General Information on Criminal Law

Published on: August 18, 2011

In Orange County, CA, Race Matters In Picking A Jury, Part Two

by Law Offices of Rudolph E. Loewenstein

“A party may not use a peremptory challenge to remove a prospective juror on the basis of an assumption that the prospective juror is biased merely because of his or her race, color, religion, sex, national origin, sexual orientation, or similar grounds.” Code of Civil Procedure Section 231.5.

If a party (represented by his or her lawyer) uses a peremptory challenge in an effort to systematically exclude a member of a recognizable group, it is error under both the California State Constitution and the United States Constitution. But, as a trial lawyer, I thought for years that I just wanted fair, impartial, open minded jurors. I thought race didn’t matter if someone was “fair”. I was wrong. Race matters even more than the strength of the evidence or the law given to the jury by the judge.

To date, I have tried well over one hundred and seventy five jury trials. These trials have been for almost every conceivable charge, from assault and battery, to shop lifting, to sexual assault, to burglary to even health code violations, all the way to first degree murder with special circumstances. In each of these trials the jurors swore they would view the evidence impartially, without bias for or against the Defendant, and would apply the law equally as instructed by the judge.

Published on: August 15, 2011

In Orange County, CA, Race Matters In Picking A Jury, Part One

by Law Offices of Rudolph E. Loewenstein

A Defendant has a right to have a jury of his peers decide his fate. Twelve people drawn randomly from the community who come to the courthouse and vote on the guilt or innocence of the accused. The Constitution requires the selection come from a cross-section of the population of the area served by the court.

Source lists are compiled from voter registration roles, driver’s license lists, utility company lists, telephone directories, and Department of Motor Vehicles’ identification card records. Generally speaking, a prospective juror has to be a citizen of the United States, live in California and be a resident of the jurisdiction in which the case is being tried. The juror cannot have a disability which would prevent him or her from judging the case, speak English well enough to understand the proceedings, not be convicted of a felony or of malfeasance in office, not be the subject of a conservatorship, and not be simultaneously serving on a grand jury.

The picking of a jury requires the attorney to decide who shall sit on the jury to decide his client’s fate. The prospective jurors must assure the court that they can decide the case based solely on the law and the evidence. The lawyer looks for body language signals as well as the actual answers to the questions posed to the prospective jurors. It isn’t always as obvious as a rolling of the eyes or a shrug of the shoulders. Many times it is the inflection of the voice or a shifting uncomfortably when answering the questions.

Published on: August 2, 2011

Failure To Appear For DUI When You Are Only Temporarily In Southern California

by Law Offices of Rudolph E. Loewenstein

When you are on vacation in Southern California or if you are here on business and you are arrested for DUI what happens if you fail to appear for your first court appearance?

In order to be released when you are arrested, you will either post bail or be released on a written promise to appear on a specific date. One of the problems that the person arrested has is that if he is from out of state he or she won’t be in California when the court date comes. When the court date arrives, if the Defendant doesn’t show up, the judge has no choice but to issue a bench warrant for the absent Defendant’s arrest. Any bail that is posted will be forfeited. An additional charge of failing to appear will be added to the Defendant’s charges and pose an additional problem.

Once the warrant is issued for the Defendant’s arrest he or she becomes a fugitive. Several common issues can present itself to people with warrants out for their arrest. For example, if the Defendant goes through an airport, a security check will show the arrest warrant. Once that happens, depending on where it occurs, the Defendant could be arrested right then and there at the airport. At this point the person arrested would have to post bail at an increased amount from the original arrest.

Published on: July 27, 2011

Cuts in the Court System Budget

by Law Offices of Rudolph E. Loewenstein

Recently the California State Legislature passed a budget which called for massive cuts in the funding for California’s court system. These spending cuts will no doubt cause many litigants to have justice delayed or even denied altogether. Hundreds of clerks in the San Francisco County court system have been given lay-off notices.

Many people in today’s environment are unsympathetic. Often commentators speak of the government having too many employees that don’t work hard enough and a few less won’t make any difference. Those talking heads are quite simply wrong.

Most of the court clerks and employees are hard working individuals who have to meet the public on a daily basis, working with them to solve their problems. Those problems come from citizens who are usually unhappy in the first place with being in court. No one enjoys coming to court to pay a traffic ticket, deal with the dissolution of their marriage or contemplate being evicted from their home or business. Yet this is the daily work load of these employees who are being terminated from their jobs. Once these trained individuals are gone who will get the people’s business done?

Published on: July 22, 2011

The Human Side of Illegal Immigration

by Law Offices of Rudolph E. Loewenstein

A criminal defense lawyer must always be aware of whether his client is a citizen or not. A case can have huge a huge impact on a defendant’s life if he is not a citizen. Many city and county jails now screen their inmates to determine whether they are in the country legally or not.

Even if one is in the United States legally with a “green card” one can be deported if a conviction is sustained in court. In California, every guilty plea on any misdemeanor or felony requires the court tell the defendant that if he pleads guilty it may have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States. What this means to the criminal defense lawyer is that he must resolve the case for his client without any jail time.

The fact that a client says, “I can’t go to jail” won’t make it so. Many times the lawyer will do all that he or she can but the law requires jail time. Once the defendant enters the jail system the Department of Immigration Customs and Enforcement (ICE) will swoop in on them and issue a detainer holding them in custody even once the jail time is served. A small offense can lead to swift deportation from the country. The defense lawyer knows what is at stake.

Published on: July 6, 2011

Criminal Child Abduction and Custody Orders

by Law Offices of Rudolph E. Loewenstein

Penal Code Section 278.5 controls the criminal law in the area of Court orders and custody proceedings. When a parent or other person or even a governmental agency has a right to custody of a child according to a Family Law Court order or any court of competent jurisdiction, that person has the right to physical care, custody and control of the child.

Disputes often arise between father and mother during divorce proceedings over the custody of their child or children.

When the Family Law Court makes an order regarding custody or visitation one side or the other can be very unhappy. This dissatisfaction with the custody order can lead to one parent or the other disobeying the court. This disobedience of the court can lead to charges being filed by the District Attorney which are often called “child stealing”.

Published on: June 22, 2011

Pimping in Orange County, California (Penal Code Section 266h)

by Law Offices of Rudolph E. Loewenstein

When you are arrested for a violation of Penal Code Section 266h you need a lawyer right away. The minimum sentence for a violation of the Pimping statute is three years in State Prison. If you are convicted of this offense the judge does not have the ability to give you probation. You MUST go to prison for as much as six years. You need a great criminal defense lawyer to defend you against these serious charges.

This particular Penal Code Section states, in part, that “any person who, knowing another person is a prostitute, lives or derives support or maintenance in whole or in part from the earnings or proceeds of the person’s prostitution, or from money loaned or advanced to or charged against that person by any keeper or manager or inmate of a house or other place where prostitution is practiced or allowed,, or who solicits or receives compensation for soliciting for the person, is guilty of pimping….”

Knowing the exact language of the section is important. But, realizing what it takes to beat the charge of Pimping is critical. The main issue that the District Attorney must prove is that the person arrested and charged knew that the source of money was prostitution. That is not always easy for the District Attorney to prove. Many times the prostitute is not telling people where her money comes from nor does the person getting the benefit of it ask. Even if the defendant knows prostitution is the source of the money earned, proving that the defendant knows can be very difficult.

Published on: June 17, 2011

In an Orange County Criminal Case, Why Should You Hire An Attorney Immediately?

by Law Offices of Rudolph E. Loewenstein

Why should you hire your attorney immediately? Some people will advise you that you don’t even need a lawyer. Others will tell you that you should wait to hire a lawyer so you can see what you are actually charged with or if you are charged at all. I would tell you that waiting to hire your attorney can be a big mistake. Here’s why.

When you get in trouble with the police, reports are written. Witnesses are interviewed. Decisions by the police are made and then reports are forwarded on to the District Attorney. The District Attorney reads the reports and decides what charges to file against you. What information does the District Attorney have? The answer is only the information that the police give him. This can lead to charges being wrongfully filed against innocent people. It can also mean that more serious charges can be filed than would otherwise be filed if your lawyer talked to the District Attorney and gave him information that could help lead to a fair evaluation of the all the evidence BEFORE filing charges.

If you hire your lawyer immediately after contact by the authorities, your lawyer can give information to the police which could lead to your exoneration. The information your attorney forwards to law enforcement can cause them to re-think the strength of their case. In most occasions, even if the police are not convinced that your information exonerates you, the information you have given them will be forwarded to the District Attorney at the same time as the police reports and can lead the District Attorney to question whether the case should be filed.

Published on: June 8, 2011

Shoud You Waive Preliminary Hearing?

by Law Offices of Rudolph E. Loewenstein

Unless a defendant is charged by way of a grand jury indictment he or she is entitled to a Preliminary Hearing. At a Preliminary Hearing a judge determines whether there is sufficient evidence against a defendant to justify going to trial. It is often called a probable cause hearing. Officers must testify to evidence and be subject to cross examination by the defendant.

Before Proposition 115 was passed several years ago, a Preliminary Hearing was thought to be a critical stage of the proceedings. It was a time when the defense could challenge the evidence and have a “free shot” at the witnesses on cross examination. The law has changed and how a criminal defense lawyer represents his clients has to change with it.

In deciding whether or not to conduct a Preliminary Hearing, a defendant needs to think about what he want to get out of it. For example, if a defendant wants to question the police officer about descriptions given by a witness he would not waive Preliminary Hearing. If a defendant wants to present an affirmative defense at the Preliminary Hearing in order to try and prove his innocence, a Preliminary Hearing is required.

Published on: June 2, 2011

Representing the Elderly in Criminal Matters In Orange County, CA

by Law Offices of Rudolph E. Loewenstein

An elderly criminal defendant who commits a crime is in an especially difficult position. What does the criminal justice system do with a defendant who has violated the law but who is of an age where it makes no sense to put him in jail? An elderly defendant can be someone who kills their aged and desperately ill spouse, acts out because of conflicting medications and a diminished mental state or perhaps someone who has committed an economic crime in an effort to make ends meet when he is on a fixed income.

Recent examples in the court system point out the difficulties in representing defendants who are elderly. In an economic crime like Worker’s Compensation Fraud an elderly defendant might continue to work after getting injured on the job simply to ensure that he is able to pay the bills. Of course, it is illegal to work without reporting that fact while receiving Worker’s Compensation benefits. This is because those benefits are based on the theory that the defendant isn’t working.

However, Worker’s Compensation benefits rarely allow the recipient to pay his bills. Many times young and old alike are tempted to work even though they are not supposed to while getting Worker’s Compensation benefits. If one gets benefits, those benefits will be cut or even terminated if the defendant goes back to work. If an elderly defendant is working to supplement his income and gets hurt he may be unable to even pay for his medicine and necessities of life.