Orange County Criminal Defense Lawyer Blog

Published on: January 25, 2017

How Does Bail Work in Orange County, CA?

by Law Offices of Rudolph E. Loewenstein

We’ve all heard of it, but unless you need it you probably have no idea exactly how it works or how to get it. The idea behind bail is to prevent a defendant from running away after he or she has been arrested. The theory is that if someone puts up a large amount of money, he is not likely to walk away from it. The other reason to set bail is, danger to the community. The more serious the crime the higher the bail.

Recently there has been a move to change the structure of bail as some feel it discriminates against poor people. Although the bail amount is determined by the severity of the crime not the financial status of the person who committed it, clearly someone who is poor will have a harder time affording it than someone who is wealthy.

The amount of the bail is pre-set according to a bail schedule, based on the seriousness of the crime. The theory is that if someone posts a million dollars of bail money, he is likely to show up in court to protect his money. The more serious the crime, the more incentive a defendant might have to flee from punishment, so the higher the bail.

Published on: January 13, 2017

Is Entering a vacant house a burglary in California?

by Law Offices of Rudolph E. Loewenstein

A man walked down the narrow street. He saw a house being remodeled. There was no furniture in the house but there was obviously work being done on it. A “porta potty” was outside the house for the workmen to use. Lots of tools were in the garage; portable belt sander, air compressor, and a nail gun along with other items that could easily be sold. Temptation got the better of him. The man walked into the vacant house through an open unlocked door, where there were no plates, dishes, furniture, or anything else that would look like the house was inhabited.

The man stole the tools with the intent to sell them. While he was in the house the workmen came back and chased him away. Unfortunately for him he was arrested nearby still in possession of the stolen property. He was charged with burglary of an inhabited house and the enhancement that someone was home when the burglary occurred.

How could an obviously uninhabited house qualify as an inhabited dwelling house and just because the workmen come back why is the burglary all of a sudden a violent felony?

Published on: December 20, 2016

Can a judge remove a juror just because the juror is the lone holdout?

by Law Offices of Rudolph E. Loewenstein

In a criminal case, a defendant is entitled to a unanimous verdict by all the jurors selected to hear his case. Many times if only one juror votes in a defendant’s favor it’s a win for the defense. The prosecutor may choose not to go to trial again and dismiss the case or will plea bargain the case in a way that benefits the defendant. Many times when a jury is hung with the count overwhelmingly in favor of one side or the other (usually against the defendant) the judge and the DA will try to identify the holdout juror, isolate that juror, and remove the juror in order to get a resolution of the case.

That’s what happened recently in the case of People v Armstrong, a 2016 from the 4th District Court of Appeal. The defendant was facing the death penalty and was in the penalty phase of the trial. In other words, he was guilty, but now the jury had to decide whether to vote for death or life in prison without parole. One juror was refusing to vote for death and became the “hold out” blocking a verdict. The judge removed the juror from the case in light of the frustration expressed by the other jurors. However, there wasn’t any showing that the juror wasn’t participating in deliberations. In fact, the juror was deliberating but just disagreed with the other jurors’ conclusions. Removing the juror was found to be error and caused the court to reverse the death sentence.

The role of the defense lawyer when a jury appears to reach an impasse is critical. A mistrial declared because a jury can’t reach a unanimous verdict is almost always a victory for the defendant. Any time the prosecution can’t get a conviction in trial the defendant wins. The defense attorney has to object at the right time and must seek a mistrial and a “do over” whenever possible. If the defense lawyer is “asleep at the wheel” and doesn’t raise the objection at all or doesn’t raise the right one the defendant suffers. Getting the right lawyer who stays on top of the case can make all the difference. It can even determine life and death. Whether it’s a death penalty case, like Mr. Armstrong’s, or one with a much lesser penalty every case needs the trial lawyer to stay strong, alert, and make the right moves.

Published on: September 26, 2016

Evading A Police Officer in Orange County, CA

by Law Offices of Rudolph E. Loewenstein

California Vehicle Code Section 2800.1 and 2800.2 make it illegal to flee or attempt to evade a police officer. The individual who flees from the police after the police turn on the overhead lights would seem to be in for trouble. What with helicopters, sophisticated radio communication, and everyone on social media instantly following the chase it would seem to be a hopeless proposition. In fact, fleeing from the police can result in a felony conviction punishable by up to 3 years in State Prison and a $10,000.00 fine. If someone is injured during the chase the punishment goes up to a possible 7 years in State Prison and again a $10,000.00 fine. If someone just simply refuses to stop and pull over it can be a misdemeanor.

In order to be guilty of a crime of felony evading a police officer the officer had to have an emergency light illuminated, a siren was sounding as necessary, the person is willfully attempting to evade and is driving in a willful or wanton disregard for the safety of persons or property. Ironically, all of the reckless and wanton driving can occur with lights flashing and siren wailing but if the prosecutor doesn’t do his or her job, a defendant can still be found not guilty. For one fortunate defendant in a recent case, a Mr. Byrd (People v Byrd, July 29, 2016, D.A.R. 7772), the strict requirements of proof worked to his advantage. The prosecutor in Mr. Byrd’s case failed to prove that the pursuing officers, not just one officer but both, were wearing distinctive uniforms as required by Vehicle Code Section 2800.1. That being said, Mr. Byrd’s conviction was overturned on appeal because the prosecutor did not prove the police were wearing their uniforms.

The apparent lesson to be learned is no matter how egregious the conduct, the prosecutor still has to prove all the elements of the crime and if they aren’t proven, there is hope for everyone charged with a crime. Of course, you need to have a defense attorney who understands this and can capitalize on the mistakes of the prosecutor.

Published on: July 23, 2015

Elder Abuse in Orange County, CA

by Law Offices of Rudolph E. Loewenstein

I receive lots of inquiries about elder abuse from people who have read my previous blogs and visited my website. Most of the contacts are from folks who believe that their elderly relatives have been either physically or financially abused by strangers or relatives. Since I don’t practice any kind of law other than criminal defense I’m not able to help. If someone is accused of abusing an elder than I have the experience to assist in his or her defense. So, in an effort to assist those not accused of elder abuse I would advise the following to prevent being accused and to prevent the abuse in the first place.

Financial abuse is usually associated with the alleged misuse of monies and property owned by the elderly. If you are in a caretaker position it is vitally important to keep a careful accounting of all monies spent out of the elder’s accounts or from cash kept by the elder. With a clear and concise accounting of any money spent on behalf of the elder, the caretaker is going to be able to defend against the unwarranted accusation of misuse by the family, friends, or government agency who investigates. Failure to keep good financial records can lead to an inability to defend oneself effectively against claims of abuse.

When it comes to physical abuse, the caretaker usually gets into trouble when the elder suffers some physical setback. When family, friends, or the government examine a case for physical abuse it’s always looking in the “rear view mirror”. The accusations of “you should have done this or recognized that earlier” come cascading down on the caretaker regardless of validity. The elder is often difficult to manage physically and emotionally for the caretaker. The elderly don’t like to be told what they can and can’t do and to be required to be washed or moved when they don’t want to be moved. Sometimes there are physical limitations that come on gradually that lead the caretaker to be overwhelmed. The caretaker might fear loss of employment if the family is required to intervene or the senior moved out of the caretaker’s zone of responsibility.

Published on: July 14, 2015

Crime In The Court in Orange County, CA

by Law Offices of Rudolph E. Loewenstein

I have had many clients come to me and say, either jokingly or for real, can’t I pay someone to “take care of this?” I always laughingly say, “This isn’t Chicago with Al Capone and gangsters running the courts”. Apparently, I was wrong. At least 600 cases involving traffic citations, DUI arrests, and other assorted cases being “fixed” are being investigated in the Orange County court system.

Many defendants in Orange County are being called into court to explain how their cases were either dismissed, fines suspended, charges reduced, or otherwise resolved all without anyone actually appearing on their matters. The answer appears to be that a clerk in a supervisorial position in the Orange County court entered into the record fraudulent transactions resolving the cases in return for lots of money.

From many defendants’ point of view the idea of paying someone to handle their case is in line with their cultural beliefs. Many in our community have recently immigrated from countries where paying money to government officials to resolve their matters without going to court is a way of life. Coming to the United States and continuing that practice is not something that is seen as criminal but is a normal manner of dealing with the government. A large segment of the community is not educated in the law and as long as they don’t have to go to court and face a judge, paying more than would be required to a third party is a small price to pay.

Published on: July 6, 2015

DUI with Injury. Felony or Misdemeanor?

by Law Offices of Rudolph E. Loewenstein

The DA has the right to charge a DUI where injury is claimed, with either a felony or a misdemeanor. What makes it a felony charge or a less severe misdemeanor is the extent of the injury suffered by the victim. Sometimes it’s obvious that a case is a felony. A clear example of this is a DUI driver who runs a red light and injures another driver, cutting off his leg in the collision. The law is clear that, if as a result of a DUI, there’s a collision that is the fault of the DUI driver and there is injury caused by the DUI driver then the DUI driver could e charged with a DUI With Injury (CVC 23153).

The issue of fault is really important because if, for example, a DUI driver is stopped at a stop sign and another driver rear ends him and is injured, the DUI driver can’t be charged with DUI With Injury because the fact he was DUI has nothing to do with the injury.

I recently tried a case with a DUI driver who had a .33 blood alcohol level, who rear ended another driver on the freeway. There was no doubt who was a fault. But, the driver who was hit claimed soft tissue injury. She treated at a chiropractor who she was referred to by her lawyer. The DA bought the “victim’s” story that she was injured and charged my client with a misdemeanor DUI With Injury. I wouldn’t accept the idea that she was guilty of a DUI With Injury and offered to plead her to a straight DUI. We want to trial. There was only one issue; did my client, who was obviously DUI, cause this “victim” injury?

Published on: February 24, 2015

Under Cover Officer Goes Under the Covers in Orange County, CA , Part 2 Or Did the Cop Get His Happy Ending?

by Law Offices of Rudolph E. Loewenstein

The jury selection process was dicey. Who among you is open to the idea that the police aren’t telling the truth and the Defendant is? A few hands went up. Most just stared at the Defendant wondering why she was going to trial. Who among you will judge the officers’ testimony just like any other witness? Well, now, this case just might be more interesting than the civil fraud case down the hall. Everybody seemed willing to keep an open mind if the choice is the prostitution trial or listening to a series of bad checks being reviewed.

So twelve citizens who couldn’t think of a good enough reason not to be there were sworn in as the jury. 9 women and 3 men were on the panel.

The detective testified he came into the spa, paid his money, and got an excellent massage until the time when the Defendant started lightly touching his privates. At that point he negotiated a “happy ending” for $30.00. The detective who was in the parking lot listening in on a concealed audio device, come on now, it was hidden in his pants hanging on a chair, heard the bust signal and came rushing in.

Published on: February 19, 2015

Undercover Officer Goes Under the Covers In Orange County, CA

by Law Offices of Rudolph E. Loewenstein

In an effort to stamp out crime, the undercover officer entered the business slowly, looking around for any sign of the criminal activity. He thoughtfully removed a $100 bill and gave it to the suspect. He was directed into the darkness of the back room. Slowly, ever so slowly, he removed every piece of clothing that he had on. Then, all in the line of duty, he laid down on the table, not knowing what to expect next. The suspect came in ready to give him his money’s worth.

The suspect firmly and then with ever increasing pressure massaged the officers not so supple body. After what seemed like an eternity, the officer, who of course now was completely and fully engaged, asked for what he had come for. Will you give me sex? He questioned the suspect again and again. She, not wanting to do anything other then make an honest living, was taken aback. Repeatedly she refused, offering only a legitimate massage.

The officer, feeling unsatisfied, gave the secret arrest signal anyway.

Published on: February 16, 2015

Who Says Crime Doesn’t Pay in Orange County?

by Law Offices of Rudolph E. Loewenstein

René “Boxer” Enriquez was a high level Mexican Mafia crime figure. His life was based on intimidation, murder, drug sales and evil. Boxer was a made member of the Mexican Mafia. What’s a made member you ask? It’s somebody who has killed for the Mexican Mafia and is such a trusted comrade that he proudly wears the black hand tattoo.

Sentenced to life in prison for murder and other crimes which he committed on behalf of the Mexican Mafia, he never expected to see the light of day. However, after numerous attempts on his life by other Mexican Mafia gang members, he left Pelican Bay in a helicopter escorted by the FBI and other law-enforcement agents.

What was his destination? It was a new life as a consultant on the government payroll earning thousands of dollars as an informant and an expert witness against his former brothers in the Mexican Mafia. All this while in protective custody housed in a federal prison for a California life sentence. He now writes books, lectures college students and even attends benefit lunches escorted by law-enforcement. In his spare time he testifies as an expert witness for the government in a variety of prosecutions.