Orange County Criminal Defense Lawyer Blog

Published on: November 11, 2011

Self Defense — Bringing A Gun To A Beer Bottle Fight?

Recently a man was convicted in Orange County California of murder. Essentially this Defendant was initially attacked by a group of gang members who chased him and threw beer bottles at him. In response the Defendant attacked the group who had initially assaulted him with a gun. He shot at the deceased and after wounding him, shot him again several times killing him. The issue for the jury became how far can one go in defending himself against an attack?

Self-defense is a right available to anyone in California. However, there are a few limitations. Usually, you can’t claim self-defense if you’re the one to start the fight. But, what if you don’t start the fight? In fact, what if you are simply attacked, but the person attacking you chose the wrong person to attack because it just so happens you have a gun. Can you shoot the attacker? The answer is probably not.

If attacked you don’t have to retreat. However, you have to use proportionate force to the assault being perpetrated on you. In other words you can only use the amount of force to defend yourself, that was used against you in the first place. If someone hits you with his fist you generally don’t have the right to use a gun in response. But, each case turns on its own facts. For example, if your attacker is much larger than you and you have a reasonable fear he is going to beat you to death or beat you until you are seriously injured you may very well be able to use deadly force to stop the attack.

Published on: November 4, 2011

Petty Theft in Orange County California

by Law Offices of Renee Garcia

Petty theft, or a violation of Penal Code Section 484-488, is when someone steals an item or items of value when that item(s) doesn’t have a large dollar value. It used to be that if what was stolen was worth less than $400.00 is was clearly a misdemeanor violation, commonly called petty theft. If the value was more than $400.00 it became a violation of Penal Code 487 and a possible felony.

Recently, perhaps as a sign of inflation or a recognition that everyday items just cost more, the law has changed to increase threshold of felony grand theft to $950.00. If whatever is stolen is worth less than $950.00 than the charge will be a misdemeanor petty theft.

A common occurrence is when someone steals from a store, such as Nordstrom’s Department Store, the value can quickly exceed the $950.00 grand theft value. The District Attorney has the choice to file this case as a felony or a misdemeanor. Even though it could be a felony, it doesn’t have to be. The District Attorney, or whoever is the prosecutor, has the discretion to file a felony or a misdemeanor.

Published on: October 13, 2011

Residential Burglary When the Resident is Home

by Law Offices of Renee Garcia

Residential burglary occurs when someone enters the residence of another with the intent to steal or commit a felony inside the home. The “normal” burglary is one where the burglar enters the home by forcing some kind of entry. Entry into the home through a window or forcing a door open are both entries which establish, almost by common sense, the intent to commit a theft or some kind of a felony inside the house. These are “serious” crimes and are punishable under the “Three Strikes Law” as such. But, what happens when someone is home when the burglary happens?

Recently, a case came up where entry was made through a bedroom window. Once inside the burglar was in the process of stealing silverware from the kitchen when he decided maybe there were more valuable items to be found in the bedroom. When the burglar went into the bedroom he was shocked to find that a woman was in bed sleeping. He immediately left the home and was so shocked he didn’t even take the stolen loot with him. Does the fact that he didn’t know anyone was home make a difference? Add the fact that he left immediately and didn’t take anything with him and maybe the burglary didn’t even occur. Well, unfortunately for the burglar, the fact that he didn’t know someone was home and that he didn’t get any stolen property doesn’t make any difference at all.

The crime of burglary is established as soon as the burglar enters the home with the intent to steal. Even if he just walked in the front door, if he entered with the intent to steal, it’s a burglary. The big problem for the burglar who enters when someone is home, is that by definition it is a “violent” crime under the “Three Strikes Law”. When it comes to sentencing, the burglar must, except in unusual circumstances, go to State Prison. In addition, if he does go to State Prison he must serve 85% of whatever sentence he receives.

Published on: October 3, 2011

Teaching Other Lawyers How To Defend A DUI in Orange County, CA

by Law Offices of Renee Garcia

Recently I had the opportunity to teach a class to other attorneys. All attorneys are required to attend and complete mandatory continuing education classes on various issues in the law. One of those classes offered was “How To Defend A First Time DUI”. Since I am a Certified Specialist in Criminal I was asked to teach this six hour class.

The questions I had to ask myself started with, what would I want to know if I had to defend someone who is charged with a DUI and I had no experience in defending against such a charge? That answer is, I would want to start at the beginning of the case and go through to the end of a trial so I would know what to tell the client to expect. I had to remember that the knowledge I take for granted isn’t necessarily shared by the lawyers in the class because they don’t have the experience I have.

The class focused on how to start the process of defending someone against a DUI. The request for a DMV hearing has to be made within ten days of the arrest. An appearance has to be made at the arraignment. A decision has to be made on issues such as, can I get a better deal in the arraignment court than I can if I enter a not guilty and discuss the case with the DA later? The lawyer has to do his or her homework to know the judge who is sitting in the arraignment court so as to know if settling the case earlier rather than later is better for the client. Is it a case that should go to trial? The lawyer has to know his court, the DA, and his facts. If he goes to trial and loses will his client be punished more harshly than if he had settled before trial? What’s a good settlement?

Published on: September 23, 2011

Jurors Say Police Lied in Not Guilty Verdict

by Law Offices of Renee Garcia

Recently the Los Angeles Times ran an article about several Los Angeles County Sheriffs’ deputies who had their testimony rejected by a jury. The case involved the deputies testifying that a defendant possessed a concealed firearm.

One deputy in particular testified that he saw the defendant in a side yard run and toss the pistol onto the roof of a detached garage. the trouble is, a video surfaced that was shot by a witness to the event. The video didn’t show the defendant run or toss the gun. It completely contradicted the sworn testimony of the deputy.

The jury returned a not guilty verdict and said that law enforcement fabricated their testimony. In other words, the sheriff deputies lied under oath. The jurors wondered why the District Attorney went along with the obviously false story put out by the deputies.

Published on: September 14, 2011

Excessive Force by Police Officers in Orange County CA

by Law Offices of Renee Garcia

I recently had a case in which my client was charged with evading the police, assault on a police officer, and resisting arrest. The police reports read like a one man crime wave. The client sped away at a high speed from the police, failing to yield to the lights and siren. Once he was stopped he came out aggressively and acted in a manner trying to intimidate the officers. He failed to follow orders and when he did so it was only after being told numerous times.

The police got him out of his car at gun point and ordered him to the sidewalk. Once there he failed to get to his knees as ordered. In fact, he was ordered to get down on his knees three times. He refused. The officer was elbowed when he approached and tried to handcuff the client.

The only problem was, almost all of the report wasn’t true.

Published on: September 2, 2011

Orange County, CA Murder Charges Blocked From 1997

by Law Offices of Renee Garcia

Before 1997 if someone was injured by a defendant during the commission of a crime and died more than three years and a day after the crime, he could not be convicted of murder. Recently, a case came before the Court of Appeal that tested this assumption.

Two defendants, Robert Duston Strong and David Michael Knick were charged with murder because they shot a sheriff’s deputy more than 30 years before and he recently died of complications from his injuries. Meanwhile, the defendants had served time in prison for their crimes and completed their sentences for the crimes they were charged with at the time.

The legal question became: could the defendants now be charged with murder because the sheriff’s deputy finally succumbed to his injuries many years after the original crime?

Published on: August 18, 2011

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

by Law Offices of Renee Garcia

“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 Renee Garcia

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 Renee Garcia

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.