Orange County Criminal Defense Lawyer Blog

Published on: August 9, 2012

Why Thorough Investigation Can Lead to a Dismissal in Orange County, CA

by Law Offices of Rudolph E. Loewenstein

My client was represented by another lawyer for 18 months. Not satisfied with the fact that his lawyer wanted him to plead guilty to stabbing two people at a party (violations of Penal Code Section 245(a)) he hired me. The Defendant told me he had been to a party where one of his friends had brought a NOS tank. NOS is nitrous oxide and is used by many young people to get high. The owner of the house where the party was being held didn’t want the NOS at the party and told the Defendant and his friends to leave. Before the Defendant could leave he was confronted by numerous party goers who decided they would attack him and teach him a lesson.

The Defendant was confronted by multiple individuals who were threatening him. He found a knife near the NOS tank and was waving it in front of him in order to ward off the attackers. He knew he had not stabbed anyone and certainly hadn’t stabbed anyone intentionally. A friendly stranger stepped in and grabbed the Defendant’s hand and led him out of the party to a place of safety across the street. During the trip across the street to safety the stranger noticed his hand had been cut by the knife in the Defendant’s hand. The Defendant apologized for cutting him and left the area. Before he left, he threw the knife in the bushes. After leaving he decided throwing the knife away wasn’t a good idea and he went back to retrieve it. Of course, when he did that he was arrested for a stabbing that had occurred at the party and for cutting the stranger’s hand.

At the police station he was questioned by the police. The reports stated that the Defendant had confessed to stabbing the two victims at the party. My client denied ever having said any such thing. Fortunately, the conversation at the station was recorded. The previous lawyer had not listened to the tape recording so he didn’t know when the police officer testified at the Preliminary Hearing as to what was in his reports, that the report itself was either a lie or just inaccurate. Either way, when I listened to the audio it was clear the client was telling the truth, he never confessed to stabbing anyone and , in fact, had denied it.

Published on: June 21, 2012

EXPUNGEMENTS vs. DISMISSALS AFTER SUCCESSFUL COMPLETION OF PROBATION IN ORANGE COUNTY, CALIFORNIA

by Law Offices of Rudolph E. Loewenstein

In California a Defendant is entitled to a dismissal following successful completion of probation or earlier if discharged from probation before the end of the probationary period. (Penal Code Section 1203.4) However, a dismissal under the provisions of PC 1203.4 does not expunge the conviction from the record. Expungement commonly means: destroy, wipe out, strike from the record or erase the conviction completely from any record. In California there isn’t any expungement available to a Defendant. Once a Defendant has been convicted the conviction is not going to be erased from the public record.

The available relief to a Defendant in a criminal case following a conviction is afforded under PC1203.4. It WILL do the following:

1: Set aside the verdict or plea;

Published on: June 18, 2012

In California How Many Times Can You Be Prosecuted For The Same Offense?

by Law Offices of Rudolph E. Loewenstein

Almost everyone has heard of Double Jeopardy. The Constitution prevents you being tried twice for the same offense. There even was at least one movie called Double Jeopardy. However, what happens when you are arrested for one offense, plead guilty, and then the police discover evidence of a second offense and want to try you for that later discovered crime?

The recent case of People v. Barriga gives us the answer. Mr. Barriga was a passenger in a car that had been carjacked (a violation of Penal Code Section 215). One who is convicted of violating Penal Code Section 215 can be sent to State Prison for up to nine years. It is also a Strike violation under California’s Three Strike Law. Now Mr. Barriga didn’t want to get arrested so he resisted arrest, violating Penal Code Section 148(a). A violation of Penal Code Section 148(a) is a misdemeanor and is only punishable by up to one year in County Jail. Since Mr. Barriga was a passenger in the stolen car, he was only charged with violating Penal Code Section 148(a). He immediately pleaded guilty to the resisting arrest. The difference for Mr. Barriga in the possible sentence between carjacking and resisting arrest was huge.

Following Mr. Barriga’s guilty plea the police discovered cell phone calls that incriminated him in the carjacking itself. Of course, the prosecutors didn’t want to let Mr. Barriga off so easily so they now charged him with carjacking even though he had pleaded guilty to resisting arrest. It wasn’t double jeopardy because carjacking is a different crime than resisting arrest and he wasn’t being charged twice for the same thing. Can the DA get away with this?

Published on: June 4, 2012

Orange County, CA Assault and Battery

by Law Offices of Rudolph E. Loewenstein

Assault is defined in Penal Code Section 240 as “…an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” Assault often is charged at the same time as a Battery, which is defined in Penal Code Section 242. Penal Code Section 242 states, “A battery is any willful and unlawful use of force or violence upon the person of another.”

Assault is commonly referred to as battery that didn’t get completed. If someone tries to batter another person but isn’t successful it’s an assault. The District Attorney charges both crimes in an effort to convict the defendant of at least one crime. For example, if someone swings his fist at another person but misses, it’s an assault but not a battery because no touching occurred.

Fights that occur often result in charges of assault and battery. There might be lots of swings and misses and a few punches connect resulting in the “unlawful use of force or violence upon another”. The violence has to be “unlawful”. If an assault or battery is justified then it’s not unlawful. Righteous use of self-defense or defense of another is a defense to assault and battery. That defense makes the battery lawful and within the acceptable limits of violence allowed by the law.

Published on: May 29, 2012

Prescription Drug Fraud in Orange County, CA

by Law Offices of Rudolph E. Loewenstein

Recently, many law abiding people have been faced with loss of drug insurance coverage or loss of medical benefits altogether. When this happens and they still need prescription medications for severe pain it can lead to the temptation of forging prescriptions for medications. Prescription drug fraud also often occurs when low income individuals with severe pain can’t get prescriptions for medications through valid channels. Additionally, when someone has had a long term pain issue their prescribing doctor may refuse to refill prescriptions for pain medications.

Going into a pharmacy with a forged prescription can lead to multiple felony charges being filed by the District Attorney. Just going into the pharmacy with the intent to use the forged prescription is a violation of Penal Code Section 459-460 (b) (burglary). Then presenting the forged prescription is a violation of Penal Code Section 470(a) (forgery) and more specifically, a violation of Health and Safety Code Section 11368 (forging or obtaining a forged prescription). Three felonies occurred all by the simple act of trying to obtain pain medication under a false prescription. Finally, if one is successful in obtaining the drugs, a charge of illegal possession of a controlled substance can be filed, violation of Health and Safety Code Section `11350(a).

Just because the District Attorney files these multiple felonies doesn’t mean a conviction must be the result. Various diversion programs can be used to obtain dismissal of these charges. If a “real” need for the prescription drugs can be shown many times the District Attorney will recognize the just result for the case is treatment rather than conviction and incarceration. It is vital to demonstrate a medical addiction or some medical condition that requires the drug the client was so desperate to obtain.

Published on: May 9, 2012

Califronia Vehicle Code Section 23152, Driving Under the Influence

by Law Offices of Rudolph E. Loewenstein

What exactly are the elements of a violation of California Vehicle Code Section 23152?

What does it take to prove you are driving in violation of CVC 23152? First of all, a violation of CVC 23152, or commonly called “drunk driving”, can occur in one of two ways. One can violate CVC 23152(a) by being under the influence of alcohol and/or drugs or by having a blood alcohol level of .08 or more at the time of driving.

To prove that a driver is under the influence of alcohol and/or drugs it must be shown that his or her physical or mental abilities are so impaired that he or she cannot drive with the “caution characteristic of a sober person of ordinary prudence under the same or similar circumstances.” That is the standard. The method of proof can consist of how the driver is actually driving the vehicle, the observations of the officer once the vehicle is stopped, the performance on the “field sobriety tests”, and the breath test in the field. Some or all of these factors may be present in every case. Also, the chemical test that is obtained after the arrest can be used to infer that, if it’s more than a .08, the driver is under the influence.

Published on: April 6, 2012

Self Defense In California Means “Stand Your Ground”

by Law Offices of Rudolph E. Loewenstein

There has been a lot of publicity over the case in Florida where the unarmed teenager, Trayvon Martin, was killed during a confrontation with George Zimmerman, the neighborhood watch member. Florida’s “Stand Your Ground” law has been used as an argument to justify the shooting of this young man. What does California’s self-defense law say about when and how the shooting of an unarmed person can be justified?

Every self-defense case turns on the facts of the confrontation, the history of the individuals involved, the relative size of the combatants, the knowledge, if any, of the history of violence between the participants, and a host of other factors. To hear the commentators pontificate on whether or not the shooting was justified without full knowledge of the facts irritates this criminal defense attorney. No one thinks it acceptable to shoot an unarmed man without any justification at all. However, the commentators in this case seem to give their opinions on the case without any reference to the actual facts but, instead, base their opinions on their political or racial biases. Facts drive self-defense cases from both the prosecution and the defense. The law is usually clear. It’s the facts that are confusing and often contradictory (depending on the source) and applying those facts to the law is the difficult part. If you already have a bias or your mind is made up based on your personal belief then why examine the facts or the law?

The law of self-defense in California is clear. An aggressor in the initial fight cannot later claim self-defense. How do you define who the aggressor is? Is it the one who threw the first punch? Is it the guy who got out of his car and follows someone who he thinks, rightly or wrongly, is suspicious? Many times the role of aggressor is clear. He punched me without any justification. Then I fought back. Then he beat me to a pulp. Well, of course, I am still the victim even though I fought back. The aggressor cannot claim self-defense just because the person he attacked fought back. But, the difficulty in the tough case is what actions led to the actual physical fight? Were threats made, postures taken, which would lead a reasonable person to believe that if he didn’t hit first he would be severely injured or killed if he didn’t act quickly? If so, even a first strike can be justified.

Published on: March 29, 2012

Federal Prosecutors Withhold Exculpatory Evidence

by Law Offices of Rudolph E. Loewenstein

Alaska Senator Ted Stevens was prosecuted for corruption in office by the United States Attorney’s Office. He allegedly failed to disclose gifts made to him. He was found guilty following a jury trial. The jury based their decision on what was provided to Stevens’ defense team. However, what Stevens and the jury didn’t know was that important statements of witnesses and testimony which was exculpatory (tending to show Stevens’ wasn’t guilty) was not given to the defense.

The lawyers from the US Attorney’s Office knew that their most important witness was having sex with underage girls and part of this witness’ testimony against Stevens was most probably fabricated. Not only did the prosecutors know about these issues with their key witness, which could be used to impeach his credibility, but they covered it up. Not only didn’t they turn the information over to the defense, they hid it from Stevens’ defense team. Apparently, the prosecutors’ desire to obtain a conviction overcame their sense of right and wrong, justice, and ethical duties.

Why is this important? First of all, the defendant’s right to a fair trial hinges on the prosecutor being fair and open with all evidence which could be termed exculpatory. Anything that reflects on the credibility of key witnesses must be turned over to the defense. Failure to do so cheats the system, the defendant in question, and undermines everyone’s faith in the criminal justice system.

Published on: March 16, 2012

Orange County, CA Probation Violations

by Law Offices of Rudolph E. Loewenstein

What does it mean when someone is put on probation? Many times you’ll hear a defendant is put on probation after either a guilty plea or as part of a sentence following a guilty verdict. First of all, probation is a conditional sentence. When someone is judged to be guilty as a result of a plea or guilty verdict the judge can sentence the defendant to the maximum penalty under the law. If that happens there isn’t any more punishment to be had and there isn’t any probation. But, a conditional sentence means that the judge is giving a sentence less than the maximum and in consideration of that the defendant is told he is on probation to the court, usually on certain conditions.

The conditions of probation can be whatever the judge orders someone to do as a result of the conviction. For example, the judge can order the defendant to serve 30 days of community service as a condition of probation. If the defendant doesn’t do the community service the judge can find a violation of probation and impose some or all of the rest of the maximum sentence. It works something like reward and punishment. If you do what you are ordered to do the reward is no more jail time or fines or whatever else the judge might do if you don’t follow through. Punishment comes into play when the defendant fails to live up to his promise to the judge that he would abide by the conditions of his probation. That punishment can be up to whatever the maximum is for whatever crime the defendant was convicted of when he plead or was found guilty.

When a defendant is sentenced to probation, either formal (with a probation officer ) or informal (without) the defendant is asked: “Do you accept the conditions of probation as I have stated them?” If the defendant says yes, he has a contract with the court to accomplish whatever it is the judge has set out for him to do.

Published on: February 21, 2012

Orange County Criminal Defense Lawyer Attends Continuing Legal Education

by Law Offices of Rudolph E. Loewenstein

Lawyers must continue their formal legal training no matter how long they have been practicing law. The California State Bar Association requires lawyers to attend Continuing Legal Education (CLE) classes and monitors or audits lawyers’ records to ensure they have attended the necessary number of hours. This is true even for lawyers, like me, who teach other lawyers about how to defend driving under the influence cases.

CLE is important for two reasons. First, lawyers have to keep up on changes in the law and there isn’t any better way than to attend classes taught by experts in their field. Second, CLE is a great way to continue to be energized about the practice of law. It’s exciting to attend a conference and talk to other lawyers about how they are defending their cases. Attending the conference and listening to other defense lawyers is one thing but discussing your particularly difficult cases with other defense attorneys in a consultation is really exciting. It’s like having a law firm of the best of the best working together to put a winning strategy in action.

I recently attended the Capital Case Defense Seminar. Nearly 1000 other criminal defense lawyers were brought together to learn, discuss, and work towards eliminating the death penalty in California. During the conference Barry Scheck gave a very informative talk on Forensic Evidence. Of course, Barry Scheck has worked tirelessly through The Innocence Project to free many wrongfully convicted innocent defendants. Finding out how he helped to free an innocent man after 26 years of imprisonment in Texas was inspiring. Listening to him speak makes me want to be a better lawyer.