may send a letter to the person stating that their visa has been revoked and that he or she should return to the home country to meet with consular officials there.
Noncitizens should NOT do this without first speaking to an expert immigration advocate. Even if the consulate revokes the visa, the person’s current period of permission to be lawfully in the United States might remain in place, unless and until the person leaves the United States. Therefore, non-citizens must always consult with an immigration attorney on their individual options.
Aggravated White Collar Enhancement Attorney
Pursuant to Penal Code section 186.11, any person who is convicted of two or more fraud-related or embezzlement-related felonies, in a single prosecution, that result in a loss of more than $100,000 shall be punished with an additional consecutive imprisonment. This enhancement is known as the aggravated while collar enhancement.
The crimes must involve a “pattern of related felony conduct” which means engaging in at least two felonies that have same or similar purpose, result, principals, victims, methods of commission or are otherwise related by distinguishing characteristics and are not isolated events. The amount of the additional consecutive imprisonment will depend on the amount of loss.
Losses in excess of $100,000 will result in a one-year additional term, pursuant to Penal Code sections 186.11(a)(3) and 12022.6(a)(1). Losses in excess of $200,000 will result in a two-year additional term, pursuant to Penal Code sections 186.11(a)(3) and 12022.6(a)(2). Losses in excess of $500,000 will result in an additional term of two, three or five years. This will correspond to the low term, mid term or high term of the underlying sentence.
The aggravated white collar enhancement shall only be imposed once in a single criminal proceeding. If a defendant is sentenced to prison time that involves the aggravated white collar enhancement, then the defendant is disqualified under Penal Code section 1170(h). This means that any prison time must be served in state prison as opposed to the local county jail.
Firearm Enhancement Attorney
UPDATE – there is a new change in this law effective January 1, 2018. The court is now allowed to strike this enhancement in the interests of justice, pursuant to the newly enacted Penal Code section 12022.5(c). Penal Code sections 12022.5 and 12022.53, commonly known as the Gun Enhancement or Firearm Enhancement, can increase a sentence if a firearm was used during the commission of the offense. Penal Code section 12022.5 adds an additional and consecutive 3, 4 or 10 years where a firearm is personally used during the commission or attempted commission of any felony.
Penal Code section 12022.53 adds an additional and consecutive 10 years where a firearm is personally used during the commission of certain felonies, including: — Murder, Penal Code section 187 — Mayhem, Penal Code section 203 or 205 — Kidnapping, Penal Code section 207, 209 or 209.5 — Robbery, Penal Code section 211 — Carjacking, Penal Code section 215 — Assault with Intent to Commit a Specified Felony, Penal Code section 220 — Assault with a Firearm on a Peace Officer, Penal Code section 245(d) — Rape, Penal Code section 261 or 262 — Rape or Sexual Penetration in Concert, Penal Code section 264.1 — Sodomy, Penal Code section 286 — Lewd Act on a Child, Penal Code section 288 or 288.5 — Oral Copulation, Penal Code section 288a — Sexual Penetration, Penal Code section 289 — Any felony punishable by death or life imprisonment.
If a defendant “personally used” a firearm during the felony, then an additional consecutive term of 10 years state prison is added, pursuant to Penal Code section 12022.53(b). If the firearm was discharged during one of these felonies, then an additional consecutive 20 years state prison is added, pursuant to Penal Code section 12022.53(c).
If the defendant personally and intentionally discharges a firearm during one of these felonies and causes great bodily injury or death, then an additional consecutive 25 years to life in state prison is added, pursuant to Penal Code section 12022.53(d). This last section applies not only to the felonies listed above, but also to Penal Code section 246 and Penal Code section 26100(c) or (d), which are all crimes that relate to “drive-by shooting”.
Normally, this enhancement only applies to a person that “personally used” the firearm. However, the enhancement can be applied to any gang member involved in the felony if the defendant is convicted of Penal Code section 186.22(b) AND some other principal violated Penal Code section 12022.53(b), (c) or (d).
However, a defendant cannot be given both the personal use of a firearm enhancement and the gang enhancement, unless the defendant was the one who personally used or personally discharged the firearm during the commission of the felony. This enhancement used to be especially dangerous because in the past, a court could not strike the enhancement or stay the punishment.
Furthermore, the court cannot grant probation if the enhancement is found to be true. The only way the enhancement could have been removed in the past is if the District Attorney’s office drops the enhancement pursuant to plea negotiations or the enhancement is found not to be true after jury trial. However, the California Legislature, realizing that so much power should not rest in the hands of the DA, amended both laws.
Now, the court has the power to strike or dismiss Penal Code sections 12022.5 or 12022.53 in the interests of justice. This is a huge change in the law that greatly benefits defendants accused of this enhancement.
Gang Enhancement Attorney
Penal Code section 186.22, also known as the Gang Enhancement, adds additional penalties to gang members who commit crimes. Penal Code section 186.22(a) penalizes gang members who willfully “promotes, furthers or assists felonious conduct” by other gang members. Penal Code section 186.22(a) is a wobbler.
If the court grants probation to a defendant convicted of Penal Code section 186.22(a), then the minimum sentence is 180 days jail. Penal Code section 186.22(b) adds an additional consecutive sentence to an underlying felony sentence if a defendant commits a felony “for the benefit of, at the direction of, or in association with any criminal street gang” if the defendant has the specific intent to “promote, further or assist in any criminal conduct by gang members.”
Specifically, — Penal Code section 186.22(b)(1)(A) adds a consecutive term of 2, 3, or 4 years for any felony that is not serious or violent; — Penal Code section 186.22(b)(1)(B) adds a consecutive term of 5 years if the underlying felony is serious, as defined by Penal Code section 1192.7(c); and — Penal Code section 186.22(b)(1)(C) adds a consecutive term of 10 years if the underlying felony is violent, as defined by Penal Code section 667.5. Furthermore, there are a few felonies, when committed for the benefit of the gang with the intent to promote the gang, that are punishable by life in prison, pursuant to Penal Code section 186.22(b)(4).
The following are some of the crimes that come under this section and the minimum terms required: — Home invasion robbery – Penal Code section 213(a)(1)(A) – 15 years to life — Carjacking – Penal Code section 215 – 15 years to life — Discharging a Firearm at an occupied house or car – Penal Code section 246 – 15 years to life[i] — Extortion – Penal Code section 519 – 7 years to life — Victim or Witness intimidation – Penal Code section 136.1 – 7 years to life A felony conviction that is also punishable Penal Code section 186.22 is a serious felony as defined by Penal Code section 1192.7(c)(28).
That means that any felony conviction that becomes punishable under Penal Code section 186.22 becomes a strike. If a defendant is charged with a “normal” felony but the DA adds an enhancement for Penal Code section 186.22(b)(1)(A), conviction of that felony and the enhancement turns the felony into a strike. If a defendant is being charged with a gang enhancement, his penalties can jump up significantly. It’s important to hire an attorney that knows how to fight gang enhancements.
In every gang trial that Mr. Thiagarajah has had, he has never had a defendant convicted of the gang enhancement.
Great Bodily Injury Enhancement Attorney
One of the most common enhancements is the Great Bodily Injury enhancement, pursuant to Penal Code section 12022.7. Great Bodily Injury is defined as a significant or substantial bodily injury. There are three types of GBI enhancements – extent of injury, type of victim and type of crime. Penal Code section 12022.7(a) and (b) apply depending on the extent of the injury. The basic GBI enhancement, Penal Code section 12022.7(a), applies when any GBI is inflicted on a victim during a felony and adds an additional consecutive three years state prison.
If the GBI results in brain injury that leads to a coma or if the GBI results in paralysis, then the additional consecutive term is five years state prison per Penal Code section 12022.7(b). The second category of GBI applies depending on the type of victim. If the victim is 70 years or older, the GBI enhancements adds an additional consecutive 5 years state prison, per Penal Code section 12022.7(c).
If the victim is 5 years of age or younger, the GBI enhancement adds an additional consecutive term of four, five or six years, per Penal Code section 12022.7(d). If the victim is pregnant, then the Great Bodily Injury enhancement adds an additional consecutive five years state prison, pursuant to Penal Code section 12022.9. The third category of GBI applies depending on the type of crime.
If the underlying crime involved domestic violence, then the GBI enhancement adds an additional consecutive term of three, four or five years state prison, per Penal Code section 12022.7(e). If the underlying crime was a violation of Penal Code section 220 to commit certain sex offenses, then the GBI enhancement adds an additional consecutive five years state prison, per Penal Code section 12022.8.
In addition to an increased penalty, the GBI enhancement can transform a normal felony into a strike offense. A court does have the power to strike this allegation or suspend the execution or imposition of sentence on this allegation, or even impose probation when this enhancement is alleged. Great bodily injury is not the same as serious bodily injury. Some crimes have serious bodily injury as an element of the crime itself, such as “battery with serious bodily injury”. However, the law has defined serious bodily injury as different than great bodily injury, although the two sound very similar.
The exact language of the great bodily injury enhancement as defined by Penal Code section 12022.7 is:
(a) Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years.
(b) Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony which causes the victim to become comatose due to brain injury or to suffer paralysis of a permanent nature shall be punished by an additional and consecutive term of imprisonment in the state prison for five years. As used in this subdivision, “paralysis” means a major or complete loss of motor function resulting from injury to the nervous system or to a muscular mechanism.
(c) Any person who personally inflicts great bodily injury on a person who is 70 years of age or older, other than an accomplice, in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for five years.
(d) Any person who personally inflicts great bodily injury on a child under the age of five years in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for four, five, or six years.
(e) Any person who personally inflicts great bodily injury under circumstances involving domestic violence in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three, four, or five years. As used in this subdivision, “domestic violence” has the meaning provided in subdivision (b) of Section 13700.
(f) As used in this section, “great bodily injury” means a significant or substantial physical injury.
(g) This section shall not apply to murder or manslaughter or a violation of Section 451 or 452. Subdivisions (a), (b), (c), and (d) shall not apply if infliction of great bodily injury is an element of the offense.
(h) The court shall impose the additional terms of imprisonment under either subdivision (a), (b), (c), or (d), but may not impose more than one of those terms for the same offense.
Criminal cases may have affect a student’s ability to qualify for or maintain federal aid for school. Federal Student Aid is governed by the US Department of Education. The Department of Education restricts the ability of some people to qualify for and keep their student loans or grants depending on their criminal status. For more information on the process, visit the Department of Education’s website.
A summary of the information is listed here. First, if a student is incarcerated in either a federal or state institution, they cannot qualify for federal student aid. This limitation only applies as long as the student is in prison or jail. Once the student is released from prison or jail, they can qualify for federal student aid, subject to the other restrictions below.
A student on probation or parole can qualify for federal student aid. Second, drug convictions will disqualify a student for federal aid if the student received the conviction while receiving the federal student aid at the same time. The FAFSA (Free Application for Federal Student Aid) will ask whether the student has a drug conviction.
However, a student can regain eligibility for federal student aid upon completion of approved drug rehabilitation programs. For more information on how drug convictions can affect FAFSA and how students can re-qualify after a drug conviction, visit the White House’s page on FAFSA and drug convictions. Third, certain sexual offenses also disqualify a student from federal aid.
This restriction is very narrow and only applies to a small group of sexual offenders who have been to prison and then been placed in involuntary civil commitment after prison.
Certain convictions will result in a ban or prohibition on firearms. That means a person is not allowed to own, possess or use firearms, if they are convicted of certain crimes. Anybody convicted of a felony in California is prohibited from owning, possessing or using firearms for life.
Anybody who has a restraining order against them is prohibited from having firearms for the duration of the restraining order. Furthermore, there are certain misdemeanors that result in a firearm ban for ten years. Penal Code section 29805 lists which misdemeanors result in a 10-year firearm ban.
Some of the most common convictions include: – Penal Code section 136.1 – witness intimidation – Penal Code section 148.5 – filing a false police report or falsely reporting a crime – Penal Code sections 240-241 – assault – Penal Code section 242-243 – battery – Penal Code section 243(e)(1) – misdemeanor domestic violence without injury – Penal Code section 243.4 – sexual battery – Penal Code section 245 – assault with a deadly weapon or assault with force likely – Penal Code section 273.5 – misdemeanor domestic violence with injury – Penal Code section 417 – brandishing a weapon (including knife or gun) – Penal Code section 422 – deadly threats or criminal threats – Penal Code section 646.9 – stalking – Penal Code section 487 – grand theft of a firearm.
In addition, a judge can always order someone not to own, possess or use a firearm as a condition of probation – even the underlying charges don’t automatically result in firearm restrictions.
In any criminal case, a defendant has the right to have a jury trial where 12 people must unanimously find him “guilty” before he can be convicted of a charge. If the 12 jurors unanimously find him “not guilty”, then the defendant is acquitted. However, iif there is a split in the votes (also known as the jury being deadlocked), then it is a “hung jury”. When there is a hung jury or deadlocked jury, the judge orders a mistrial and the case is reset with a new trial date.
If the prosecution elects to move forward, then the trial begins all over again. The prosecution doesn’t have to move forward with another trial — they can attempt to strike a deal or they can dismiss the charges. Also, the judge has the power to dismiss the charges even over the prosecution’s objection. If there are multiple charges, a new trial will only cover those charges where the jury was deadlocked.
For example, if a defendant was convicted of arson, acquitted of robbery and the jury was hung on welfare fraud, then the new trial would only cover welfare fraud. Any charges where the jury had convicted or acquitted are already decided and not part of any new trial. Technically, it doesn’t matter what the split is — whether it is 11-1 for “guilty” or 11-1 for “not guilty” or anything in between.
Any type of split is a hung jury. Practically, however, the type of split is important as to whether the prosecution wants to re-try the case or make a deal or whether the judge is willing to dismiss the charge. For example, if the split is 11-1 for “guilty”, then the prosecution may want to re-try the case. After all, they almost had a guilty verdict except for one juror.
On the other hand, if the split is mostly “not guilty” votes, then the judge will most likely dismiss the case. If the split is 10-2 or 9-3 for “guilty”, then the prosecution may be willing to make a deal with the defendant. If the prosecution offers a new deal and the defendant declines that offer, then the prosecution can proceed with a new trial. Whether a prosecutor should make a new offer or whether a defendant should accept a new offer is a strategic decision that depends on a variety of factors.
Note, however, that the attorneys don’t know what kind of split it is, until after a mistrial is declared. When a jury reports that they are “hung”, neither side is allowed to know how the split is decided – whether it’s a majority for “guilty” or “not guilty”. Sometimes, there is a hung jury on a “greater” charge, but the jury might be unanimous on the lessor charge. Under the law, a jury is not allowed to consider the lessor included charge until they are unanimously decided on the greater charge.
For example, if a person is charged with first-degree murder, the jury can’t decide on second-degree murder, until they are unanimously decided on “guilty” or “not guilty” for first-degree murder. In situations like these, the prosecutor can take a risk and ask the judge to dismiss the greater charge and let the jury immediately start deciding the lessor charge. The advantage is that if the jury was unanimous about guilt on the lessor charge, then the prosecutor still gets a conviction without having to re-try the case.
The disadvantage is that if the prosecutor is wrong and the jury is deadlocked on the lessor charge too, then the retrial would only be on the lessor charge. Once the prosecutor dismisses the greater charge, it’s dismissed for good. Although this particular scenario is very rare, it did happen on a homicide trial that I handled in 2011 — People v. Carlstrom.
In October 2017, Governor Brown signed legislation that officially made California a sanctuary state. However, even prior to this official act, California was unofficially a sanctuary state and most Sheriff Offices in Southern California did not honor requests by ICE to hold a defendant beyond their original custody commitment. In the past, if a non-citizen defendant was in custody, the Immigration and Customs Enforcement (ICE) could request the Sheriff’s Office to place a hold on that defendant, preventing the defendant from being released, even after their jail sentence was served.
In those situations, the defendants would then be transferred to ICE custody to face removal proceedings and deportation. When a ICE hold was placed, a defendant was not allowed to bail out on the ICE hold, even if they could bail out on the criminal case. Not every non-citizen defendant can receive an ICE hold. In the past, there was no specific policy as to who was subjected to an ICE hold, but in December 2012, ICE prepared a uniform policy regarding which non-citizens would be subject to ICE holds while in custody for a criminal case.
ICE requested a hold on defendants that they believed were subject to removal AND one of the following conditions existed: — charged with a felony offense — charged with a misdemeanor offense IF — there is a prior felony conviction, or — there are 3 prior misdemeanor convictions, or — a past misdemeanor conviction or the current misdemeanor offense involves: — violence, threats, assault — sexual abuse or exploitation — DUI — alcohol or drugs — possession or use of a firearm or other deadly weapon — drug trafficking or distribution — some other threat to public safety.
Other reasons that ICE may place a hold on a non-citizen in custody include: o Convicted of illegal entry pursuant to 8 USC 1325 o Has illegally re-entered the country after a previous removal or return o Has an outstanding removal order o Has committed immigration fraud o Poses a significant risk to national security, border security or public safety However, many Sheriffs in Southern California no longer honor ICE requests to detain defendants beyond their custody time. It is possible for ICE to pick up a defendant as soon as they are released from criminal custody, but the Sheriffs will no longer keep a defendant in Sheriff custody longer than their sentence for ICE officials. For more information on the change in the policy of the Orange County Sheriff’s Office, click here.
An Information and an Indictment are types of criminal complaints alleging crimes against a defendant. An Information is the complaint that is filed by the District Attorney’s office after a preliminary hearing. It usually contains the same crimes that were contained in the original complaint but charges can be added or dropped depending on what happened in the preliminary hearing.
An Information can only charge crimes that supported by evidence presented in the preliminary hearing. Sometimes a judge will dismiss charges at a preliminary hearing but the DA will include those same charges in the Information. If the defense believes that the DA is improperly filing charges in an Information that were not supported by the preliminary hearing, then the defense can file a 995 motion – a motion to dismiss charges from the Information.
A 995 motion can be filed at any time after the Information but if the 995 motion is filed more than 60 days after the Information, then the 995 motion cannot be appealed if the defense loses. If there is no preliminary hearing because both sides waive the preliminary hearing, then there is usually a stipulation that the Information can allege any charges that are supported by the police reports.
An Indictment is a complaint alleging crimes based on testimony before and findings of a grand jury. When a grand jury is used, the DA’s office bypasses the complaint, all pretrial negotiations and the preliminary hearing. Indictments are rare but are sometimes used in high-profile cases. Legally, an Indictment serves the same purpose as Information.
All crimes in California require that the defendant have an intent to commit the crime. If you a defendant accidentally does something, he is not criminally liable. For example, if a person is walking through a park and they accidentally bump into someone, that’s not a battery. The contact was accidental. General Intent Most crimes in California require general intent.
That means, the person must have intended to do what they did, but not necessarily intended to commit a crime or intended to hurt someone. For example, let’s say someone comes here from another country and doesn’t realize that drinking and driving is illegal. If that person is caught for drinking and driving, they can’t claim that they didn’t intend to break the law because a DUI is a general intent crime.
It doesn’t matter if you intended to break the law – all that matters is that you purposely drank and then purposely drove. Another example would be battery. Let’s say you push someone and they fall down and break their arm. It doesn’t matter that you didn’t intend to hurt them – what matters is that you purposefully pushed them. Specific Intent Some crimes in California require more than general intent.
They require that a person have a specific mindset when committing the crime. These are called specific intent crimes. Theft is an example of a specific intent crime. The defendant must intend to “permanently deprive the owner of the property” when committing the theft. For example, if you purposely take your friend’s phone but you only intended to borrow it, that’s not theft because you didn’t intend to take it from him permanently. If you take your friend’s phone with the intention of never giving it back, then that’s theft because you intended to permanently deprive him of the phone.
Sexual battery is another example of a specific intent crime. In order to commit this crime a defendant must commit touch someone in an inappropriate place with the intent to sexually gratify themselves or the other person. For example, let’s say a man intentionally touches a child on their private parts. If it’s a father bathing his child and he’s not thinking sexual thoughts, then it’s not a sexual battery.
However, if an adult does have sexual thoughts while touching a another person’s private parts, then it is a sexual battery. Sexual battery requires more than just purposefully touching someone on their private parts. It requires the specific intent that person doing the touching has sexual thoughts. Negligence Very few crimes in California require mere negligence. Negligence is when a person does not intend to do something but acts so carelessly, that they are held responsible for their actions anyway.
The best example of a misdemeanor that only requires negligence is involuntary vehicular manslaughter. If you are in a car accident and someone dies, you can be charged with involuntary vehicular manslaughter if the accident was even partly caused by the fact that you committed some kind of vehicle code infraction. For example, let’s say you were speeding and somebody cuts you off. You jerk your car to the right to avoid being hit, lose control of the car, crash and your passenger dies in the crash. Now, you never intended to get into an accident and you never intended for your passenger to die, but if the prosecution can show that your speeding somehow contributed to the accident or somehow contributed to your passenger dying, then you can be found guilty of involuntary vehicular manslaughter.
The Right Lawyer It’s important to have a lawyer on your side that knows the different elements of each crime and knows when intent can be used as a defense. As a former Deputy District Attorney, Fred Thiagarajah has been trained in how to prove intent and now uses that knowledge to defend his clients. Contact his offices in Riverside, Orange County or Los Angeles if you have any questions regarding intent or want to discuss a criminal law case with him.
California License Suspension Attorney
There are certain types of crimes whereby a conviction may or shall result in a driver’s license conviction. These crimes include vandalism and drug offenses. Vandalism: California Vehicle Code section 13202.6(a) requires a driver’s license suspension for up to two years for any person who is convicted of a violation of Penal Code section 594, 594.3 or 594.4.
A person is anybody who is 13 years of age or older. For those defendants that don’t already have a license, the court can delay the time for which a defendant becomes eligible for their license. The court can make a hardship exception for defendants who need a driver’s license for employment, school or medical-related purposes for themselves or a family member.
This suspension can be shortened in exchange for the defendant performing community service. Drug Offenses: California Vehicle Code section 13202(a) allows a court to suspend or revoke a driver’s license of any defendant convicted of any drug crime as defined by Division 10 of the Health and Safety Code when that offense relates to the use of a motor vehicle.
California Vehicle Code section 13202(b) requires the court to revoke the driver’s license of any defendant convicted of Health and Safety Code sections 11350, 11351, 11352, 11353, 11359, 11360 or 11361 when the offense relates to the use of a motor vehicle. The amount of suspension is determined by the court, but cannot exceed three years.
California License Suspension Attorney
Vehicle Code section 13202.5 requires the DMV to suspend the driver’s license of an underage defendant who commits certain crimes. An underage defendant is someone who at least 13 years old, but under the age of 21.
The most common crimes that require a one year suspension are: Business & Professions Code 25662 – minor in possession of alcohol Penal Code section 647(f) – drunk in public Penal Code section 191.5 – vehicular manslaughter while intoxicated Penal Code section 192.5 – vehicular manslaughter Vehicle Code section 23152 – DUI Vehicle Code section 23103 pursuant to 23103.5 – wet & reckless Vehicle Code section 23140 – driving with BAC of .05% or more.
The full language of Vehicle Code section 13202.5 is below: (a) For each conviction of a person for an offense specified in subdivision (d), committed while the person was under the age of 21 years, but 13 years of age or older, the court shall suspend the person’s driving privilege for one year. If the person convicted does not yet have the privilege to drive, the court shall order the department to delay issuing the privilege to drive for one year subsequent to the time the person becomes legally eligible to drive.
However, if there is no further conviction for an offense specified in subdivision (d) in a 12-month period after the conviction, the court, upon petition of the person affected, may modify the order imposing the delay of the privilege. For each successive offense, the court shall suspend the person’s driving privilege for those possessing a license or delay the eligibility for those not in possession of a license at the time of their conviction for one additional year.
As used in this section, the term “conviction” includes the findings in juvenile proceedings specified in Section 13105. (b) Whenever the court suspends driving privileges pursuant to subdivision (a), the court in which the conviction is had shall require all driver’s licenses held by the person to be surrendered to the court.
The court shall within 10 days following the conviction transmit a certified abstract of the conviction, together with any driver’s licenses surrendered, to the department. (c) (1) After a court has issued an order suspending or delaying driving privileges pursuant to subdivision (a), the court, upon petition of the person affected, may review the order and may impose restrictions on the person’s privilege to drive based upon a showing of a critical need to drive. (2) As used in this section, “critical need to drive” means the circumstances that are required to be shown for the issuance of a junior permit pursuant to Section 12513. (3) The restriction shall remain in effect for the balance of the period of suspension or restriction in this section.
The court shall notify the department of any modification within 10 days of the order of modification. (d) This section applies to violations involving controlled substances or alcohol contained in the following provisions: (1) Article 7 (commencing with Section 4110) of Chapter 9 of Division 2 of, and Sections 25658, 25658.5, 25661, and 25662 of, the Business and Professions Code. (2) Division 10 (commencing with Section 11000) of the Health and Safety Code. (3) Section 191.5, subdivision (a) or (b) of Section 192.5, and subdivision (f) of Section 647 of the Penal Code. (4) Section 23103 when subject to Section 23103.5, Section 23140, and Article 2 (commencing with Section 23152) of Chapter 12 of Division 11 of this code. (e) Suspension, restriction, or delay of driving privileges pursuant to this section shall be in addition to any penalty imposed upon conviction of a violation specified in subdivision (d).
Penal Code section 1001.94 established a deferral of sentencing program for a variety of first-time misdemeanor offenses in Los Angeles County. This is a pilot program which means that it’s an experimental program only available in Los Angeles County and only available until January 1, 2018. It is possible that the deferral of sentencing program may expand into other counties or extend beyond January 1, 2018, but for now, the deferral of sentencing program only exists in Los Angeles County.
Before explaining how the program works, let’s take a look at how sentencing works in California. In order for a defendant to be “convicted” of a crime in California, two things have to happen – a defendant must be found guilty and then a defendant must be sentenced. A defendant is found guilty either when the defendant pleads guilty or no contest OR if a defendant is found guilty after trial. Whether a defendant pleads guilty or is found guilty, there is still no conviction until a defendant is sentenced by a judge.
There are different code sections that allow for a deferral of sentencing or deferral of judgment. This is also known as “diversion” in some counties. In these programs, a defendant will plead guilty but sentencing will be postponed. Since sentencing doesn’t actually occur, then a conviction doesn’t actually occur. Then assuming a defendant jumps through certain hoops, the case will be dismissed prior to sentencing and there will be no conviction on the defendant’s records.
The Los Angeles County Deferral of Sentencing Pilot Program is similar to the programs described above. A defendant must first plead guilty to the crime. Then a judge will defer sentencing for up to 12 months. During the deferral of sentencing, the defendant cannot commit any new crimes. Also during the deferral of sentencing, a judge may require that the defendant perform certain tasks or comply with certain conditions.
Such tasks or conditions may include community service, anger management classes, AA classes, etc. There is no limit to the type of conditions or programs that may be required of a defendant – it is up to to the discretion of the judge. However, restitution will always be required and a protective order, when appropriate, will always be imposed. Assuming the defendant has completed whatever is required and has committed no crimes during this deferral period, then the judge will strike the guilty plea and dismiss the case.
If sentencing never occurs, then a conviction never occurs. However, if the defendant commits a new crime during this period or fails to complete the conditions on time, then the defendant will be sentenced and convicted of the crime. According to Penal Code section 1001.96(b), it will be as if the arrest never occurred and the defendant is legally allowed to state on any application that he or she was never arrested or even that they received the deferral of sentencing program or any other kind of deferred entry of judgment. In that sense, Penal Code section 1001.94 is better than an expungement or any other kind of deferred entry of judgment because it never has to be disclosed even on professional licensing applications.
However, the deferral of sentencing still needs to be disclosed on any application for employment with law enforcement. (Penal Code section 1001.96(c)). Not all defendants and not all crimes are eligible for this program. First, any defendant who has a previous felony conviction, previous misdemeanor conviction for force or violence or any previous misdemeanor conviction within the last ten years are NOT eligible to participate in this program.
Furthermore, defendants who have already received a deferred entry of sentencing or defendants who are required to register as sex offenders are not allowed to participate in this program. Finally, this program is not available to defendants who are not persons. For example, companies or other legal entities cannot take advantage of this program. Second, not all crimes are eligible to be dismissed pursuant to this program.
The following crimes are NOT eligible: – any crime where jail time would be mandatory if the defendant were to be convicted – any crime related to domestic violence, child endangerment or elder abuse. This specifically includes violations of Penal Code section 273.5 and 273.6. – any crime where force or violence is used against a peace officer – any crime involving the use, possession, sale or transfer of a deadly weapon, firearm or ammunition – DUI, as defined by Vehicle Code section 23152 or 23153 – vehicular manslaughter as defined by Penal Code section 191.5(b) or 192(c). – gang crimes as defined by Penal Code section 186.22 – any crime involving workplace or environmental safety.
The Deferral of Sentencing Program will not eliminate immigration consequences for a defendant.
When a defendant is convicted of a felony, most of the time the defendant can be sentenced to probation or prison. However, there are some felonies where probation is not allowed and prison is required “except in unusual cases where the interest of justice would best be served if the person is granted probation” and the court specifies in the minutes the circumstances that justify probation.
California Penal Code section 1203(e) lists certain felonies that do not qualify for probation:
California Penal Code section 1203.065 lists additional sex felonies that do not qualify for probation:
*denotes offenses where only certain subdivisions apply
In November 2008, the voters of California a Victim’s Bill of Rights commonly known as Marsy’s Law. The law amends the California Constitution to afford more rights to victims of crimes. The law was named after Marsy Nicholas, a UC Santa Barbara student, who was stalked and murdered by her ex-boyfriend in 1983. The driving force behind the law was her brother, Henry Nicholas, the co-founder of Broadcom, who attended many of the court hearings in Marsy’s case.
The law can have an impact on negotiations and sentencing in criminal cases. Prosecutors are more likely to heed a victim’s input in how criminal cases are to be resolved, which sometimes hampers the abilty of defense attorneys to negotiate cases with the DA.
The California Constitution, Article I, Section 28(b) now states: In order to preserve and protect a victim’s rights to justice and due process, a victim shall be entitled to the following rights:
(1) To be treated with fairness and respect for his or her privacy and dignity, and to be free from intimidation, harassment, and abuse, throughout the criminal or juvenile justice process.
(2) To be reasonably protected from the defendant and persons acting on behalf of the defendant.
(3) To have the safety of the victim and the victim’s family considered in fixing the amount of bail and release conditions for the defendant.
(4) To prevent the disclosure of confidential information or records to the defendant, the defendant’s attorney, or any other person acting on behalf of the defendant, which could be used to locate or harass the victim or the victim’s family or which disclose confidential communications made in the course of medical or counseling treatment, or which are otherwise privileged or confidential by law.
(5) To refuse an interview, deposition, or discovery request by the defendant, the defendant’s attorney, or any other person acting on behalf of the defendant, and to set reasonable conditions on the conduct of any such interview to which the victim consents.
(6) To reasonable notice of and to reasonably confer with the prosecuting agency, upon request, regarding, the arrest of the defendant if known by the prosecutor, the charges filed, the determination whether to extradite the defendant, and, upon request, to be notified of and informed before any pretrial disposition of the case.
(7) To reasonable notice of all public proceedings, including delinquency proceedings, upon request, at which the defendant and the prosecutor are entitled to be present and of all parole or other post-conviction release proceedings, and to be present at all such proceedings.
(8) To be heard, upon request, at any proceeding, including any delinquency proceeding, involving a post-arrest release decision, plea, sentencing, post-conviction release decision, or any proceeding in which a right of the victim is at issue.
(9) To a speedy trial and a prompt and final conclusion of the case and any related post-judgment proceedings.
(10) To provide information to a probation department official conducting a pre-sentence investigation concerning the impact of the offense on the victim and the victim’s family and any sentencing recommendations before the sentencing of the defendant.
(11) To receive, upon request, the pre-sentence report when available to the defendant, except for those portions made confidential by law.
(12) To be informed, upon request, of the conviction, sentence, place and time of incarceration, or other disposition of the defendant, the scheduled release date of the defendant, and the release of or the escape by the defendant from custody.
(13) To restitution. (A) It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to seek and secure restitution from the persons convicted of the crimes causing the losses they suffer. (B) Restitution shall be ordered from the convicted wrongdoer in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss. (C) All monetary payments, monies, and property collected from any person who has been ordered to make restitution shall be first applied to pay the amounts ordered as restitution to the victim.
(14) To the prompt return of property when no longer needed as evidence.
(15) To be informed of all parole procedures, to participate in the parole process, to provide information to the parole authority to be considered before the parole of the offender, and to be notified, upon request, of the parole or other release of the offender.
(16) To have the safety of the victim, the victim’s family, and the general public considered before any parole or other post-judgment release decision is made.
(17) To be informed of the rights enumerated in paragraphs (1) through (16).
What is Megan’s Law?
Megan’s Law is named after seven year old Megan Kanka, a New Jersey girl who was raped and killed by a registered sex offender who had moved across the street from the family without their knowledge. In the wake of this tragedy, state legislatures enacted laws that require information about known sex offenders to be available online.
Every state, including California, has a version of Megan’s Law. As of 2004 in California, Megan’s Law has enabled the public to view information about sex offenders required to register under Penal Code section 290. The intent behind the law is to protect communities, not punish sex registrants. However, a sex registrant who finds his name on the Megan’s Law site is being continuously “punished” even if the courts don’t consider it punishment.
Who is listed under Megan’s Law and what information is available? Although every sex offender listed under Megan’s Law is required to register under Penal Code section 290, the opposite isn’t true. In other words, not everybody who has to register pursuant to Penal Code section 290 will have their information published under Megan’s Law.
There are specific sex offenses that Megan’s Law targets. Every sex offender who qualifes for Megan’s Law will have their name, picture, physical description including race and gender, date of birth and criminal history published, along with any other information that the DOJ deems relevant. However, information regarding victims will never be published and information regarding an offender’s employment will never be published. Only some offenders will have their home address published.
Megan’s Law divides offenders into three categories to determine who has their home address published along with all the other information. Home Address Category – This is the most severe category. It requires that the home address of the sex registrant be published along with other information about the sex registrant. Sex registrants convicted of a sex crime outlined in Penal Code section 290.46(b) fall into this category.
These sex offenses include, but are not limited to: — homicide, robbery or kidnapping to commit rape, sodomy, oral copulation, sexual penetration or child molestation — certain types of rape – where it is accomplished against a person’s will by force, violence, duress, menace or fear of bodily injury, or by threatening to retaliate in the future against the victim or another person. (Does not include rape by intoxicating substance, rape of an unconscious person, rape by duplicity in a professional setting). — Aggravated sexual assault on a child — Certain types of sodomy and oral copulation – usually those that involve a young victim under the age of 14 or those that are done against a person’s will — Certain child pornography offenses – many of these offenses require a felony conviction in order to be included in this category of Megan’s Law.
For a more thorough list of crimes that are included in this category, please review California Penal Code section 290.46(b). Conditional Home Address Category – People in this category would normally not have their home address published UNLESS they have a conviction for any other sex offense under Penal Code section 290. In that case, their information would be published as if they were in the Home Address Category.
Examples of crimes listed in Penal Code section 290.46(c) include, but are not limited to: — assault with intent to rape, sodomize, orally copulate — certain types of rape, sodomy or oral copulation People convicted of these crimes that do not have a prior conviction for a registerable sex offense still fall under Megan’s Law, but their home address isn’t published.
These people would then be similar to the last category – Zip Code Category – Sex registrants convicted of sex offenses outlined in Penal Code section 290.46(d) will have their zip code published, along with other information, but not their home address.
Examples of these offenses include: — felony sexual battery — misdemeanor child molestation where the child is 14 or 15 and the defendant is at least 10 years older, pursuant to Penal Code section 288(c) — misdemeanor annoying / molesting a child, pursuant to Penal Code section 647.6 Undisclosed Category – If a sex registrant is convicted of a sex offense that is not listed in Penal Code section 290.46(b), (c) or (d), then the sex registrant’s information is NOT included in the Megan’s Law website.
However, the sex registrant is still required to register as a sex offender with law enforcement. Examples include: — indecent exposure pursuant to Penal Code section 314 — misdemeanor sexual battery pursuant to Penal Code section 243.4 — misdemeanor child pornography pursuant to Penal Code sections 311.11, 311.2(c), 311.3, 311.4(a) and 311.11 Excluded Category – Certain sex offenders whose information is listed on the Megan’s Law site can apply to have their information removed.
The only sex offenses that qualify for this application are either felony sexual battery (Penal Code section 243.4) or misdemeanor child annoyance / molestation (Penal Code section 647.6). These sections merit mandatory removal as long as the sex registrant has no other registerable sex offense on their record.
Removal is discretionary where the sex offense is felony child pornography and the victim is at least 16 years old, or where the sex offense involved a relative, did not involve penetration or oral copulation and the sex offender successfully completed probation or is currently successfully completing probation.
Crimes of Moral Turpitude Attorney
What is a crime of moral turpitude? Crimes of moral turpitude are crimes that tend to show a person’s dishonesty or their “readiness to do evil”. Typical crimes of moral turpitude that show dishonesty include theft, burglary, forgery, check fraud. Crimes of moral turpitude that show a “readiness to do evil” include sex crimes, domestic violence with injury and deadly threats.
Why are crimes of moral turpitude significant? Crimes of moral turpitude are significant for three reasons. First, they can have an impact on your immigration status. Second, they can have an impact on your professional license. Third, they can be used by the prosecution to impeach your testimony if you testify as a witness, including if you testify as a defendant in a criminal case.
It is important to note that a crime of moral turpitude for immigration purposes is not necessarily a crime of moral turpitude for licensing consequences and testifying as a witness. Although many crimes of moral turpitude are the same for all these categories, there are some crimes that are considered crimes of moral turpitude in the immigration context, but not the criminal context, and vice-versa. What is the impact of crimes of moral turpitude on my immigration status?
There are many different types of crimes that lead to immigration consequences. One type of crime is a crime of moral turpitude. A person with two convictions, after admission, for crimes of moral turpitude is subject to deportation. A person with only one conviction, after admission, for a crime of moral turpitude is subject to deportation if the crime was committed within 5 years of admission AND the maximum possible sentence for the crime is at least one year.
Furthermore, one conviction for a crime of moral turpitude makes a person inadmissible, unless they qualify for either the Petty Offense Exception, pursuant to 8 USC 1182(a)(2)(A)(ii)(II) or the Youthful Offender Exception, pursuant to 8 USC 1182(a)(2)(A)(ii)(I). Some crimes qualify for more than one category for immigration purposes. For example, drug sales is both a drug crime (which is terrible for immigration purposes) and a crime of moral turpitude.
You need to hire a criminal defense attorney that has experience in immigration consequences to explain the process and assist you the best defense possible. What is the impact of crimes of moral turpitude for professional licensing? Any conviction for a crime can have consequences on a person’s profession, but crimes of moral turpitude are usually crimes that indicate a person is either dishonest or evil. Either way, most professions do not want dishonest or evil people in their ranks.
As such, a crime of moral turpitude can lead to revocation of a professional license or denial of the license in the first place. Crimes of moral turpitude can affect any type of professional license, including teachers, doctors, nurses, pharmacists, lawyers, contractors, financial analysts and accountants. What is the impact of crimes of moral turpitude on testifying? Any witness who testifies in court can be impeached if they have a crime of moral turpitude on their record.
A witness with a DUI conviction or a possession of marijuana conviction is not necessarily a dishonest person, because drinking and driving or possessing marijuana does not implicate a person’s honesty. However, crimes such as burglary, theft and fraud are all crimes that imply a person is dishonest. When a witness testifies, the jury is entitled to know whether that witness is an honest person, and the opposing side can undermine their honesty by revealing whether that witness has been convicted of a crime of moral turpitude.
The Right Lawyer
Choosing the right criminal defense lawyer will be the most important decision someone can make when any facing any crime of moral turpitude. Many people who face crimes of moral turpitude are good people who made a mistake or exercised poor judgment.
There are also some people who have been wrongfully accused of a crime of moral turpitude, based on a misunderstanding or false evidence. You need an attorney who will listen to your side of the story carefully, who will evaluate the evidence thoroughly, who will negotiate with the judge and the District Attorney’s office skillfully, and who will fight in trial aggressively.
You need attorney Fred Thiagarajah. As a former Deputy District Attorney, Fred Thiagarajah has the negotiating skills and trial experience necessary to get the best results for his clients, for criminal cases and immigration consequences. For an example of his work, please see his case results and read his client testimonials. With offices in Newport Beach, Beverly Hills and Riverside, Fred Thiagarajah has criminal defense experience in Orange, Los Angeles and Riverside Counties.
NIK stands for Narcotic Identification Kit.
The NIK test is a presumptive test that allows law enforcement officers to quickly identify illegal drugs and/or controlled substances. Police officers begin the identification process with a general test, but then can identify popular drugs through a series of different tests.
Common drugs that can be identified by the NIK test include LSD, marijuana, cocaine and crack cocaine, methadone, PCP, opiates, ecstasy, ephedrine and methamphetamine. Although these tests are sufficiently reliable to establish probable cause for an arrest, they are not reliable enough to meet the standard of “beyond a reasonable doubt”.
Usually, the prosecution will send the suspected drug sample to their crime lab for a more comprehensive analysis. Sometimes, these tests produce false positives. For example, Advil (ibuprofen) can render a positive NIK test for amphetamine / methamphetamine.
It’s important in drug cases to have an attorney that is familiar with the procedures used by the police in identifying drugs and can attack the weaknesses of those procedures.
Penal Code section 3000 and its subsequent sections govern the terms of parole (and post-release supervision for PC 1170 offenses). Penal Code section 3000(a)(1) states: The Legislature finds and declares that the period immediately following incarceration is critical to successful reintegration of the offender into society and to positive citizenship.
It is in the interest of public safety for the state to provide for the effective supervision of and surveillance of parolees, including the judicious use of revocation actions, and to provide educational, vocational, family, and personal counseling necessary to assist parolees in the transition between imprisonment and discharge.
A sentence resulting in imprisonment in the state prison pursuant to Section 1168 or 1170 shall include a period of parole supervision or postrelease community supervision, unless waived, or as otherwise provided in this article. Length of Parole The amount of time a defendant serves on parole depends on the underlying crime. The default period of parole is three years. However, there are certain felonies that merit longer parole periods.
Also, the rules change depending on whether the crime occurred before July 1, 2013. For crimes that occurred before July 1, 2013, the rules are very simple. Parole is three years for most people, five years for defendants who were sentenced to life (with the possibility of parole) for offenses other than first degree or second degree murder.
For crimes that occurred on or after July 1, 2013, the rules are complicated. The default is still three years for most felons. If a defendant is convicted of first or second degree murder, the term of parole is life. However, parole can terminated after seven years (for first degree murder) and after five years (for second degree murder) unless there is good cause to keep the defendant on parole. The rules get more complicated for sex offenses.
There are some sex offenses where a defendant can be placed on parole for ten years, or 20.5 years, or life. Sex offenses that merit parole for ten years include rape, sodomy, oral copulation, lewd and lascivious conduct with a minor, and sexual penetration. Specifically, any violations that come under Penal Code section 667.5(c), subdivisions 3, 4, 5, 6, 11 and 18, all get 10 years of parole.
However, in certain sex offenses where the victim was 14 years old or less, then the parole period can be 20.5 years or longer, pursuant to Penal Code section 3000(b)(4)(A). And in certain sex offenses where the penalty is life, then any parole would be for life, pursuant to Penal Code section 3000.1. Another rule involving sex offenses is that for any felony sex offense where the defendant has to register as a sex offender, the defendant will be required to wear a GPS device for the entire period of parole, pursuant to Penal Code section 3000.07.
In October 2011, several new criminal laws in California were passed, collectively known as the Realignment. Amongst these new laws was the enactment of Penal Code section 1170(h) which mandates that certain felons sentenced to prison will serve their time in county jails as opposed to state prisons. The crime itself will specify whether it is subject to Penal Code section 1170(h), but prosecutors often refer to those crimes as “non/non/non” offenses.
This refers to non-serious, non-violent, non-sex offender. Pursuant to Penal Code section 1170(h)(3), if a defendant has a current or prior conviction for strike offense(serious felony or violent felony), or is required to register as a sex-offender pursuant to Penal Code section 290, or is convicted of a crime with an enhancement under Penal Code section 186.11, also known as the “aggravated white collar enhancement”, then any prison time will be served in state prison.
Penal Code section 1170(h)(3) does not require that certain defendants must go to state prison. It only specifies that if prison is ordered, then those with strike offenses or sex offenders must serve their time in state prison. Penal Code section 1170(h)(4) still allows pretrial diversion, deferred entry of judgment or probationary sentence for these individuals. Penal Code section 1170(h)(5) allows a judge to split the sentence of any person sentenced to prison pursusant to Penal Code section 1170(h).
When a sentence is split, part of the sentence is served in custody and part of the sentence is served outside of custody on probation. For the part that is served in custody, a defendant will usually receive “day for day” credit for good behavior. However, any part of the sentence that is served out of custody must be served in full. A defendant will only receive actual time credit for any part of the sentence that is served out of custody. It is the judge’s discretion as to how much time will be served in custody and how much time will be served out of custody.
Penal Code section 1170(h)(5) does not require split sentences. A judge has the authority to allow the entire sentenced to be served in custody. Penal Code section 1170(h)(6) indicates that this sentencing scheme only applies to defendants sentenced after October 1, 2011.
Penal Code section 666: Petty Theft with a Prior If a person is charged with petty theft and they have a prior theft related conviction, then, depending on the circumstances, the new petty theft conviction can be charged as a felony.
Pursuant to Penal Code section 666(a), petty theft is a wobbler and can be charged as a felony if the defendant has at least three prior theft-related convictions on their record and has served time in a penal institution (usually jail or prison) for each of those prior offenses.
A theft-related conviction includes petty theft (Penal Code section 488), grand theft (Penal Code section 487), burglary (Penal Code section 459), robbery (Penal Code section 211), auto theft (Vehicle Code section 10851), carjacking (Penal Code section 215) or felony possession of stolen property (Penal Code section 496).
The law is more severe for sex offenders or defendants with strikes on their record. Pursuant to Penal Code section 666(b), a petty theft is a wobbler and can be charged as a felony if these types of defendants have just one prior theft-related conviction on their record and they served time in a penal institution (usually jail or prison) for that prior offense.
California Preliminary Hearing Attorney In all felony cases, the Defendant is entitled to a preliminary hearing. A preliminary hearing (aka “prelim”) is like a mini-trial. The District Attorney`s office is required to put forth evidence (usually through witness testimony) to prove that the Defendant committed the crime(s) in question.
However, there are some big differences between a preliminary hearing and a trial. First, the preliminary hearing is only heard by a judge, whereas Defendants have the option of having a trial by jury. Second, the standard of evidence is different. In a preliminary hearing, the District Attorney`s burden of proof is only probable cause, but in a jury trial, the District Attorney must prove their case “beyond a reasonable doubt”.
The former burden of proof is very low, and therefore, the District Attorney`s office rarely loses preliminary hearings. Third, in a preliminary hearing, certain types of hearsay evidence are allowed. That means that sometimes, the victims do not need to testify for the District Attorney to prove their case. The District Attorney`s office can have the police officers testify as to what the victims told them.
However, in a trial, this type of hearsay evidence is not allowed, and the victim has to testify. Although preliminary hearings can be useful to the defense, it is not always wise to proceed with a preliminary hearing. If a Defendant wants to settle a case without going to trial, then it may be best to negotiate a deal with the District Attorney`s before the preliminary hearing because the District Attorney`s office will usually give a better offer before preliminary hearing and a worse offer after preliminary hearing.
Furthermore, sometimes the District Attorney`s office will add charges after a preliminary hearing if evidence for those new charges comes out in the preliminary hearing. On the other hand, if a Defendant wants to go to trial, the a preliminary hearing is a great tool for discovering the strength of the District Attorney`s case and to lock down the testimony of the police officers.
Deciding on whether to have a preliminary hearing is a strategic decision that can only be made by an experienced criminal defense attorney. IMPORTANT — When shopping around for attorneys, ask the attorney if you have to pay more for legal services beyond preliminary hearing. Most defense attorneys will state that their services only extend up to the preliminary hearing, and that if your case proceeds beyond the preliminary hearing, then you will have to pay more money.
What you have to understand is that 99% of all preliminary hearings are lost. So if the case goes to preliminary hearing, then it will almost certainly go beyond preliminary hearing, at which point you will either be forced to pay your attorney more money OR your attorney will dump your case with the Public Defender’s office.
In 2021, the Legislature amended the law to limit the length of probation for most crimes. Penal Code section 1203.1 limits the felony probation to two years. Penal Code section 1203a limits misdemeanor probation to one year. Common exceptions include DUIs, domestic violence and sex offenses.
In November 2014, California Voters passed the Safe Neighborhood and Schools Act, which was known at the time as Prop 47. This law reduced the penalties for drug possession and other nonviolent crimes. One of its provisions was to reclassify certain types of felonies as misdemeanors.
All possession of a controlled substance charges are now misdemeanors and all second-degree burglary charges are now misdemeanors. However, drug sales, possession for sales and first-degree burglary are still felonies. Furthermore, thefts, bad check writing, forgery and possession of stolen property that involves a value of $950 or less, are also downgraded to misdemeanors.
The law applies retroactively to people previously convicted of these crimes, but the reduction is not automatic. Defendants have to apply pursuant to Penal Code section 1170.18. Furthermore, not all defendants will qualify for reduction under PC 1170.18 – it will depend on the facts and a person’s criminal history. Defendants convicted of super-strikes under Penal Code section 667(e)(2)(c)(iv) and convicted sex offenders cannot have their felonies reclassified.
The good news is that it doesn’t matter if the defendant went to state prison – they can still apply to have their felonies reclassified as misdemeanors. The bad news is that having a conviction reclassified as a misdemeanor does NOT restore a person’s right to own firearms. (However, having a felony reduced to a misdemeanor pursuant to Penal Code section 17b can restore rights to own a firearm).
The following crimes qualify for reclassification – Health and Safety Code sections 11350, 11357, 11377; Penal Code sections 459.5, 473, 476a, 490.2, 496 or 666. In People v. Page (2017), the California Supreme Court held that that this law applies to auto theft under Vehicle Code section 10851 if the value of the vehicle was $950 or less. These petitions can be important for a variety of purposes including employment, immigration, professional licensing, and housing.
Our office has successfully helped clients have their felonies reclassified. For those defendants who have made the wrong choice in the past, calling our office is the Right Choice now.
The Public Safety and Rehabilitation Act of 2016, commonly known as Proposition 57, passed in November of 2016. The three main parts to the law are (1) affecting how juveniles are prosecuted, (2) affecting when adult prison inmates are eligible for parole and (3) affecting how adult prison inmates can behavior credits in prison. Different parts of Proposition 57 became effective at different times. 1. Juvenile Justice.
Proposition 57 now requires that judges, not prosecutors, determine whether a juvenile should be charged in adult court. 2. Nonviolent Parole Eligibility. Proposition 57 makes certain inmates eligible for parole earlier. Parole isn’t automatically granted earlier but the inmate can become eligible for parole earlier.
The Board of Parole Hearings (BPH) will still review the inmate’s record and behavior to determine whether the inmate is suitable for parole and does not pose a threat to public safety. a. How does it work? Nonviolent offenders who have served the full term of their primary offense (often the offense with the greatest penalty) will be screened for referral to BPH at least 35 days before the end of the primary offense term.
Only inmates who pass an extensive public-safety screening will receive a referral. If an inmate does not pass the public-safety screening, the inmate will be screened again one year later. All inmates will be notified of the results and those who pass the screening will then be given information about the nonviolent offender parole process, including the opportunity to submit a written statement to the Board.
The Board conducts an administrative review; there are no hearings. Inmates can request a reconsideration of a Board decision within 30 days. NOTE – victims and prosecutors still have the right to be heard by BPH before parole is granted.
Who is NOT eligible?
Inmates that are: – serving death sentences – serving life sentences, with or without the possibility of parole – serving sentences on violent felonies as defined by Penal Code section 667.5(c) – required to register pursuant to Penal Code section 290 c.
What constitutes a primary offense term? This is the longest term of a sentence not including enhancements, strikes or consecutive sentences. For example, let’s a person is convicted of felony second degree burglary with a gang enhancement, and is also convicted of felony vandalism.
Let’s say this person received a sentence as follows: 2 years (mid-term) for the burglary plus 3 years (mid-term) for the gang enhancement plus 8 months (consecutive) for the vandalism. Their total sentence is now 5 years, 8 months. Under the prior law – … an inmate with no strikes on their record would be eligible after serving half their time, which in this case would be 1/2 of 5 years, 8 months, which would be 2 years, 10 months. … an inmate with a strike on their record would be eligible after serving 80% of their time, which in this case would be 80% of 5 years, 8 months, which would be just over 4 years, 6 months.
Under the new Proposition 57 – … the inmate would be eligible for parole after serving the length of their primary term offense which is 2 years. This process became effective July 1, 2017. 3. Credits. Inmates can now earn a variety of good conduct credits that will decrease their overall sentence. There are different types of credits awarded. a. Good Conduct Credits. These types of credits were available previously but Proposition 57 now increases the amount of credits available. Inmates who comply with the rules, avoid violence and perform their duties are eligible for Good Conduct Credits. All inmates are eligible to earn Good Conduct Credits except those serving life or death sentences.
The increase in credits can be shown in the chart below: Violent Offenders — PRIOR: Zero to 15% NOW: 20% Violent Offenders in Fire Camp — PRIOR: 15% NOW: 50% Non-violent 2nd or 3rd strikers — PRIOR: Zero to 20% NOW: 33.3% Day for day offenders — No change — Still 50% Non-violent offenders in Fire Camp: PRIOR: 33.3% to 66.6% NOW: 66.6% These credits can be revoked for bad behavior.
The credits because effective May 1, 2017. b. Milestone Completion Credits. These credits are awarded to inmates who complete approved rehabilitative or educational programs. Proposition 57 increases the amount of credits that can be earned in a year from 6 weeks to 12 weeks.
These credits can be revoked for bad behavior and the increase became effective August 1, 2017. c. Rehabilitative Achievement Credits. These credits involve completion of rehabilitative programming such as alcohol and substance abuse prevention, anger management, anti-gang life skills, victim awareness, best parenting practices, etc.
Inmates can receive up to 4 weeks credit per year for participation in up to 208 hours of eligible self-help programming. These credits can be revoked for bad behavior and became effective August 1, 2017. d. Educational Merit Credits. These credits are awarded to inmates who achieve a certain level of education while incarcerated.
Credit is awarded for each level of educational achievement accomplished in prison. Because it can take years to obtain a degree, these credits can range from three to six months. These credits became effective August 1, 2017. These are the only credits that cannot be lost for disciplinary reasons. All our attorneys have either worked for the District Attorney’s Office or the Public Defender’s Office.
We have the negotiating skills and trial experience necessary to get the best results for our clients. If a client is facing serious charges, we have a proven track record in getting the best deals possible to limit the amount of prison time and control any immigration consequences. For an example of our work, please see our case results and read our client testimonials.
With offices in Newport Beach, Long Beach, Diamond Bar, Rancho Cucamonga, Riverside and Murrieta our attorneys have criminal defense experience throughout Southern California, including Orange County, Los Angeles County, San Bernardino County, and Riverside County.
Proposition 47 is a law that went into effect November 6, 2014. Proposition 47 reduces penalties for drug possession and other nonviolent crimes. Under this measure, all crimes for drug possession that were previously felonies are now downgraded to misdemeanors. Prop 47 applies to crimes that involve simple possession; drug sales or possession for sales are not affected by Proposition 47.
Furthermore, thefts, bad check writing, forgery and possession of stolen property crimes that involve $950 or less of value, are also downgraded to misdemeanors. Prop 47 went into effect as soon as it was passed in November 2014, but people previously convicted of these types of crimes can petition the court to reduce them to misdemeanors. Under Penal Code section 1170.18, many people who have felony convictions can petition the courts for resentencing to have their felonies reduced to misdemeanors.
These include drug possession crimes under Health and Safety Code sections 11350, 11357 or 11377, as well theft / fraud crimes under Penal Code sections 459.5, 473, 476a, 490.2, 496 or 666. In People v. Page (2017), the California Supreme Court held that Prop 47 also applies to theft of vehicles if the value of the vehicle was $950 or less.
Who should apply for these resentencing petitions? People with felony convictions under the sections above who are: Currently serving a prison sentence and wants to be immediately released Currently have felony conviction and want their record reduced to a misdemeanor o For employment purposes o For immigration purposes o For professional licensing purposes Not everyone is eligible for relief through Proposition 47.
Defendants who have “super-strikes” on their record, as defined by Penal Code section 667(e)(2)(C)(iv) or who are required to register as sex-offenders pursuant to Penal Code section 290, are never eligible for Prop 47 relief. Prop 47 resentencing petitions are NOT guaranteed. The District Attorney’s Office will oppose these resentencing requests and the court can deny these resentencing petitions based on certain factors.
Furthermore, Prop 47 does NOT restore gun rights. The only way to get your right to possess a firearm back after a felony conviction is to get a 17b reduction. This is why you will need an experienced criminal attorney to help you navigate the system, fight the DA and convince the court to give you the relief you seek. You or someone you know may have made the wrong choices in the past. It’s time to Make the Right ChoiceTM by calling us today.
With offices in Newport Beach, Diamond Bar, Rancho Cucamonga, Riverside and Murrieta, our attorneys have experience in courts throughout Southern California, including Orange County, Los Angeles County, San Bernardino County and Riverside County. All of our attorneys are former Deputy District Attorneys or former Deputy Public Defenders.
The Adult Use of Marijuana Act (aka Prop 64 at the time) was passed in 2016 as a voter initiative to legalize cannabis. The law allows adults (21 years or older) to legally possess up to an ounce of marijuana and to cultivate up to 6 marijuana plants inside their homes.
Smoking marijuana in public is now an infraction subject to a $100 fine. Possession of marijuana for sale, which used to be a felony, is now a misdemeanor punishable by a maximum of six months in jail. Defendants can apply to have their previous marijuana convictions reclassified under Health and Safety Code section 11361.8.
The following common marijuana sections are affected: – Health and Safety Code section 11357 – possession of marijuana. Possession of an ounce or less by an adult age 21 or over is legal. Adults who possess more than an ounce of marijuana are guilty of infraction and can be required to pay a fine. Minors who possess marijuana are also guilty of an infraction but can be required to do community service in addition to paying a fine. – Health and Safety Code section 11358 – planting, cultivating or harvesting marijuana. Cultivating up to 6 plants by an adult age 21 or over is legal.
Minors who cultivate up to 6 plants are guilty of an infraction. Anyone who cultivates more than six plants is usually guilty of a misdemeanor; there are certain limited circumstances where cultivation of more than six plants can be a felony pursuant to PC 1170(h). – Health and Safety Code section 11359 – possession of marijuana for sale. First time possession of marijuana for sale is a misdemeanor.
Possession of marijuana for sale can become a felony under certain circumstances, including if a person has two prior possession for sale convictions. – Health and Safety Code section 11360 – transportation of marijuana. First time transportation of marijuana is a misdemeanor. Transportation of marijuana can become a felony under certain circumstances, including if a person has two prior convictions for transportation.
The law applies retroactively to people previously convicted of these crimes but the reduction is not automatic. Defendants have to apply pursuant to Health and Safety Code section 11361.8. Furthermore, not all defendants will qualify for reclassification. The court can deny the reclassification if it would “pose an unreasonable risk of danger to public safety”.
These petitions can be important for a variety of purposes including employment, immigration, professional licensing, and housing.
Our office has successfully helped clients have their marijuana convictions reclassified. For those defendants who have made the wrong choice in the past, calling our office is the Right Choice now.
California Public Defenders Every person is entitled to an attorney to represent them when facing criminal charges. If you cannot afford an attorney, the court will appoint the Public Defender`s office to represent you. Public Defenders are trained criminal attorneys, just like private criminal defense attorneys.
Many public defenders are intelligent, hard-working and caring people. However, there are three problems with the Public Defender`s office. First, each individual public defender has an enormous caseload. When I show up to court, I am representing one or two clients, whereas the public defender for that courtroom is defending ten to thirty defendants.
Needless to say, I can devote much more time to an individual case than a public defender can. I take the time to walk my client through every stage of the case, but a public defender may not have more than a few minutes to spend with each of their clients.
Second, you are not assigned to an individual public defender; you are just entitled to have representation from their office. Although their office will try to have the same public defender work with you, any other public defender can take over your case at any time.
As a former prosecutor, I saw many cases where multiple public defenders appeared on the same case at different times. This can be frustrating for a Defendant and make it difficult to establish the rapport necessary for a successful defense. Third, the Public Defender`s office will rarely deal with family or friends and their attorneys are incredibly difficult to contact outside of court. If a defendant hires me, he/she has access to me 24-7.
I answer my phone evenings and weekends, and I`m willing to set up client meetings during those times. Furthermore, if my client`s spouse or parent wants to become involved in the case, then I am willing to talk and meet with them to the same extent (with my client`s permission).
However, a public defender will almost never talk to or meet with family of the defendant and most of their contact with a defendant is during court. This does not mean that public defenders are bad people. The fact is that public defenders simply do not have the time to do the things that a private attorney can do. Of course, not all private attorneys are better than public defenders.
Finding the right private attorney is a matter of finding someone that you trust — you trust their competence and you trust their ability to communicate with you. One last thing to note — public defenders are NOT available to everyone and they are NOT always free.
The public defender`s office will screen Defendants and only poor Defendants can use their services. Also, even if you get a public defender to represent you, at the end of your case, the judge can order you to pay a fee for their services.
Restitution is defined as compensation for any loss or injury. In all criminal cases where a defendant is sentenced to probation, a defendant is required to pay restitution for any financial losses caused by their conduct. A court is required to order restitution as part of any probation order pursuant to Penal Code section 1203.1(a) where there is any potential economic loss.
It’s not a choice – the judge is required to order restitution but not every case will result in a restitution amount. For example, a DUI case where there is no collision will often have no restitution. But if there was an accident, then a defendant would be responsible for all financial losses that occurred as a result of their criminal conduct.
What types of losses is a defendant responsible for in restitution? Usually, restitution is limited to actual financial losses suffered by the victim or victims. Emotional pain or trauma is not covered by restitution except in certain sex cases. Examples of restitution would be the cost of fixing an item caused by vandalism, the amount of money (plus interest) that was stolen or embezzled by the defendant, the cost of hospital bills in an assault or any other crimes that results in injury, or the costs of an accident in a DUI case.
However, a victim can also request compensation for lost wages as a result of going to the hospital or even going to court. The victim can also request compensation for attorney fees if the victim hired a lawyer to help them in the civil or criminal case. Almost anything where the victim can point to a concrete financial loss that was caused by the defendant’s conduct can be requested through restitution.
And in certain sex crimes, a defendant is also responsible to reimburse the victim for any counseling or therapy they had to attend as a result of the sex crime. Does a defendant always know the amount of restitution at the time of sentencing? No. A defendant can certainly ask the prosecutor what the total value of the restitution is prior to making a plea-bargain, but sometimes the prosecutor doesn’t know the exact answer.
A restitution amount can be reached in two different ways. First, both the defense and the prosecution can stipulate to a set restitution amount that the court can order as part of sentencing. Alternatively, restitution can be ordered but the amount is “TBD” (to be determined). Then another entity will calculate the restitution amount by asking the victim how much restitution is required.
In cases where a defendant is placed on formal probation, the probation officer will contact the victim and then inform the defendant of the restitution amount being requested. In cases where a defendant is placed on informal probation, then either the prosecution or victim-witness advocate (a court organization that helps victims and witnesses) will contact the victim to determine the restitution requested.
Can a defendant dispute the amount of restitution ordered? Yes, but the law is not on the defendant’s side. If a defendant disputes the restitution amount, they can request a restitution hearing. Some counties have their own procedures. For example, in misdemeanor cases in Los Angeles County, the courts usually automatically set a restitution hearing date after the sentencing.
However, in Orange County, the defendant must contact the clerk’s office to request a restitution hearing. At a restitution hearing, the defendant can attempt to argue that they may not be responsible for some or all of the restitution being requested. In order to be successful, the defendant would have to show that the restitution requested is not related to the criminal conduct or is grossly overvalued or present some other legal theory as to why restitution should not be ordered.
If a defendant breaks a normal glass window and the victim requests $1 million dollars, then the court can state that amount is unreasonable. However, if there are two different estimates to repair that window, the victim doesn’t have to choose the cheaper one. A victim is entitled to reasonable restitution – not necessarily the average price or the cheaper price.
As long as the victim can justify the request with estimates or a receipt, the court will usually side with them. There are some areas where a defendant has a chance at contesting the amount of restitution. In accident cases, a defendant may be able to argue a theory of comparative negligence to ask for a reduction in restitution. In cases where a victim is requesting civil attorney fees, a defendant may be able to argue that the fees are related to emotional as opposed to physical losses. There may be other types of cases where a defendant has the chance to contest the restitution.
Is interest required on restitution? Yes. Once a restitution amount has been set, the court will usually require that restitution be paid as a condition of probation and will set an interest rate of 10%. That 10% can start from the date of sentencing but can also be backdated to start accruing from the date of loss. Most of the time, the courts set it from the date of loss.
The parties can stipulate to an amount of restitution that doesn’t include an interest rate but that is usually done only in cases where a defendant can pay that restitution by a certain fixed date. What happens if a defendant can’t pay the restitution or can’t pay all of the restitution? Restitution is requirement of probation.
The good news is that a defendant can’t be violated on probation for failure to pay restitution if the failure to pay is a result of the defendant not having the money. It might be possible for the court to violate the defendant for willful failure to pay restitution if it can be shown that the defendant has lots of money but just refuses to pay the restitution.
However, that would be a very unusual case because most defendants with the money to pay will use their ability to pay restitution as a bargaining chip in the negotiations of the criminal case. The bad news is that if there is unpaid restitution at the end of the probation, one of two things could happen. Most of the time, if restitution is still outstanding, then the restitution converts to a civil judgment under Penal Code section 1202.4.
However, unlike other civil judgments, restitution cannot be discharged in a bankruptcy. So it’s a civil judgment that follows the defendant for life.* However, in some situations, a court can actually extend the period of probation to force the defendant to pay restitution. There are rules as to how long probation can be extended and under what circumstances it can be extended.
See our section on probation for that discussion. Furthermore, if restitution is unpaid, the defendant may not be able to seek other relief such as having a felony reduced to a misdemeanor or having their conviction dismissed / expunged. The court will often deny dismissals and/or felony reductions if restitution has not been paid in full. Restitution law is very complex and it helps to have an attorney that is experienced in all the nuances of restitution law and how to fight at restitution hearings.
The attorneys at Right Choice Law are experienced at negotiation and disputing restitution amounts. Examples of Success Stories Fred Thiagarajah represented a defendant who was convicted of vehicular manslaughter. The victim’s sister came to court and asked for restitution.
She stated her brother supported her and her children and she wanted our client to pay for the support she lost when her brother died as a result of our client’s actions. She also stated her brother worked for the family business and the brother’s death impacted the profits of the company and she wanted to get reimbursement for the lost profits.
Finally, she argued that she missed six days of work in attending court appearances and wanted reimbursement for her lost wages. Fred filed a formal restitution brief and argued against all of the requests except lost wages. Even then, Fred argued that the victim’s sister should only receive reimbursement for four days wages.
The court ruled against the victim’s sister and held that our client was only responsible for $1500 – four days of lost wages. Fred represented a defendant who was convicted of brandishing a knife against his roommate. The roommate had to relocate and she received reimbursement from the Victim Witness Compensation Board for her moving expenses. The Board then filed a restitution request for repayment. The victim sought additional representation for attorney fees.
After reviewing the paperwork, Fred told the defendant that the Board was entitled to restitution but the victim’s attorney fee request could be fought Fred successfully argued against the attorney fees by proving that the attorney fee request involved a separate lawsuit between the victim and defendant that had nothing to do with this criminal case.
Fred represented a defendant who was convicted of felony DUI causing injury when he struck two pedestrians. Although the defendant’s insurance company made payments towards the victims, the victims went after the defendant in criminal court to recoup the attorney fees they had to spend in the civil case. The victims wanted $75,000.
Fred contacted the victim’s lawyer and negotiated a reduction to $50,000 for restitution.
In October 2017, Governor Brown signed Senate Bill 54 – legislation that officially made California a sanctuary state. The legislation becomes effective January 2018. The common definition of a sanctuary state or city, is an entity that limits cooperation with the federal government on immigration issues such as detention and deportation.
Every sanctuary state or sanctuary city has their own rules for how they want to resist the federal government. In California, the new law will prohibit local law enforcement agencies from asking people about their immigration status and prevent these agencies from sharing information with the federal government, unless the individual in question has been convicted of one or more offenses from a list of crimes outlined in the Trust Act – a 2013 law that severely limited ICE holds.
Federal immigration officials will still be able to work with state correctional officers and enter county jails to question immigrants, but the law does block holds, such as ICE holds, on people in custody. The law also prevents law enforcement officials from detaining immigrants at schools and hospitals on behalf of federal immigration agents.
Every criminal defendant has the right to a speedy trial. However, some situations arise where a defendant is charged with a crime but is never made aware of the fact that charges have been filed against them. If the prosecution files charges against a defendant but never lets the defendant know that charges have been filed, then a defendant can come back to court and ask for a dismissal of the case because they were never notified of the charges.
The basis for this motion is that the defendant’s right to a speedy trial has been violated. In California, this type of motion is known as a Serna motion. What’s an example of where a Serna motion can occur? Let’s say a perosn is arrested for a DUI and they are given an initial court date (an arraignment) of April 1st. However, the defendant appears on April 1st and charges have not been filed against them. Perhaps the DA’s office is backlogged and couldn’t file charges on time. Or perhaps the DA wanted the police to conduct further investigation in the case.
For whatever reason, charges have not been filed as of the defendant’s initial arraignment date. So the defendant shows up to court and then leaves, believing that no charges have been filed. Then two weeks later, the prosecutoir decides to file charges and mails a letter to the defendant indicating that charges have now been filed and the new court date is May 1st. If the defendant never receives that letter, then he will never know that charges have been filed against him. And if more than one year goes by, the defendant can come back to court and ask that the case be dismissed through a Serna motion.
Another example is where a defendant is accused of a crime, but is never arrested. Let’s say a neighbor claims the defendant attacked him. The police may or may not speak with the defendant. A report is forwarded to the DA’s office and the DA decides to file charges. The DA can either send the defendant a letter or can issue a warrant. But if the defendant is unaware that a case has been filed against him, he can come back to court a year later to ask for a dismissal of the charges. Not every case qualifies for a Serna motion.
The first issue that must be decided is how much time has elapsed. The basic rule of thumb in misdemeanor cases is that at least one year has to have elapsed since the court date where charges were filed. Assuming a sufficient delay has occurred since the defendant was supposed to be in court, then the court looks at four separate factors to decide whether to grant the Serna motion.
The four factors are outlined in the Supreme Court case of Barker v. Wingo.
Factor 1 — Length of delay. Although the threshold question is whether a year has elapsed, the length of delay is also a factor for the court to consider. The more time that has gone by since charges were filed, the easier it is for a defendant to argue a violation of his right to speedy trial. In many felony cases, the courts will often require a three year delay.
Factor 2 – Reason for the delay. It is the government’s job to notify the defendant that charges have been filed against him. The more attempts that the government makes to notify a defendant of a pending criminal case, the less likely that the government is violating his right to a speedy trial. However, in most cases, the government makes no active efforts to locate defendants, and in those situatoins, this factor weighs against the government.
Factor 3 — Assertion of right. Could the defendant have asserted his right to a speedy trial before this motion? If this answer is “yes”, then this factor weighs against the defendant. However, a defendant is unaware of pending charges cannot assert his right to a speedy trial.
Factor 4 — Prejudice to the defendant. The court will consider whether the delay has resulted in any prejudice to the defendant. Some courts believe this is the most important factor.
A good attorney will make it clear to the court how the delay has prejudiced the defendant’s case. Serna motions are very complex. Only experienced attorneys know how to prepare and argue them.
Fred Thiagarajah has personally handled dozens of Serna motions. When he was at the prosecutor’s office, he opposed many Serna motions filed by defense attorneys and he never lost. Now he takes that training and uses it on behalf of defendants.
Mr. Thiagarajah has filed over a dozen Serna motions throughout his career as a defense attorney, and he has won over 90% of them. That means, when he files a Serna motion, the case is completely dismissed over 90% of the time. For more information about Serna motions, or to hire an experienced Serna motion attorney, please contact our office.
Standards of Evidence In any type of legal case, there are different standards of evidence by which the case is proved. The different standards are: preponderance of the evidence; clear and convincing evidence; beyond a reasonable doubt. Preponderance of the Evidence Preponderance of the evidence is the lowest standard of proof.
It requires that the accusing party must have at least 51% of the evidence on their side. Most civil cases require that the plaintiff prove the case by showing a preponderance of the evidence on their side. Another example of this standard is in DMV hearings for DUI cases.
When a person is arrested for a DUI, the DMV holds a hearing as to whether the person should keep their driver’s license. At this hearing, the DMV must prove that the person’s blood alcohol level was .08% or higher. The DMV only needs to show that the evidence is 51% on their side to win the hearing. Another example of this standard is in domestic violence restraining order cases. The petitioner, or alleged victim, only needs to show the court that 51% of the evidence supports their case.
Clear and Convincing Evidence Clear and convincing evidence is the middle standard of proof. There is no percentage that is associated with clear and convincing evidence, but it requires that the accusing party must have significantly more than 50% of the evidence on their side. Most family court cases require a clear and convincing evidence standard. Also, civil restraining order cases use a clear and convincing evidence standard.
Proof Beyond Reasonable Doubt Proof beyond a reasonable doubt is the highest standard of proof in the United States, although there is no percentage that is officially assigned to this standard. This is the standard of proof that is used in all criminal cases. In order for a jury to convict someone in a criminal case, they must find them guilty “beyond a reasonable doubt”. This means, the jurors must have “an abiding conviction of the truth of the charge.”
Proof beyond a reasonable doubt is not proof beyond all doubt, because everything in life is open to some possible doubt. However, the standard of proof beyond a reasonable doubt is one of the strongest safeguards people have when accused of a crime.
The Right Lawyer Fred Thiagarajah has used all three standards of evidence in hundreds of cases, including DMV hearings, domestic violence restraining order cases, civil restraining order cases and criminal cases.
As a graduate of USC Law School from 1999, Fred Thiagarajah has the intelligence and experience to get the best results possible. With criminal defense offices in Newport Beach, Riverside and Beverly Hills, Fred Thiagarajah has criminal defense experience in Orange, Riverside and Los Angeles Counties.
California Statute of Limitations Attorney The statute of limitations is a limit as to the time that the District Attorney`s office can file charges on a case. The statute of limitations usually depends on the maximum punishment allowed. In felony cases, the statute of limitations varies depending mainly on the maximum punishment of the crime.
Penal Code section 799 states that where the maximum punishment is life in prison, there is no statute of limitations and prosecution can occur at any time. Penal Code section 800 states that where the maximum punishment is eight years in prison or more, charges can be filed within six years of the offense.
Penal Code section 801 states that in felony cases where the maximum punishment is less than eight years in prison, charges can be filed within three years of the offense. There are certain exceptions to the above rules. For example, crimes involving elder abuse usually have a statute of limitations of five years. There is also no time limit to file charges in cases involving the embezzlement of public money.
There are special rules for certain types of sex crimes. Most felony sex crimes that involve registration pursuant to Penal Code section 290 have a statute of limitations of ten years from the date of the offense, according to Penal Code section 801.1(b). Penal Code section 311.4(b) has a statute of limitations of ten years from the date of production of the pornographic material, according to Penal Code section 801.2.
There is a list of serious sexual offenses where the statute of limitations is much longer. These offenses are listed in Penal Code section 801.1(a) and for these offenses, the crimes can be prosecuted anytime prior to the victim’s 40th birthday, with some exceptions for crimes occurring before 2015. There are certain enhancements that can extend the punishment for a crime, but enhancements are not taken into account when determining the statute of limitations, pursuant to Penal Code section 805(a).
For example, the maximum punishment for assault with a deadly weapon is four years, which makes the statute of limitations three years. If a personal use of a firearm enhancement was charged, the maximum punishment would jump up to 14 years, but the statute of limitations would still remain at three years. In most misdemeanor cases, the statute of limitations is one year, pursuant to Penal Code section 802.
However, a violation of misdemeanor Penal Code section 647.6 – annoying / molesting a child – where the victim is under 14 can be prosecuted within two years of the offense. Also misdemeanor sexual exploitation of a patient by a doctor or therapist or counselor, pursuant to Business and Professions Code section 729, can also be prosecuted within two years of the offense.
Penal Code section 801.1 states that if a crime is a wobbler but charged as a misdemeanor, then the statute of limitations is still subject to felony rules – namely, maximum punishment.
California has enacted a “Three Strikes Law” designed to punish repeat offenders. The law designates certain felonies as “strikes”. A strike is a violent or serious felony, as defined by Penal Code sections 667.5 and 1192.7. The law increases penalties if defendants have strikes on their record. Strikes will also determine whether a defendant gets county prison or state prison, how much credit a defendant can receive in prison and when a defendant is eligible for parole.
Most of the time serious felony strikes and violent felony strikes are treated the same, but there is a difference when it comes to who is eligible for parole. How does Three Strikes work? If a defendant has a strike conviction in their past, then the next time the defendant is charged with any felony, the sentence range doubles.
For example, if a person with a strike on their record is charged with second degree burglary, then the low term of 16 months is doubled to 32 months; the mid term of 2 years is doubled to 4 years; and the high term of 3 years is doubled to 6 years. It doesn’t matter if the new felony is a strike. The sentencing range doubles for ANY new felony. If a defendant has two strikes on their record, and the new felony is also a strike, then the defendant could be punished by life imprisonment. This is the “Three Strikes” part of the law.
Two strike offenses can be earned from the same case. This is especially dangerous in that one crime can lead to two strikes, which in turn makes the defendant susceptible to life imprisonment if just one more strike is picked up any point in their life. Strikes are permanent. A defendant can be given a higher sentence even if the strike occurred thirty years ago. Strikes also remain even if the underlying felony is reduced to a misdemeanor. For example, Penal Code section 422 is a wobbler and a strike.
If a defendant was convicted of a felony PC 422, then they have a strike. If that PC 422 conviction is later reduced to a misdemeanor, the defendant still has a strike. Romero Motions A Romero motion is a motion by the defense requesting that the judge ignore one or more of the defendant’s prior strike offenses for sentencing purposes. The success of a Romero motion depends on many things, including how long ago the prior strike was and the defendant’s overall criminal history.
If a defendant was convicted of a strike in 2000 and their very next crime was now, then a court may grant a Romero motion. But if a defendant was convicted of a strike in 2000, and then had numerous other convictions between 2000 and now, then a court probably would not grant a Romero motion. Penal Code section 1170(h) A defendant who has a prior strike conviction on their record, or whose current case involves a strike conviction, becomes ineligible for sentencing pursuant to Penal Code section 1170(h).
That means that if the defendant is sentenced to prison after October 1, 2011, that prison time must be served in state prison, as opposed to county jail. Proposition 57 Strikes can also play a role in whether a defendant qualifies for parole earlier. The Public Safety and Rehabilitation Act, commonly known as Proposition 57, which passed in 2016, allows defendants in state prison to apply for parole after serving the full term of their primary offense.
This means that defendants are eligible for parole much earlier than they would have been before Proposition 57 passed. However, defendants in prison for a violent felony strike are not eligible for early parole. This may affect plea negotiations.
Experienced defense attorneys can negotiate a plea that involves a higher sentence but a non-violent felony strike so that a defendant may actually be eligible for parole earlier than with a shorter sentence and a violent felony strike.
List of Common Strikes that are both Violent pursuant to Penal Code section 667.5(c) and Serious pursuant to Penal Code section 1192.7 Arson – Arson defined by Penal Code sections 451(a) or (b) Assault with intent to commit felony as defined by Penal Code section 220 (assault with intent to commit mayhem or certain sex crimes) Burglary, First Degree, where a person other than an accomplice is present Carjacking– Penal Code section 215(a) Child molestation – see Lewd or Lascivious Act Continuous sexual abuse of a child – Penal Code section 288.5 Firearm, personal use – in violation of Penal Code sections 12022.3(a), 12022.5 or 12022.55 Gang, for the benefit of – Extortion (Penal Code section 518) and Witness Intimidation (Penal Code section 136.1) pursuant to Penal Code section 186.22 GBI – any felony where defendant personally inflicts great bodily injury on someone other than on an accomplice – Penal Code sections 12022.7, 12022.8 and 12022.9 Lewd or lascivious act – violations of Penal Code section 288(a) or (b) (where victim is under the age of 14) Mayhem Murder or attempted murder – Penal Code section 187 Oral copulation as defined by Penal Code sections 288a(c) or (d) Rape – violations of Penal Code section 261(a)(2) or (6) Rape of spouse – violations of Penal Code section 262(a)(1) or (4) Robbery – Penal Code section 211 Sexual penetration as defined by Penal Code section 289(a) Sodomy as defined by Penal Code section 286(c) or (d) Voluntary manslaughter Any felony punishable by death or life imprisonment Violent not serious Oral Copulation as defined by Penal Code section 288a(c)(1) – oral copulation on a minor under the age of 14 where perpetrator is more than 10 years older Sexual penetration as defined by Penal Code section 289(j) Sodomy as defined by Penal Code 286(c)(1) – sodomy on a minor under the age of 14 where perpetrator is more than 10 years older Serious not violent Arson – Arson as defined by Penal Code section 451(c) Assault with a deadly weapon on a peace officer or firefighter as defined by Penal Code section 245 Assault with a deadly weapon on a transit officer (PC 245.2), custodial officer (PC 245.3) or school employee (PC 245.4) Assault with a deadly weapon by an inmate Assault with intent to commit robbery Burglary of the first degree – Penal Code section 459-460(a) Criminal Threats – Penal Code section 422 Deadly weapon – any felony where defendant personally uses dangerous or deadly weapon Drugs – selling or furnishing heroin, cocaine, PCP or meth to minors Firearm – any felony where defendant personally uses one Firearm – discharging at inhabited dwelling, vehicle or aircraft – Penal Code section 246 Gang, for the benefit of – all violations of Penal Code section 186.22 Grand theft involving a firearm Lewd or lascivious act – all violation of Penal Code section 288 including 288(c) (where victim is 14 or 15 years old) Rape – all violations of Penal Code section 261 and 262 Threats to witnesses or victims – PC 136.1 The list of serious but not violent offenses is important for early parole pursuant to Proposition 57. It is also important for determining credits when a person is in custody. If a defendant is convicted of a violent felony, then he only gets 15% credits in county jail but may receive 20% credits while in prison. If a defendant has a strike prior on their record, then he only gets 20% credits in county jail. Any attempt or conspiracy of a serious felony also constitutes a serious felony (except assault – cannot attempt an assault because an assault is already an attempt) pursuant to Penal Code section 1192.7(c). However, an attempt of a violent felony is not a violent felony with the exception of attempted murder pursuant to Penal Code section 667.5(c). A complete list of strike offenses is listed in Penal Code sections 667.5(c) and 1192.7(c).
Other Consequences
Not only can a strike conviction lead to higher criminal penalties, but it can also have drastic employment, licensing and immigration consequences. Any strike conviction is considered to be one of the worst offenses possible. Having a strike conviction can prevent a person from finding a job or lead to a person being fired from their current job.
Furthermore, many professions that require licensing from a state board, such as doctors, pharmacists, nurses, lawyers, accountants, contractors, teachers, real estate agents and stock brokers, all require background checks. A professional who has a strike conviction on their record risks losing their professional license, or never acquiring it in the first place. Perhaps the most severe impact of a strike conviction involves immigration consequences.
Non-citizens who are permanent residents, with green cards, or temporary visitors, with a visa, can be denied admission, denied naturalization or even deported, with almost any strike conviction on their record. The Right Lawyers Choosing the right criminal defense lawyer will be the most important decision someone can make when a facing a strike charge. You need an attorney who will listen to your side of the story carefully, who will evaluate the evidence thoroughly, who will negotiate with the judge and the District Attorney’s office skillfully, and who will fight in trial aggressively.
You need an attorney from the Right Choice Law Firm. All of our attorneys are experienced lawyers who are either former Deputy District Attorneys or Deputy Public Defenders. For an example of our work, please see our case results on strikes and read our client testimonials.
With offices in Newport Beach, Anaheim, Long Beach, Los Angeles, Pasadena, Rancho Cucamonga, Riverside and Murrieta, our team of lawyers have criminal defense experience in Orange, Los Angeles, San Bernardino and Riverside Counties.
A DUI conviction in California (or in any other state) will prevent travel to Canada. Anybody with a DUI conviction is deemed “criminally inadmissible”. Canadian authorities are quite strict about who is allowed to enter the country and even lesser-DUI related charges, such as a “wet and reckless” will count as a DUI conviction.
It is possible overcome Canadian criminal inadmissibility of a DUI conviction, but it is very difficult to do so. Here are some possible solutions. Deemed Rehabilitation – You may be “deemed rehabilitated” if five to ten years have passed since the completion of your DUI sentence and you have not engaged in any other criminal activity.
The number of years that you are required to wait depends on the severity of the underlying offense. You don’t have to submit an application if you are deemed rehabilitated, but we encourage you to contact the US Consulate to confirm your eligibility to enter Canada.
Individual Rehabilitation – You can apply for individual rehabilitation if you are currently leading a stable life and not involved in criminal activity. However, there is an extensive application process and you still have to wait five years after the completion of your DUI sentence to apply. Under Canadian law, completion of your DUI sentence involves termination of all conditions of your sentence.
For example, if you were received three years probation in your DUI case, your sentence is only completed after your probation expires. That means you would have to wait an additional five to ten years AFTER probation is expired to be eligible for deemed rehabilitation or individual rehabilitation.
Temporary Resident Permit – You can obtain a temporary resident permit at any time, but these permits are only justified under compelling circumstances. Such exceptional circumstances include reasons of national interest or strong humanitarian or compassionate grounds.
Pending DUI charges — You may not be able to visit Canada even if you have DUI charges pending. Canadian Immigration considers a visitor “criminally inadmissible” if they have pending DUI charges or an outstanding warrant for their arrest.
For more information on these solutions, you can visit Canada’s Citizenship and Immigration site.
Types of Crimes – Infraction, Misdemeanor, Felony An infraction is defined as a crime for which you cannot go to jail. Most traffic tickets are infractions. If you are charged with an infraction, you can usually represent yourself in traffic court. If you are charged with an infraction, you are NOT entitled to the use of the public defender and you are NOT entitled to a jury trial.
Our office will represent people on infractions in certain cases, but most of the time, you don`t need to hire an attorney for these matters. A misdemeanor is a crime for which the maximum punishment can be up to one year in the county jail. There are many misdemeanors where the maximum punishment is less than a year, but there are no misdemeanors where the maximum punishment is more than a year.
Misdemeanor crimes range from drunk in public to DUI to domestic violence to sexual battery. Some misdemeanor crimes are so serious that a conviction requires lifetime sex-offender registration under California Penal Code section 290. The courts have repeatedly ruled that lifetime sex-offender registration is constitutional, even for misdemeanor convictions.
Felonies are crimes for which the maximum punishment involves more than one year of custody time. If a Defendant is given more than one year of custody time, then they must be sent to state prison. The maximum amount of time in state prison depends on each individual felony.
Felonies are usually considered more serious crimes and include such crimes as first-degree burglary,drug possession for sale, violent offenses such as assault with a deadly weapon, and most sex crimes such as rape and possession of child pornography. The Right Lawyer Choosing the right criminal defense lawyer will be the most important decision someone can make when facing a misdemeanor or felony.
Many people who face misdemeanor or felony crimes are good people who made a mistake or exercised poor judgment. There are also some people who have been wrongfully accused of a misdemeanor or felony crime, based on a misunderstanding or false evidence.
You need an attorney who will listen to your side of the story carefully, who will evaluate the evidence thoroughly, who will negotiate with the judge and the District Attorney’s office skillfully, and who will fight in trial aggressively. You need attorney Fred Thiagarajah. As a former Deputy District Attorney, Fred Thiagarajah has the negotiating skills and trial experience necessary to get the best results for his clients, for criminal cases and immigration consequences.
For an example of his work, please see his case results and read his client testimonials. With offices in Newport Beach, Beverly Hills and Riverside, Fred Thiagarajah has criminal defense experience in Orange, Los Angeles and Riverside Counties.
Southern California Warrant Attorney A warrant is a court document that authorizes the arrest of a person. All warrants have to be signed by a judge. There are two types of warrants — arrest warrants and bench warrants.
An arrest warrant is requested by a law enforcement agency and/or the District Attorney`s office when they believe someone has committed a crime and they want to file criminal charges against this person. Arrest warrants are only necessary in situations where the police do not directly observe the crime taking place. If the police directly observe the crime, they can arrest a person at the scene of the crime.
If the police do not directly observe the crime, then they can only arrest a person with a warrant. The subject of the arrest warrant is never notified in advance, so the first time a person usually becomes aware of an arrest warrant is when they`re being arrested. Arrest warrants are usually issued for felony cases only. Law enforcement officers will rarely ask for an arrest warrant on misdemeanor cases.
Bench warrants are issued by the court when a defendant fails to appear for a required court appearance or fails to complete a requirement of their sentencing and/or probation. In many cases, the court will send a letter to the defendant informing them that a bench warrant has been issued and directing the defendant to come to court as soon as possible to resolve the matter. If the defendant does not come to court, then he/she can be arrested by any law enforcement agency and brought to court.
If the matter is a felony, then law enforcement agencies (including the probation department) may actively seek to find and arrest the defendant. If the matter is a misdemeanor, then the defendant will usually only be arrested on the warrant if he/she encounters the police for some other reason. For example, when a person is pulled over for a traffic violation, the police officer will usually take a person`s driver`s license to check if there are any outstanding warrants for the person`s arrest. If you show up to court on your own, either for an arrest warrant or a bench warrant, there is a high chance that you will be arrested that day, before the judge determines what to do on your case.
In most cases, bail will be set, which means that you won`t be released until you post bail. This could lead to spending days in jail without having the opportunity to talk to the court about your case. Whether you have an arrest warrant or a bench warrant, you should have an experienced criminal warrant recall attorney with you to assist in having the warrant recalled.
In some misdemeanor cases, our attorney can go to court on your behalf and recall the warrant without you showing up to court. In many cases, our attorneys have been able to get the warrant recalled and the problem resolved without our clients spending a single minute in jail. If the court or the district attorney`s office is seeking bail, then we can argue for a bail reduction, and we will arrange for a bail bondsman to be present so that bail can be posted immediately.
The Right Lawyer With offices in Newport Beach, Beverly Hills and Riverside, Fred Thiagarajah has criminal defense experience in Orange, Los Angeles and Riverside Counties.
A wobbler is any crime that can be charged as either a misdemeanor or a felony. Common wobbler charges include: * Penal Code section 245(a)(1) – assault with a deadly weapon * Penal Code section 273a(a) – child endangerment where GBI can occur * Penal Code section 273d(a) – child abuse * Penal Code section 273.5 – domestic violence with injury * Penal Code section 422 – deadly threats * Penal Code section 459-460(b) – second degree burglary (aka commercial burglary) * Penal Code section 487 – grand theft * Vehicle Code section 23153 – DUI with injury
The District Attorney’s office will decide whether a person is charged with a felony or misdemeanor depending on the specific circumstances of each case. An experienced attorney might be able to speak with the District Attorney’s office ahead of time to convince them to file a charge as a misdemeanor as opposed to a felony, but that would require hiring an attorney almost immediately after being arrested.
If a crime is charged as a felony, it can later be reduced to a misdemeanor, either by the DA (through negotiation) or by the judge (over the DA’s objection). Furthermore, after a case has finished and probation has expired, a judge can reduce a felony to a misdemeanor pursuant to a 17(b) motion. This motion can be used to reduce any felony-wobbler to a misdemeanor as long as the defendant was not sent to state prison for the offense.
The maximum penalty for any wobbler that is charged as a misdemeanor is one year county jail. For most wobbler offenses, the maximum penalty is 3 years state prison if the crime is charged as a felony. However, there are some exceptions to this rule.
For example, the maximum punishment for felony child endangerment, Penal Code section 273a(a), or felony child abuse, Penal Code section 273d(a), is 6 years state prison. Other Consequences The difference between a misdemeanor or a felony can have a severe impact on immigration status, employment and licensing status. There are several crimes that might not lead to deportation or denial of admission with a misdemeanor conviction but could lead to these deportation or denial of admission with a felony conviction.
Some employers only ask whether their employees have been convicted of a felony. Every felony conviction must be reported to a licensing agency and felony convictions are treated more harshly than misdemeanor convictions. The Right Lawyer Choosing the right criminal defense lawyer will be the most important decision someone can make when facing a wobbler charge. Many people who wobbler charges are good people who made a mistake or exercised poor judgment.
There are also some people who have been wrongfully accused of a wobbler, based on a misunderstanding or false evidence. You need an attorney who will listen to your side of the story carefully, who will evaluate the evidence thoroughly, who will negotiate with the judge and the District Attorney’s office skillfully, and who will fight in trial aggressively.
You need an attorney like Fred Thiagarajah. As a former Deputy District Attorney, Fred Thiagarajah has the negotiating skills and trial experience necessary to get the best results for his clients. Since he has prosecuted wobbler cases as a prosecutor, he now uses his experience in wobbler cases to get the best possible outcomes for his clients.
For an example of his work, please see his case results and read his client testimonials. With offices in Newport Beach, Beverly Hills and Riverside, Fred Thiagarajah has criminal defense experience in Orange, Los Angeles and Riverside Counties.
Our team at Right Choice Law is backed by 60 years of combined experience.
You don't need just a good attorney. You need an attorney that you can trust to protect your future.
We are committed to our clients. We will spend as much time as it takes to get the best result possible.
At Right Choice Law, all of our lawyers are former Deputy District Attorneys.
Principal Attorney Fred Thiagarajah is a member of MENSA, the international high-IQ society.
Laws are constantly changing. Our attorneys are up to date on all the latest developments with constant research and regular attendance at seminars.
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