The Importance Of a Character Witnesses In A Criminal Case

Most people never have the misfortune of being arrested and charged with a crime but for those that do there is a big misperception about how the system actually works. When the District Attorney sees a case he or she views the person from the standpoint that they are like every other criminal they have seen and fail to see the individual as an average person, their neighbor, co-worker, etc. As a defense lawyer it is my job to “humanize” my client to allow the prosecutor to see him or her as a person deserving of a break or second chance. Therefore, in nearly every case it is important for our clients to provide us with a list of character references. This is vital to your case. We need to be able to learn more about you from those that know you very well. In this way we can prepare for court and can best present you as a “good person” who deserves the courts utmost consideration in evaluating your credibility and whether you are entitled to some leniency or a dismissal of the case, when appropriate. A list of between 3 and 20 persons who know you and can provide us information about you that is positive in nature. We need the names, addresses and home, work and cell phone numbers of these persons (when available). We need to know what they do for a living and how long they have known you.

In many cases it is helpful for the character witness to provide a written account of your good character via a “character witness letter”. In the letter we need to know how well they know you and in what context. The letter should include as many accounts of “good deeds” as is possible. Also, the letter should speak directly to the traits at issue in the case. For example, if the case is domestic violence the letter should contain a testament to you as a peaceful non-violent person. Almost every case involves honesty so that should also be referenced whenever possible.

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When Will California Legalise Marijuana For Recreational Use?

Visit surrounding states such as Colorado and you can walk into a pot shop and buy up to 1 ounce of marijuana for recreational use, no doctor’s recommendation required. For those who remember pot from the 70’s, today’s marijuana is 10 times stronger. Many main stream business people are changing jobs to get into the pot business. Cutting edge technology produce, cultivate and package marijuana for sale in states such as Colorado. It’s big business and is generating millions of dollars of tex dollars for the government.

At the federal level, law enforcement is watching carefully. Many states are regulating the production with a watchful eye. Some states track the buds from the seedling to the bag. Many police agencies believe that legal states are allowing growers to transport pot to other non-legal states, and those states are suing to stop the practice.

Legal states are trying to balance the fact that it may impact border states. They know they are under the microscope and know that some are overdosing on edibles and the amount of THC and how they are packaged and sold. Many law-makers are encouraged by the “green experiment” in their communities.

The sales of marijuana is creating jobs in security, real estate, manufacturing and many others. The critics are asking, at what price? The crime rates are in question and the business is cash based which will inevitably attract the crime underground and gangs, say the pundits.

What do you think, let us know your comments.

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How To Prepare For A Court Appearance

Preparing for an appearance in Court can be very stressful. Knowing what to expect will help relieve some of your anxiety and help you to relax and ease your mind. First, you must understand that most Court appearances are in a Courtroom where they conduct a general calendar, this means that there will likely be dozens of other similar cases set to be heard on the same day and therefore the Courtroom will likely be filled with other people waiting for their cases to be heard as well.

What time should I be there? Most criminal case courtrooms open their doors at 8:30 am but this does not necessarily mean that your case will be called right at 8:30. In fact, when you have a private attorney the clerks will not even pull the file until the lawyer arrives, at which time both sides (The Prosecutor and Defense Counsel) will confer and agree that the matter is “ready” to be called at which time the file will be put up on the bench for the Judge to call the matter. Therefore, should you arrive early, check in with the bailiff then take a seat and wait for your attorney to arrive.

What should I wear? Treat the Court appearance as you would a job interview. Wear clothes that show respect for the proceedings, business casual or suit and tie are preferred, however, you should not go out and buy new clothes for the appearance. Nice, clean, pressed slacks and a collared shirt is acceptable. Avoid, wearing short pants, flip-flops, T-shirts with offensive logos, etc. Nothing flashy.

What should I bring to the Court? Make sure you have any Court-Ordered proof of attendance documents such as AA meetings, classes or counseling that you were ordered to attend prior to the Court date. Also, bring any character reference letters, social history or background information the attorney may have asked you to prepare.

Who should I bring with me? Do not bring any children or young kids who will be disruptive to the proceedings, unless you are specifically told otherwise. Your spouse may accompany you as well as any character witnesses or support persons your lawyer has approved in advance.

When the case is called you will walk with the attorney towards the Judge’s bench and stand unless you are told to sit. Do not say anything unless you are specifically addressed by the Judge or myself. The lawyer will do the talking so you can relax. Do not make any facial gestures or react in any way to any statements made by the prosecutor. Remain dignified at all times.

You should be aware that most Courts have strict security procedures which include metal detectors at the entrance to the building. As such, you should avoid carrying any pocket knives, nail files, scissors and the like. Parking in most Courts is in a private lot which charges a fee so be sure to bring cash for parking, usually between $10-20 dollars. Some Courts such as Torrance has free parking but allow an extra 5-10 minutes to walk from the lot to the Courthouse, be mindful of any limits on the time allowed to park, some streets only allow 2 hour parking so be sure to plan accordingly. Most Court sessions last all morning, between 8-12 noon.

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California Court Holds Taking DNA Unconstitutional

California criminal statutes have long allowed for the collection of DNA from those convicted of felony offenses, taking DNA from suspects accused of felony crimes is a fairly recent procedure, this week a CA appeals court stepped in to put an end to this practice? The facts of the case is as follows:

Appellant was arrested after setting a police car on fire. While confined in county jail and prior to any appearance before a judge, he refused to provide a DNA sample as required by the California DNA Act. A jury convicted him of felony offenses related to the arson and refusal or failure to provide a DNA specimen. An appeal followed. In a previous opinion, the Court of Appeal held that the seizure of a person’s DNA shortly after arrest violates the Fourth Amendment right to be free from unreasonable search and seizures and reversed appellant’s conviction for failure to provide a DNA specimen. The California Supreme Court granted review and remanded the case with directions to vacate the prior decision and reconsider the matter in light of Maryland v. King (2013) __ U.S. __ [133 S.Ct. 1958] [rejecting Fourth Amendment challenge to a Maryland statute requiring collection of DNA from arrestees charged with “serious crimes”].

Held: Conviction reversed. Like the Fourth Amendment, article I, section 13 of the California Constitution protects people against unreasonable searches and seizures. However, it provides greater protection of an arrestee’s privacy interests than the Fourth Amendment. The court here found that the arrestee provisions of the DNA Act are invalid under the California Constitution because the governmental interest in DNA testing at this early stage does not outweigh arrestees’ reasonable expectation of privacy in their DNA information. The Act allows DNA to be collected from arrestees who will never be charged or convicted of any crime and places the burden on the arrestee to pursue an onerous expungement process that is unreviewable. The DNA Act also intrudes upon the privacy interests of individuals who have not had contact with law enforcement because it does not prohibit familial searching, which uses an individual’s DNA profile and a profile in the DNA database to implicate a close biological relative as a possible suspect. (Courtesy CCAP)

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When Does A Police Sting Operation Become Illegal?

Many Torrance police operations use decoys for prostitution stings and sting operations for drug crimes but when does the conduct cross the line. Well, according to the District Attorney’s own rules, a sting or decoy where a ruse is used to lure people in and commit crimes can be illegal in some cases.

Entrapment” is neither an immunity from arrest nor a bar to prosecution; instead it is a defense that may be asserted by a defendant at trial, and which he has the burden of proving to the jury by a preponderance of the evidence. People v. Sherow (2011) 196 Cal.App.4th 1296, 1307. In California courts (the federal doctrine is different), a defendant can escape conviction for a crime he in fact committed by proving that he did so in response to law enforcement conduct that was so overbearing it was “likely to induce a normally law-abiding person to commit the crime.” People v. Barraza (1979) 23 Cal.3d 675, 690. Defendant need not admit the crime to assert an entrapment defense, Id., at 692; and his criminal predisposition is irrelevant. Id., at 688-89. Entrapment must be raised at trial, not for the first time on appeal. People v. Pijal (1973) 33 Cal.App.3d 682, 692. “The law does not recognize a defense of vicarious entrapment.” People v. Vo (1989) 213 Cal.App.3d 689, 695 (Officer pressures agent-A to get B to commit a crime, but A uses no pressure against B: no entrapment). However, if the agent does use overbearing techniques to induce a third party to commit a crime, the defense of entrapment lies. People v. McIntyre (1979) 23 Cal.3d 742, 747-748 (Officer does not pressure agent-A, but A pressures B to commit the crime: B is entrapped). In California, “We reject the doctrine of sentencing entrapment.” People v. Smith (2003) 31 Cal.4th 1207, 1216 (OK for undercover agent to supply enough drugs to invoke enhancement).

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What Constitutes Evading A Police Officer?

Evading a police officer is a crime in Torrance and in any other city in California. What proof must be shown to convict someone of evading in California?

California statutory and case law have established black and white requirements to convict an individual of evading a peace officer.

California Vehicle Code section 2800.1(a) states that it is a misdemeanor if one drives a motor vehicle, with the intent to evade or wilfully flee or attempt to evade a police officer’s vehicle if all of the following requirements are met: 1) the officer’s vehicle has activated at least one red light visible from the front that the driver either sees or can reasonably be expected to see; 2) the officer is sounding a siren as may be reasonably necessary; 3) the police vehicle is distinctively marked; and 4) the police vehicle is being operated by an officer wearing a distinctive uniform. Section 2800.2(a) prohibits an individual from driving in violation of Section 2800.1 if the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property. “Willful or wanton,” according to subsection (b) includes an individual who evades a pursuing peace officer and commits at least three traffic violations or causes property damage. Section 2800.3 provides punishment alternatives if a violation of section 2800.1 results in death or serious bodily injury. “Serious bodily injury” is defined in Penal Code section 243(f)(4) as a serious impairment of physical condition, including loss of consciousness, bone fracture, protracted loss or impairment of any bodily member, and serious disfigurement. Section 2800.1 is a lesser-included offense of Section 2800.2. (People v. Springfield (1993) 13 Cal App 4th 1674)

Red Light Requirement: Vehicle Code section 25252 requires that every emergency vehicle be equipped with a minimum of one steady burning red light visible from at least 1,000 feet to the front of the vehicle. In addition, the emergency vehicle may display revolving, flashing or steady read lights positioned to the front, sides or rear of the vehicle. There must be evidence presented by the police vehicle was equipped with a red light that met visibility requirements. (People v. Acevedo (2003) 105 Cal App 4th 195) In People v. Brown (1989) 216 Cal App 3rd 596, witnesses testified at the trial that they observed “flashing lights.” While the defendant’s conviction was upheld for vehicular manslaughter, the evading charge was reversed since there was no testimony that a red light was visible.

Vehicle Distinctively Marked: In People v. Estrella (1995) 31 Cal App 4th 716 the police vehicle was found to be distinctively marked; the evidence showed it had a red light, siren, wigwag lights and flashing blue and clear lights. There is no requirement that the police vehicle display a symbol on it. The reason that the vehicle must be distinctively marked, as noted by the Supreme Court in People v. Hudson (2006) 38 Cal 4th 1002, fn2 is to protect the public at large from assault and other crimes of violence after yielding to a vehicle that merely flashed a red light or sounded a siren.

Distinctive Uniform: In Estrella, one officer was wearing a bullet-proof vest with the word “police” on it; the other officer wore a police department vest, a cloth badge, gunbelt and a dark blue baseball cap with the word “police” written on it in yellow letters. They were determined to be wearing distinctive uniforms since reasonable people would consider these to be police uniforms. Of note is that there is no statutory requirement that the person eluding the police actually see the distinctive uniform. In People v. Mathews (1998) 64 Cal App 4th 485, an officer was in plain clothes and wearing only a badge to identify himself as a police officer. As a uniform is a dress of distinctive design that distinguishes someone from others, he was not wearing a distinctive uniform, concluded Mathews, since a badge was not an article of clothing.

Willful or Wanton: Section 2800.2 defines “willful or wanton” to include three traffic violations as well as causing property damage. People v. Diaz (2005) 125 Cal App 4th 1484 holds that one of the three violations may not include a violation of Section 21806(a)(1) (failure to yield to an emergency vehicle) since its violation is necessarily included in the defendant’s eluding the officer. To conclude otherwise would to require only two violations, instead of the three specifically required by the Legislature. This interpretation of “willful or wanton disregard for the safety of persons or property” has been held to be constitutional. (People v. Pinkston (2003) 112 Cal App 4th 387; People v. Williams (2005) 130 Cal App 4th 1440)
Thank you Judge Klein for the authority and content provided herein.

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The Police Took My Gun, How Do I Get It Back?

In many cases the police may confiscate a firearm when a person is arrested but charges may never be filed or the criminal charges may be dismissed later in court with the help of an attorney. How do you get the gun back?

SUBJECT: REQUEST FOR RELEASE/RETURN OF FIREARMS; PENAL CODE SECTION 12021.3

On January 1, 2005, the Law Enforcement Gun Release (LEGR) process became effective as set forth in Penal Code section 12021.3.

This process requires any person who claims title to any firearm that is in the custody or control of a court or law enforcement agency and who wishes to have the firearm returned to submit a LEGR application form (see attached form) for a determination by the Department of Justice (DOJ), as to whether he or she is eligible to possess a firearm.

LEGR Application Process:

1. The individual that wants the firearm returned must submit the application with the appropriate fee to the DOJ.
2. The DOJ will do a firearm eligibility check.
3. A notice of the results of the check will be sent to the applicant.
4. The DOJ notice must be presented to the Court or law enforcement agency within 30 days of the date of the notice.
5. If the DOJ notice of results is not presented to the Court or agency within 30 days of the date of the notice, the applicant has to start all over.

California law allows the owner of a firearm that is seized by police during an arrest, where no charges are filed, to get the firearm back without a court order. If it is a weapon seized pursuant to a warrant and there is no filing, then a return of property order for a firearm should not be signed unless this section is complied with.

I have found that most lawyers and agencies are unfamiliar with this new requirement and are still just asking judges to sign a return-of-property. Please read this section before considering such a request.
http://ag.ca.gov/firearms/forms/pdf/legr.pdf

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