Fighting for your freedom
Certified Criminal Law Specialist
Former Deputy District Attorney
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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?

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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.

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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”.

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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.

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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.

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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.

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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.

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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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Newport Beach, CA 92660
Phone: 714.544.9844
Fax: 714.544.4337

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