Articles Tagged with California criminal attorney

 

A criminal record is a blemish on a person’s life. This blemish can keep a person from obtaining normal aspects of life such as a job or a lease on an apartment. There is one step a person can take to wipe the slate clean and get a fresh start on life. This step is called a record expungement.

What is a Record Expungement?

A record expungement is a legal process in which a lawyer submits a request to the court to remove a criminal record, under California Law. This process can give a person freedom and peace of mind because once the process is complete, the person does not have to reveal the criminal act that was once holding him or her back from certain opportunities. The person will be able to say, “No, I do not have a conviction on record.”

There are different types of expungements, with each type depending upon the criminal case and the factors involved. Keep in mind that record expungements are not available to all individuals. In order to get a record expungement, a person must qualify.

Criteria for Record Expungement

Expungement is an option for individuals convicted of certain misdemeanors or felonies. There are certain requirements a person must meet in order to get a record expungement. The criteria are as follows:

  • State convictions and state prison only
  • Probation term successful or conviction date is older than one year
  • Sentence requirements have been satisfied
  • No current charges pending
  • Not currently on probation
  • No crimes involving sex crimes against children and others according to California Penal Code 1203.4

All hope is not lost if you do not meet these requirements. Below, we list the options for those who are ineligible for record expungement.

What if I am Not Eligible for Expungement?

For those who do not meet the criteria for record expungement, the options are:

  • A pardon from the governor
  •  Clemency (Certificate of Rehabilitation or Commutation)

These options require an application and investigation of criminal history records, court and police records.

What a Record Expungement Does and Does Not do

A record expungement can help a person achieve success in life. A person can obtain gainful employment, get a professional license, and get a fresh start. However, an expungement does not make that person invincible.

While the expungement only removes the conviction from a person’s record, there are instances in which the expunged record may need to be disclosed. It is also important to note that the record expungement does not restore a person’s driving privileges. Continue reading

Many states have old, outdated laws in existence. Unfortunately, the laws make no sense and do not coincide with society in 2019. This is why early this September, Governor Newsom signed a bill that no longer makes it a misdemeanor for citizens to refuse to help the police. The law is an outdated one from the days of the Wild West and is known as the California Posse Comitatus Act of 1872.

What is the California Posse Comitatus Act of 1872?

Although you may have not heard of the law, the California Posse Comitatus Act of 1872 made it a crime, specifically a misdemeanor, for an able-bodied person over the age of 18 to refuse to assist the police in making arrests or taking people into custody. The elements of the law are:

  • Person must be 18 years of age or older
  • Person must be able-bodied – meaning no physical ailments or disabilities
  •  Police must request assistance on demand

The law dates back to the Wild West days when cowboys and outlaws, or fugitives and bandits wandered around the State of California.

The law allowed for citizens to receive a misdemeanor charge along with a fine of up to $1,000 for refusing or failing to help police make arrests or catch suspects, when the police request the help on demand.

How Was the Law Found?

According to an article in CNN, the interns of Senator Hertzberg found the old law. They were tasked with identifying old laws in the books. When they found this law was still in existence, Senator Hertzberg introduced State Senate Bill 192 to remove the law.

Had the Law Been Used Recently?

Unfortunately, yes.

Law enforcement made an attempt to use it to its benefit recently. According to a report by the Sacramento Bee, the law was referred to in 2014 when a sheriff’s office used posse comitatus as a defense in a lawsuit filed against them for an allegation by a man and woman saying they were deceived into responding to a 911 call by the sheriff’s office.

What Does ‘Posse Comitatus’ Mean?

Black’s Law Dictionary defines posse comitatus as the power or force of the county. The term is Latin, much like many legal terms. While the term also applies to a U.S. federal law, 18 U.S.C. Section 1385, the federal law reserves itself to the use of military personnel. Continue reading

For the police to make an arrest in San Diego, a warrant must accompany them. Discovering you have a warrant can be nerve wracking. You begin to wonder why a warrant was issued against you and what to do to make the warrant go away. Sometimes, but not often, judges issue warrants by mistake. When a judge signs off on a warrant, the warrant will come in the form of an arrest warrant or bench warrant.

What is an Arrest Warrant?

An arrest warrant is the legal document the judge will use to order the police to bring a person to jail under suspicion of a crime. If a police investigation, through testimony or evidence, reveals that someone committed a crime, the police will ask the judge to issue an arrest warrant that authorizes them to make the arrest.

What is a Bench Warrant?

Differing from the arrest warrant, a bench warrant stems directly from the judge for violating court rules. One of the most common reasons why a judge issues a bench warrant is the failure to appear. A bench warrant forces a person to appear before the court or judge, hence the name bench warrant — the judge sits at the bench and the warrant was issued from the bench.

Arrest and Bench Warrant Differences

Below are the major differences between an arrest and bench warrant:

  • The method in which the judge issues the warrants
  • Once the judge issues an arrest warrant, the police will search for the suspect
  • A bench warrant is usually not in connection with a serious crime
  • The warrant that can remain outstanding in the database is the bench warrant

How to Find Out if You Have a Warrant.

One way to find out if you have an arrest warrant in San Diego is to review the Online Warrant Database at San Diego County Sheriff’s Department website. Simply type in your last name, first name, middle name and year of birth to see if your name is in the database.

If your search reveals that you have a warrant, you should locate an experienced San Diego criminal defense attorney immediately. Many people try to handle the warrant on their own and face being placed in police custody. A knowledgeable San Diego criminal lawyer can get the warrant reversed and prevent law enforcement from placing you in police custody. Continue reading

San Diego has a new regulation that went into effect on July 1. The San Diego City Council put new regulations in place for scooters and bikes – sometimes referred to as dockless devices – to increase the safety of the public. Now, dockless bike and scooter riders must keep an eye on their speed in certain areas and stay informed of the parking locations where dockless bikes and scooters are accepted or face traffic tickets from law enforcement. 

The Dockless Scooter and Bike Regulations do the following:

  • Limit riders’ speed to 8 miles per hour on beach boardwalks
  • Limit riders’ seed to 3 miles per hour in high-traffic areas
  • Ban scooters from parking at hospitals, schools and certain parks
  • Prohibit scooters from riding on sidewalks in the City

Additionally, the regulations:

  • Require scooter companies to pay a permit fee of more than $5,000 every six months, including a $150 per device fee
  • Create designated scooter parking corrals (stenciled zones where riders can park bikes and scooters) so they do not block pathways on sidewalks
  • Require riders to stage scooters in groups of no more than four
  • Require riders to place 40 feet between each staging area

For your information, the City of San Diego offers a map showing the areas with speed and parking restrictions. To prevent people from violating the regulations, riders will receive notifications from the dockless bike and scooter companies letting them know when they are in no-ride zones.

Although some people are not in favor of the regulations, they can help to prevent accidents on sidewalks. Just this year, the first known scooter fatality in San Diego occurred — a tourist was riding a scooter on the sidewalk when he lost control of the vehicle and crashed, suffering fatal head injuries. The report states that the tourist was not wearing a helmet.

New Dockless Scooter Regulations Enforced by the San Diego Police Department

Yes, with the new regulations, you can get a ticket and face fines for violations. The San Diego Municipal Code and California Vehicle Code explain the laws pertaining to scooters and bicycles. These laws are enforceable by the San Diego Police Department. The new regulation will allow riders and dockless device users to report dangerous behaviors and consider mechanisms for citations.

According to a Fox 5 News article, San Diego Police Department say they will be diligent in enforcing more serious traffic violations such as riding two people to a scooter or riding while under the influence. Both violations come with traffic tickets which require riders to go to traffic court or traffic school. Continue reading

Without a doubt, California has the toughest gun laws in the United States. Earlier this week, Governor Jerry Brown signed several gun control bills into law, making the state’s gun laws even tougher. Effective January 1, 2019, what follows is a summary of the new legislation.

  • Age to buy shotgun or rifle increased to 21: Bill SB100 increased the age for buying a shotgun or rifle in California from 18 to 21. Exceptions are carved out for hunters, police officers, and members of the military.
  • Domestic violence offender lifetime gun ownership ban: Bill AB3129 permanently bans anyone convicted of certain domestic violence misdemeanors from owning a firearm for life.
  • Prior mental illness confinement lifetime gun ownership ban: Bill AB1968 permanently bans anyone who has been hospitalized more than once in a year for mental health issues and found to be dangerous to self or other from owning a firearm for life.
  • Mandatory training: Bill AB2103 requires anyone applying for a concealed gun permit to attend an eight-hour gun safety and handling training course or class. The applicant must pass a test that includes fining a gun at a target.
  • Police initiated restraining orders: Police seeking a gun violence restraining order will be permitted to apply for order verbally when there is no time to make written request.
  • Maintenance of lost firearm database: All California law enforcement agencies will be required to input information on lost or stolen guns into a state database within a week of the agency finding out the firearm was missing.
  • “Bump stock” ban: Bill SB1346 bans “bump stocks” which convert semiautomatic rifles to rapid fire machine guns.
  • Ban on possession of ammunition and gun magazines if guns taken away: Bill SB1200, permits judges to order that mentally unstable people whose guns are taken away also be barred from possessing ammunition and gun magazines.

Charged With a Gun Crime in California?

Illegally carrying a firearm in California is a serious offense. If you have been charged with a gun crime in California, you can face either a misdemeanor or felony charge along with heavy fines and years of imprisonment. If you face gun charges in California, consult a qualified San Diego Criminal Defense Attorney who can help mitigate penalties. Continue reading

In mid-June 2018, in a small town in Maryland, the police used a facial recognition program to identify and track down a robbery suspect. Investigators fed an Instagram photo of the suspect into the state’s vast facial recognition system and a match was made. Within minutes the Instagram photo was matched with the robbery suspect’s drivers’ license photo and the suspect’s drivers’ license popped up, providing law enforcement with the suspect’s name and address within minutes.

Increasingly, police departments across the country are using facial recognition programs to solve crimes. The prevalence of smartphone with video capabilities, the SMART connections in homes, and video cameras in private homes and public streets provide constant surveillance. Since these devices capture all activities, now more than ever, crime scenes are full of digital evidence of conversations and actions recorded.

The image of a suspect alone is not enough to identify him or her. In the past, police department released photo of suspect asking the public to provide tips to identify him or her on the news or on their websites. Now, with the image from the crime scene itself, the police can bypass the public completely, and through something as ubiquitous as an Instagram photo, identify the suspect by matching his photos with the state’s facial recognition program.

31 states, including California, use facial recognition programs to identify suspects by running photo of them against the state’s drivers’ license system photos. The technology is so advanced that not too far down the road will be a way to run the check right from a police officer’s body camera, real time, as a suspect is apprehended and taken into custody. Amazon’s Rekognition program, is one such facial recognition program used in California to assist collection of evidence in law enforcement investigations.

Although the use of these technologies raise all kinds of privacy concerns, the benefit to law enforcement, is difficult to discount if a crime is in progress or the identity of the suspect is unknown to investigators. Continue reading

This is the final installment of a six-part series on what to expect in California if you face felony criminal charges. Take a look at our past posts in the series and get to know the other steps of the felony arrest in California process.

The prior posts are:

The final step of the felony arrest process in California is sentencing. This is by far the most nerve-wracking time for people accused of crimes. By now, you have met the judge and prosecutors on your case, your attorney has kept you informed of the developments and challenges in your case, and you also have a basic understanding of maximum punishments and fines that can be assessed. What is missing, of course, is the judge’s decision.

Step 6: Sentencing

Whether you reach the sentencing phase by plea or after trial, every person charged with a felony in California will be sentenced or have punishment imposed. A sentencing hearing occurs after the trial and before the judge issues his or her sentencing decision. Some judges will provide the accused with a sentencing commitment, which is a preview of the judge’s sentencing decision; others wait until after the sentencing hearing to communicate their decision.

At the sentencing hearing, each side is afforded an opportunity to present and explain what type of sentence or sentence considerations the judge should consider when assessing punishment in the case. From a defense perspective, mitigating circumstances, prior positive community involvement, and lenient treatment are advocated. From the prosecution’s perspective, victim impact statements and harsher penalties are presented for the judge’s consideration.

After hearing both sides, the judge may sentence the criminal defendant to prison for a fixed time-period, a life sentence, or death in capital punishment cases. Other forms of permissible punishment include the assessment of fines, penalties and surcharges, and the assessment of conditions, like parole or mandatory alcohol and drug treatment. Especially in sexual assault matters, the accused person may be required to register in Sexual Offender Registries and have conditions imposed on where they may live after serving time.

Three Strikes Law

For individuals convicted of two or more violent crimes or serious felonies, a third felony conviction will automatically trigger the three strikes law. The three strikes law compels the judge to impose a life sentence, removing all other punishment options at the sentencing phase regardless of any mitigating circumstances.  

Death Penalty

A death sentence is the most severe punishment for someone charged with a felony. According to the Los Angeles Times, the California Supreme Court in August 2017 kept in place a measure passed by voters to speed up executions. Due to delays and legal challenges, the state of California has not executed a prisoner in a decade. Continue reading

In a unanimous 5-0 vote at the California Public Utilities Commission (PUC), state utility regulators voted to require annual background checks for drivers at Uber, Lyft, and other ride-share companies, but decided not to subject them to the fingerprinting required of taxi drivers. Instead, rideshare companies like Lyft and Uber will be required to use contractors accredited by national association of background screeners and report the results to the state commission. They must examine criminal records and disqualify drivers who have been convicted of violent felonies or sex crimes, or convicted of driving under the influence within the last seven years.

PUC members said that the changes would strengthen the previous rules, which barred drivers with certain types of criminal records and registered sex offenders but did not require periodic background checks. They rejected the arguments of taxi drivers that ride share companies needed to do the same thing because “the costs outweigh the benefits.” Because ride-share drivers are their own independent contractors, the cost of paying for their own fingerprinting would be an unfair economic burden born by the individual, and not the company.  The PUC claims that fingerprint records, which go through an FBI database, are not always accurate and could disproportionately affect minority drivers.

Advocates of fingerprinting, such as the taxi companies, say the new requirements have failed to spot drivers with criminal records.

Fingerprint Background Checks

The California Department of Justice (DOJ) is mandated to maintain the statewide criminal record repository for the State of California. Sheriffs, police, probation departments, district attorney offices, and courts have to submit arrest information. The DOJ uses all this information to compile “RAP sheets” which are criminal records of arrest and prosecution. RAP sheets are based upon fingerprint submissions.

While all criminal background check requests must be authorized by statute, some are mandatory while others are permissive. Background checks have become the norm, for employers, rental agencies, etc.

In California, fingerprinting must be performed by a certified fingerprint roller or qualified law enforcement personnel. The live scan operator checks the applicant’s identification, inputs the applicant’s personal descriptor information, captures the applicant’s fingerprints electronically, and transmits the data to the DOJ. Once it is received, the DOJ then checks the fingerprint against the fingerprint database, which holds the fingerprints of criminal suspects, government employees, military personnel, and those with security clearances. If your fingerprints do not come up associated with a RAP sheet, then you are considered to have passed the fingerprint criminal background check. Continue reading

Like the Bill Cosby case that took the media by storm last year, Hollywood mogul Harvey Weinstein has also been accused by multiple women of rape and sexual misconduct. However, in the case of Weinstein, more than 75 women have publicly accused him of inappropriate behavior, including sexual harassment and rape. Many of Weinstein’s accusers are famous actresses such as Rose McGowan and Asia Argento, who have all said publicly that Weinstein forced them into unwanted sex. Weinstein has since then denied all allegations against him.

Currently, Police departments in London, New York, Los Angeles, and Beverly Hills, California, have said that they are investigating potential criminal charges in at least 10 different cases, some involving women who have not spoken publicly. So far, only the NYPD has stated that it has enough evidence to arrest Weinstein and press charges. This is because the agency has a police report filed by actress Paz de la Huerta in October to report that Weinstein raped her twice in 2010. Additionally, at the time of the alleged assaults, de la Huerta had told her her therapist, SueAnne Piliero, who recently supplied a letter to the actress about her recollections from those sessions. Lastly, de la Huerta had told a journalist named Alexis Faith, who recorded the conversation but never published the story. She too provided the tape. Because de la Huerta alleges a forceful rape which happened after June 2006, within New York’s statute of limitations for rape in the first degree, her case is among the most compelling for prosecutors.

What is next? Currently, a senior sex crimes prosecutor has been assigned to the case in New York. Investigators are likely to present de la Huerta’s allegations to grand jury before making an arrest.  The grand jury would then decide whether to indict Weinstein based on the standard of “reasonable cause” that he committed a crime. If an indictment is issued, prosecutors would then ask a judge to issue an arrest warrant.

Due to the allegations against him, Weinstein has been fired from the film production company he co-founded. He has hired to top defense lawyers to represent him in New York and Los Angeles.

California Statute of Limitations

Like New York, which eliminated its statute of limitations on rape charges back in 2006, California also amended its criminal code last year to eliminate the statute of limitations of rape and sexual assault charges. See S.B. 813.  Prior to that, the state had a 10-year window. Continue reading

According to news outlet ABC 10, a Carlsbad pastor named Matthew Tague, 43, has been arrested on 16 counts of child molestation. Deputies with the San Diego Sheriff’s child abuse unit has charged him with lewd and lascivious acts with a minor under the age of 14. The charges against Tague, a pastor at North Coast Calvary Chapel in Carlsbad, are not related to his duties as a pastor. Tague is currently being held in Vista Detention Facility on $1.9 million bail. He was due in court on June 2.

Once he appeared in court, he pleaded “not guilty” to charges of repeatedly molesting a female member of his congregation for two years. He also pleaded “not guilty” to charges of 14 forcible sex acts against a child. Additionally, Deputy District Attorney Patricia Lavermicocca said Tague is accused of violating a family member when s/he was 12 and 13 years old. It is reported that Tague’s wife caught him abusing the victim, and turned him in.

Child Molestation Under California Law

Not only are sex crimes taken seriously in California, but sex crimes against children are viewed upon by society as even worse. Just being accused of a sexual offense against a child can ruin your life and reputation.

There are several sections in the California Penal Code that address sex crimes against children.

Lewd or Lascivious Acts with a Minor (Penal Code § 288)

A lewd or lascivious act against a minor is defined as touching any part of the body (bare or covered) of a minor or forcing him or her to touch themselves for the purposes of sexually arousing or gratifying yourself or the victim. Subsection (a) of the statute states that if the victim was under 14, it is a felony punishable by up to eight years imprisonment and a $10,000 fine.

Subsection (b) of the statute addresses lewd acts against a minor under the age of 18, by fear of duress or violence. A conviction under this subsection is also a felony punishable by 10 yrs imprisonment and a $10,000 fine.

Subsection (c) specifies that if the victim was under 14 or 15 years old, and you are at least 10 years older than the victim, you will also face a felony punishable by up to three years in state prison.

Soliciting a Minor for Lewd Purposes (Penal Code § 288.4)

Solicitation of any child under the age of 18 can either be a misdemeanor or felony, punishable by up one to three years imprisonment and a $1,000 to $10,000 fine. Continue reading