Articles Posted in General Information on Criminal Law

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How does a lawyer conduct jury selection? What is he looking for? Why did he kick me off the jury panel? How could he think I wouldn’t be fair? Jury selection is sometimes called an inexact science at best. At worst, it’s like throwing darts at a target blindfolded and hoping for the best.

As a seasoned criminal defense lawyer, I tend to think that jury selection is incredibly important. However, rather than an inexact science, I tend to think I am fighting against the notion that people will automatically side with the District Attorney just because my client scares the crap out of them.

When preparing for trial I think about what kind of a juror would be good to hear this kind of case. In a DUI for example, I want the following: licensed drivers, drivers who will have dinner a glass of wine and then drive themselves home, someone who doesn’t have a religious issue with alcohol, and someone with an open mind. The open mind is last because everyone will say he has an open mind (unless he is simply doing everything possible to get out of jury service).

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When an employee gets accused of taking money, merchandise, products, or writing checks without permission from his employer it almost always costs the employee his or her job. Often times the employer will call in law enforcement to back up the claim of theft. Why? Many times it is in the employer’s interest to have the theft investigated and prosecuted by the District Attorney.

The employer may have insurance which will reimburse the employer for losses caused by employee theft. If embezzlement or theft charges are filed, the District Attorney will, by the very filing of charges, protect the employer from allegations by the employee that he or she was wrongfully discharged or fired.

For example, if the worker is preparing to file a sexual harassment charge against the employer what better way to prevent the sexual allegations from being found to be true than to claim the employee stole from the company? The fact that the theft claim is made first puts the employee on the defensive and makes the sexual harassment allegations appear as merely retaliatory for the employer’s claims of theft. This is just one example of how the employer might wrongfully accuse a worker in an effort to protect himself from allegations of wrongdoing.

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What if the person who is the victim in my case doesn’t want to prosecute? Can I work out a money deal with him so that he is paid restitution and I am not prosecuted? The answer to this question is: sometimes. It’s not buying justice or bribing someone so they don’t cooperate with the police or the prosecution. The Penal Code actually provides for this perfectly legal resolution of some criminal cases.

Penal Code Sections 1377 and 1378 deal with these issues. Penal Code Section 1377 states: “When the person injured by an act constituting a misdemeanor has a remedy by a civil action, the offense may be compromised as provided in Section 1378”. The types of crimes expressly excluded from this remedy are: 1) acts committed upon or by an officer of justice, while in the execution of the duties of his or her office, or; 2) acts done riotously, or; 3) acts done with an intent to commit a felony, or; 4) acts done in violation of any court order in a domestic situation, or; 5) upon a family or household member or any person when the violation involves any person described in certain sections of the Family Code or a particular section of the Penal Code, or; 6) acts upon an elder, or; 7) acts upon a child. As you can imagine there are public policy reasons that the court won’t allow cases to be dismissed upon payment of monies in a compromise.

However, this leaves many cases which can be compromised and possibly dismissed.

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There are several ways the police can end up with your property. Several of the most common methods of seizure include the following:

1. During an arrest your personal property is taken into custody for safe keeping and booked into property;

2. Property has been found at a crime scene and you get notified; and/or you lend your car or other legitimately possessed article of property to someone who gets arrested;

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When you sign a citation after a traffic violation you are promising to appear in court on the date the officer places on the citation. Many people don’t read the bottom portion of the citation when they officer tells them to sign and they’ll be on their way. In fact, if you sign the citation promising to appear and you don’t make your appearance, the court will issue a warrant for your arrest. A traffic citation is usually an infraction punishable by only a fine. However, if you fail to show up when your case is set your infraction will escalate into a misdemeanor failure to appear, punishable by an additional fine and jail time.

If you are arrested on a misdemeanor and you fail to appear on the date given you when you were released from jail, several things will happen. An additional charge of failing to appear will be filed as a misdemeanor. The amount of your bail will be forfeited. If you posted cash bail, the cash will be forfeited to the Court. If you posted a bail bond the bond will be forfeited and the bail bond company will try to take any property you used for collateral on your bond. If your bond was issued with just a signature and there wasn’t any property used as collateral the bail company will go after the assets of the person who agreed to be responsible for your coming to court.

Finally, if you have been released either on a written promise to appear or on bail on a felony, more bad things will happen should you not show up in court. First, all the same things happen as with a misdemeanor (forfeiture) but an additional penalty occurs. A new and additional felony charge of failing to appear will be filed. This new felony is punishable by a State Prison sentence of up to three (3) years.

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An individual may be suffering with a mental condition such that everyone “knows” he’s mentally ill. In fact, people often unkindly say he’s “crazy”. However, he is out in society and usually functioning quite well. He may be on Social Security Disability or he may just be impaired yet still able to get along most of the time.

However, because of his illness he can become involved with the police. He may act out due to his illness in such a way that he becomes a danger to himself or others. Then the police are called. Once the police come to the scene they are faced with the choice of arresting the individual or taking him into custody pursuant to Health and Safety Code 5150. Under the 5150 Section an individual can be held for up to 72 hours involuntarily in order to assess his mental state. Many times the officers either don’t choose to take the individual 5150 because they don’t recognize the mental issue or they don’t want to for various other reasons.

More often than not the individual is arrested and charged with a violation of the Penal Code. If the conduct is not overly severe than the individual, who is now a criminal defendant, is charged with a misdemeanor and not a felony. The difficult issue for the criminal defense attorney is that if the defendant is declared incompetent or insane he will be either taken into custody for evaluation or kept in custody longer than he would serve if he simply plead guilty. In addition, with a misdemeanor the help the defendant needs is rarely going to be available in today’s era of diminishing services and resources.

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A Three (3) Strike Case is one where the Defendant has at least two (2) prior felony convictions which qualify as serious or violent felonies under Penal Code Sections 1192.7, 1192.8, and/or 677.5. Serious felonies refer to the conduct involved in the prior felony and are listed in Penal Code Section 1192.7 (c ). Violent felonies are enumerated in Penal Code Section 667.5 (c ).

When a Defendant has been convicted previously of at least two of these types of crimes he becomes eligible to be sentenced to a term in prison of 25 to life. A 25 to life term is not mandatory however. The judge has the discretion to “strike” (dismiss) one or more of the Defendant’s prior serious or violent felonies.

You might ask why does a judge “strike” or eliminate a prior serious or violent felony? What does the judge look for in deciding whether to essentially save a Defendant from spending the rest of his life in prison? The courts have decided numerous cases in this area and basically have set forth the rule that the court in striking the prior(s) must not act contrary to the spirit of the 3 Strikes Law.

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The California legislature has provided some relief for our combat veterans. In Orange County there is a Community Courts Program that provides, in part, for an alternative sentencing program for veterans of our Armed Forces who have served in combat. The goal of the Combat Veteran’s Court is not to punish the veterans who commit crimes but to assist them by providing a treatment plan coordinated by representatives of the mental health services offices and the Veteran’s Administration. The staff of the Combat Veteran’s Court is dedicated to restoring our injured combat veterans to their former healthy selves.

To be eligible for the Combat Veteran’s Court the veteran must have been in actual combat. The veteran must be suffering from Post Traumatic Stress Disorder (PTSD) or Traumatic Brain Injury (TBI) as a result of the combat they participated in during their service. Not everyone will qualify. If the combat veteran commits a crime, the crime must have been committed as a result of the PTSD or TBI. The crime can’t just be committed without any connection to the combat service.

The Combat Veteran’s Court has mental health professionals who evaluate the individual defendant’s mental status to determine if the veteran is suffering from a combat related disorder. Some crimes will disqualify the veteran as well. Violent felonies as defined in the Penal Code may disqualify the veteran from participating. Each case must be evaluated on its own merits. Don’t let the policy considerations of the court discourage you, the veteran, from seeking the Combat Veteran’s Court services.

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How can you represent “those” people? If I had a dollar for every time I’ve heard that at a party or in a conversation I’d be a rich man. The fact is, “those” people are just like you and me.

Everyone hates lawyers until they need one. I had to laugh when a former Attorney General of the United States said that,”… only the guilty need to invoke their Miranda rights.” He argued that Miranda rights were not needed by the citizens of the United States, that Miranda only protects the criminal element and shields the guilty.

I laughed even harder when he invoked his own Miranda right to remain silent when he suddenly became the focus of a criminal investigation. Suddenly, he found that the government can be overbearing and frightening in its exercise of power against the individual. He found comfort in the 5th Amendment to the United States Constitution when he realized the government was attacking HIM and placing enormous pressure on him.

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When you don’t like the judge you are in front of you are in trouble. There is a provision for changing your judicial officer but it must be used with caution.

When a defendant doesn’t want a particular judge, commissioner, or referee to hear any matter that involves a contested issue of fact or law, the defendant can challenge him or her under Code of Civil Procedure (CCP) 170.6. This is called a peremptory challenge. A defendant or his attorney states that the judge, commissioner, or referee is prejudiced against him. However, this statement is just that, a statement. A defendant and/or his counsel do not have to prove that the judicial officer is, in fact, prejudiced against him. If a defendant doesn’t like the way the judicial officer looks, an affidavit of prejudice can be filed and the case will be re-assigned to another judicial officer.

There are limits to challenging a judge. For example, if a judicial officer has heard and determined a contested fact relating to the merits of the case it is too late and you are stuck with that judicial officer. This only makes sense since all losing parties would like to challenge the judge who rules against them. With all rulings the court is going to make, at least one party to the law suit is going to be unhappy. Therefore once you have lost a ruling on an issue that goes to the merits of the case you can’t file a 170.6 affidavit. If it were otherwise there would be chaos in the court system with litigants filing one challenge after another against the sitting judicial officer.

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