Search of Student’s Backpack Illegal

This case represents the principle that the police cannot stop and hold someone without cause and later search them and use the evidence they find against them. Here, the Police stopped 15-year-old J.G. and his brother D.G., for a “consensual encounter.” J.G. was carrying a backpack. They were asked for identification and D.G. produced an ID card from another country. J.G. responded he had no identification. They responded “no” when asked if they possessed anything illegal. They allowed an officer to search them; nothing was found. Other officers arrived at the scene. The brothers were asked to sit on the curb. J.G. was asked if officers could search his backpack and he agreed. A gun was found and J.G. was arrested. A Welfare and Institutions Code section 602 petition was filed alleging possession of a concealed gun and other offenses. The minor’s motion to suppress evidence was denied. The court found the gun allegation true and the minor appealed. Held: Reversed. Under the Fourth Amendment, if a warrantless search is based on consent, it must be shown the consent was freely given and not a mere submission to authority. Here, what commenced as a consensual encounter ripened into a detention as the officer’s suspicions continued without apparent reason, the encounter became more intrusive, additional police arrived, J.G. was asked if he possessed anything illegal, police ran a records check on him, and he was searched. By the time police asked J.G. to sit on the curb, a reasonable person in J.G.’s circumstances would not have felt free to leave. The fact the police asked rather than directed J.G. to sit on the curb does not prevent a detention from occurring because, under the circumstances, J.G. felt his compliance was compelled. The gun was the fruit of an illegal detention.

The court discussed whether a “reasonable juvenile” standard should be applied to the determination of whether a reasonable person would have felt free to terminate the encounter. However, it did not resolve whether such a standard was applicable in the context of a detention because it found a reasonable person, regardless of age, would not have felt free to leave. (CCAP).

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Explaining The Charges In A DUI Case

Upon release from jail a person is given a citation or booking sheet showing charges the police imposed for a DUI arrest, what do those numbers mean? This article attempts to explain the most common charges associated with a DUI arrest in Torrance or anywhere else in the South Bay.

First, you must understand that the charges that a person is arrested or are not necessarily the same charges they will face in Court. the District Attorney or city prosecutor is responsible for filing formal charges in a criminal case and that is done by way of an official complaint. With this in mind, the most common vehicle code sections written up in a drunk driving arrest are VC 23152 a and 23152 b. These charges relate to the crime that was alleged and can be broken down to their individual component parts.

The VC23152a charge is the driving under the influence statute that prohibits driving while one is impaired by the use of alcohol. The elements of the offense are 1. driving and 2. At the time of driving the person was so impaired by alcohol they could no longer drive the vehicle with the caution characteristic of a sober person under similar circumstances.

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A Person Who Is Armed During A Crime Cannot Seek Reduction Under 3 Strikes Reform

Under California Penal Code section 1170.126, subdivision (e)(2), a defendant is ineligible for resentencing if he was armed during the commission of the crime. “A defendant is armed if the gun has a facilitative nexus with the underlying offense.” The question is “whether possessing a gun can constitute being armed with the gun during the possession.” The offense of felon in possession of a gun requires actual or constructive possession. If the gun is readily accessible for offensive or defensive use, the defendant is armed during the possession. An inmate may not later seek a reduction and modification of a sentence if they were armed during the crime.

Circumstances rendering a defendant ineligible for Strike Reform Act resentencing are not subject to a pleading and proof requirement. The prospective application of the Act requires the prosecution to plead and prove that the priors and the commitment offense are serious or violent, or come within a qualifying class of cases, in order to render a defendant eligible for a California Three Strikes sentence of 25 years to life. The retrospective relief accorded under section 1170.126 requires the trial court to determine whether the defendant is eligible for resentencing, but contains no express provision regarding pleading and proof of ineligibility in the proceedings underlying the commitment offense.

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California Supreme Court Reels In 3 Strikes Law

Every year in this state many people are sentenced to life in prison under California 3 strikes laws. As any criminal defense attorney will tell you, some of these sentences are unduly harsh and unjust given the nature and circumstances of the offense and the offender. Our own governor has declared that many people in prison in this state are there unnecessarily due to petty crimes. Just this week our high Court handed down a decision that curtails some of the draconian punishments that Judges impose. The following is a summary of the case courtesy of CCAP:

In People v. Vargas the defendant was convicted under CA three strikes law of a strike offense and the trial court sustained two prior strike allegations based on two 1999 convictions. Even though defendant’s two strike priors were based on the same act, committed at the same time, and against the same victim, the trial court denied her motion to dismiss one of the 1999 prior convictions. She was sentenced to a three-strike term of 25 years to life. The California Supreme Court granted review and opined “this is one of the extraordinary cases in which the nature and circumstances of defendant’s prior strike convictions demonstrate the trial court was required to dismiss one of them because failure to do so would be inconsistent with the spirit of the Three Strikes law.” Neither the electorate in its enactment of the Penal Code defining 3 strikes, nor the law makers could have intended that both such prior convictions would qualify as separate strikes under the Three Strikes law. The court disapproved a previous California criminal case to the extent it was inconsistent with the court’s decision. With this new decision attorneys will need to review both their present and past cases to determine whether any person sentenced in the past may qualify for relief under this new case. If you or someone you know was given a life sentence and they had 2 or more strikes that were the result of a single past case you should immediately find an experienced Torrance criminal defense lawyer to review the details and see if the person could be released upon successful Court action.

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Are Attorneys Fees Recoverable In A DUI Case?

A criminal DUI case in Torrance can result in the order of restitution if the offense involves a collision or traffic accident in which someone other than the defendant was injured. The Law allows for broad recovery in these types of cases. The Judge is compelled to order restitution as part of any sentence.

One of the interesting issues that arise is does a defendant have to pay the attorney fees of a victim injured in the accident? The answer is yes. Let’s assume one is accused of drunk driving stemming from a serious motor vehicle accident with injury. The victim goes out an retains a lawyer for the civil case and collects a large settlement from the accused’s insurance company, for the sake of this discussion, $300,000.00. Later, the defendant pleads guilty in criminal court and restitution is ordered. As part of that the victim can recover attorney’s fees because the law firm recovered the economic loss for the victim. The fact that the victim signed a release for settlement does not bar him or her from getting the lawyer’s fees back in the criminal case as part of mandatory restitution.

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How To Find The Right Criminal Defense Attorney

Torrance has more hundreds of lawyers licensed to practice law. If you have been arrested for a criminal charge, you should be able to find the right attorney if you know where to look. There are numerous resources available, the California State Bar offers consumers tips on finding a legal professional. Here is some direction from their website:

Personal Referral. Maybe you know a lawyer in a town where you used to live. Perhaps a lawyer who works for a corporation lives across the street. These lawyers may be able to refer you to other lawyers who have experience with your type of problem.

You could also ask your friends, co-workers and employers if they know any lawyers. Business owners and professionals such as bankers, ministers, doctors, social workers and teachers might be able to give you the name of a lawyer.

Certified lawyer referral services. You could call a local State Bar-certified lawyer referral service. This type of service refers potential clients to attorneys. After interviewing you, the referral service staff will match you with a lawyer who is experienced in the appropriate area of the law. (There is usually a small charge for the initial consultation with a lawyer.)

For an online list of certified lawyer referral services, visit the State Bar’s Web site at http://www.calbar.ca.gov/lrs. For a recorded message that can provide you with the phone numbers of certified services in your county, call 1-866-44-CA-LAW (1-866-442-2529). If you are out of state, you can call 415-538-2250 to hear the same recorded message. Or check the Yellow Pages of your telephone directory for a listing. (Keep in mind that the service’s State Bar certification number must appear in all advertising.)

State Bar-certified lawyer referral services must meet minimum standards established by the California Supreme Court. And because the State Bar enforces those standards, you could turn to the State Bar if you have a problem with the service. And if you were to file a complaint, the State Bar would look into it. There are other advantages as well. For example, a certified referral service:
Can refer you to a lawyer who has experience in the field of law that relates to your case.
Will refer you to attorneys who are insured. All lawyers who participate in certified lawyer referral services must carry malpractice insurance to protect their clients. This means that if your lawyer does something wrong, and you successfully sue for malpractice, the lawyer will have the ability to pay.
Will screen your call to determine whether you have a legal problem — or need some other type of assistance. And if you do need another type of assistance, the referral service can refer you to government agencies or other organizations that may be better suited to assist you. For example, you might have a problem that could be handled, without charge, by a rent control board or community mediation program.
Will only refer you to an attorney who has met certain standards of experience and is a State Bar member in good standing.
Will only refer you to an attorney who has agreed to do fee arbitration in the event of a fee dispute.
May be able to provide an attorney at a reduced rate. Lawyer referral services are required to make arrangements to serve people with limited means.
May be able to provide you with a bilingual attorney.
For more information on State Bar-certified lawyer referral services, see the State Bar’s consumer education pamphlet What Can a Lawyer Referral Service Do for Me?

Advertisements. You also could check the Yellow Pages, newspaper advertisements or the Internet in your search for an attorney.

Most lawyers choose not to advertise, other than to list their names, addresses and telephone numbers in the Yellow Pages. But lawyers are allowed to advertise in the Yellow Pages, in newspapers and magazines, on the radio and television, on billboards, on the Internet or any place else—as long as the ad does not contain false or misleading information. Lawyers may use ads to list their fields of law. They also may post their fees.

If you decide to call a lawyer featured in an advertisement, keep the ad for reference. If the ad was aired on the radio or television, make notes for your records.

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Appeals Court Upholds Criminal Threats Conviction

In everyday life people make threats but they are not taken seriously, in this case the courts found a criminal defendant did in fact violate Penal Code 422 when he threatened to shoot a person during a heated argument. Here are the facts of the case:

A juvenile court found that appellant made a criminal threat (Pen. Code, § 422) based on evidence that he threatened to kill a family friend, during an argument. On appeal, appellant challenged the sufficiency of the evidence to support the juvenile court’s finding. The appeals court upheld the case finding that PC Section 422 requires the threat “on its face and under the circumstances in which it is made,” to be “so unequivocal, unconditional, immediate, and specific as to convey to the person threatened[] a gravity of purpose and an immediate prospect of execution of the threat.” Appellant’s statements and actions satisfied this element. While upset, he threatened to shoot and kill The person in a loud voice using explicit language. He formed his hand into a gun, placed it into Victims face, and said, “pow, pow, pow” to emphasize his point. Victim testified that he believed appellant could actually shoot him and he called 911 to report the threat. There was no evidence that The victim perceived the statements as mere puffery or as a joke. The prosecution was not required to present evidence that appellant was armed with a gun when he made the threat. The evidence also showed that Victim was in sustained fear for his safety. He testified that he was “in fear,” “scared,” “upset,” and “shaking” immediately after the threat and the evidence demonstrated that his fear continued after he left the scene. Despite the fact that the victim testified that he was not scared of appellant generally, he feared for his safety when appellant lost his temper and the evidence showed that appellant was angry when he threatened The victim.(CCAP)

This case exemplifies how an individual can cross the line during an otherwise verbal exchange. In Torrance Court, people are convicted everyday of criminal offenses even though they say they never intended to hurt anyone, alcohol and other recreational drugs are typically involved in these cases.

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