What is a Serna Motion?

Top Torrance Criminal Lawyer

Matthew Ruff, Torrance Criminal Defense Attorney

 

Here is the scenario:  A person is arrested, they are released either on bail or with an O.R. citation and given a future Court date to appear and answer to the charges.  However, the person fails to appear and a warrant is issued for their arrest.  A long period of time goes by, more than one year, and they want to clear up the matter by getting the warrant recalled.  One possible option the person has is to file what is called a Serna Motion in order to get the charges dismissed.

A Serna Motion is a request to to the Court to dismiss the case based on the delay of the prosecution to pursue the charges and pursue the case in a speedy manner.  The motion is sometimes referred to as a “Speedy Trial Motion” because the Prosecutor has denied the defendant of his right to a speedy and expeditious trial.  One of the factors the Court considers is whether the defendant willfully failed to appear, thereby contributing to the delay.  While a failure to appear is a significant factor, it in and of itself is not enough to deny the motion.

Another consideration is what prejudice the delay has caused the defendant.  In other words, how much has the delay or passage of time caused damage to any defenses the defendant can present.  One form of prejudice is the inability of witnesses to remember the event in question.  Lack of recollection can be a huge form of prejudice to the accused.  Also, evidence may have been lost or destroyed which can prejudice the case.

In California prejudice is presumed if the delay in getting the case to trial exceeds one year.  This means the defendant does not need to present evidence of prejudice if the age of the case is greater than 12 months.

How long does it take to have a Serna Motion heard by the Court?  It’s best to file a Serna motion at the arraignment or soonest possible time thereafter.  The Defense must serve the District Attorney or Prosecutor at least 10 Court days prior to the hearing.

What if the Judge grants the Serna Motion?  If the motion is granted the case is dismissed and cannot be refiled, the case is over and the defendant’s criminal record stays clean.

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Do I Need A Hit and Run Attorney?

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Matthew Ruff, Torrance Criminal Defense Attorney

If you were involved in a hit and run there are many things you need to know.  First, the crime of leaving the scene after an accident is defined in California Vehicle Code 20001.  The offense is committed when you or someone else leaves an accident without exchanging information with the other party, or if no other party is around, leaving a note and immediately reporting the incident to law enforcement.  Yes, it is not enough to simply leave your contact information with the other car, you must also contact the police if the incident occurred in Los Angeles City or CHP if the collision took place in a County area.

What if you flee but later want to go to the Police and report the accident?  Unfortunately, the crime occurs when you run and do not immediately report. Showing up the next morning or hours later could still result in your arrest.

What if the damage is slight?  Any contact with another vehicle or property of any kind requires that information be exchanged.  In today’s digital age there are cameras everywhere and there is a good chance the incident was captured on video.  The first thing the police do when responding to a hit and run is check to see if there are any surveillance cameras.  Nowadays, Ring cameras are on almost every home.

In one recent case Matthew handled the client was tracked down with Ring footage.  If you are involved in a accident where you left the scene Matt can help.  Having an experienced attorney on your side early can mean the difference between criminal charges or the case being handled on a civil level.

Call Matthew today at 310-527-4100 or visit his website Hit and Run Attorney

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Can a Domestic Violence Case be Dismissed?

Top Torrance Criminal Lawyer

Matthew Ruff, Torrance Criminal Defense Attorney

The answer is yes, in many cases.  Domestic Violence charges are some of the toughest cases to defend because prosecutors are very aggressive in pursuing the allegations.  Most District Attorneys understand that these cases are capable of becoming more serious if they are left alone so they go after them with great vigor.  The major reason for this is what I call the “OJ Simpson effect”. This is a phenomenon that proliferated after the famous criminal case in Los Angeles where OJ allegedly killed his wife following many instances of domestic violence that went unprosecuted.  The result, many believe,  was the death of Nicole Brown Simpson.  After this case DA’s got much more aggressive in the filing and prosecution of DV cases throughout L.A.

Despite this, cases involving domestic assault can be successfully resolved if handled properly.  Attorney Matthew Ruff has been very successful in getting unjustified charges dismissed in his 25 years of practice. Below is the docket of a criminal case in Torrance Court alleging Penal Code 273.5 as Count 1 and Penal Code 243e1 as Count 2.  After a thorough investigation Matthew uncovered the fact that the alleged victim, the defendants wife, lied to Police about the incident.  Matt got a statement from her admitting that she lied.  When the case was set for trial the DA announced unable to proceed and the Court granted Matthew’s motion to dismiss all charges.

Can Domestic Violence Charges be Dismissed

Torrance Domestic Violence Case Dismissed

 

Many cases, such as the actual case shown above, can and should be dropped because the allegations were false.  True, there are real cases where people, both men and women, are victims of violence in a domestic relationship.  However, there are a substantial portion of cases where the allegations were made in anger, spite or were motivated by a pending divorce and are simply untrue.  In these cases justice demands that the charges be dropped.

Matthew Ruff is a Top Tier Rated Domestic Violence Defense Attorney in Los Angeles.

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Judicial Profile: Judge Rene Gilbertson in Torrance

Torrance Judges

Torrance Judge Rene Gilbertson

The Honorable Rene Gilbertson is a Los Angeles Superior Court Judge. She was elected by the voters in 2018 and was appointed by the Governor so that she could start early rather than wait to begin her assignment in 2019.  She has been on the Torrance bench since late 2018.  Judge Gilbertson replaced the late Judge Sandra Thompson who was a fixture in that Court for 3 decades.  She left some big shoes to fill and Judge Gilbertson seems to be doing a great job.  As a local Criminal Defense attorney I have had the privilege of appearing before her on several occasions, they have all been a pleasure.  From my perspective she is smart, conscientious, fair, has a pleasant and courteous demeanor, is patient with the right measure of humility, and strives to do the “right thing”.

The following biographical information was obtained from votersedge:

  • For the past 24 years, Ms. Gilbertson has worked primarily in the area of juvenile law, to prevent child abuse and neglect and to ensure that necessary services are provided to children and families.  She began her legal career as a Staff Attorney at The Alliance for Children’s Rights and, by 1995, became the Interim Executive Director. In 1996, Ms. Gilbertson began representing children in the juvenile dependency arena at Children’s Law Center Los Angeles (formerly Dependency Court Legal Services).
  • Handled child abuse cases in Los Angeles Juvenile Court
  • Served as Legal Advisor for the County Sheriff’s Department
  • Represented indigent children and youth in the foster care system
  • Dedicated 24 years to protecting the children of Los Angeles County

Judge Gilbertson puts her experience to use in her current assignment where a large majority of her cases are misdemeanor domestic violence, many involving children.  Torrance Court, Div 2 hears all misdemeanor cases originating from Redondo Beach and Hermosa Beach California.

As a local Torrance Lawyer, I am often asked whether a specific Judge would be recommended on a particular case, with regard to Judge Gilbertson the answer is yes.

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What is Revenge Porn?

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Torrance Criminal Attorney

Cyber revenge or revenge porn has been defined as the posting of illicit pictures of another person without his or her consent, often as retaliation following a bitter breakup between partners.   

In California and throughout the nation Cyber Revenge AKA Cyber Porn is an invasive and increasingly common crime, which often involves the online posting of private or intimate photos of another person without the person’s consent.  Commonly, videos or images are taken over the course of a relationship and while the victim may have consented to the original taking of the picture, he or she did not consent to the electronic distribution of the images.  Typically, photos are posted to social media sites to shame, embarrass, harass, and intimidate the victim. In many states the law does nothing to specifically protect the victims of these acts.  Los Angeles is experiencing an epidemic of this type of behavior.

California is among a growing number of states that have enacted laws to protect people’s privacy in the bedroom.  What two Consent adults do of a sexual nature is between them and them alone, but is it?  With the advent of the internet and social media it has become increasingly easier to post pictures, videos and other media on the World Wide Web for all the World to see.  But what if what is being posted is a sexual act or photograph with someone else who did not intend the encounter to become public?  In California this could be a crime.

Penal Code Section 647 (j)(4) is the relevant law in the area.

California Penal Code 647(j)(4) PC, sets forth the legal definition of revenge porn/nonconsensual pornography as follows:

  1. Possession of an image of the intimate body part of another identifiable person, or an image of that individual engaged in sexual intercourse, sodomy, oral copulation or masturbation;
  2. The person in possession intentionally distributes that image;
  3. When the image was taken, an understanding existed between you and that person that the image would remain private;
  4. You know or should know that the distribution of the image will cause the person serious emotional distress; and
  5. The person shown in the image suffers serious emotional distress.

Currently the crime is a misdemeanor in the state and is punishable by as much as one year in the County Jail.

With this in mind, when is it against the law to post a picture of your girlfriend or ex-wife on the internet?  If the photo was at one time private and you break up with the person get angry and post a sexually explicit photo or video to get back at the person this will likely result in a criminal prosecution.

What should you do if the police contact you and allege you engaged in revenge porn?  Understand that the police are not there to help.  First, tell the officer you want to cooperate but need time to first speak a lawyer.  The Constitution gives every person the right to say this without being punished.

If you have been arrested in Los Angeles for committing cyber porn, Call Criminal Defense Attorney Matthew Ruff for a discreet free consultation at 310-527-4100.

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Can A Person Commit an ADW if the gun is unloaded?

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Torrance Criminal Attorney

Can a Defendant in a Criminal Case commit an ADW with an unloaded gun?

In order to answer this question we must first understand the legal elements of the crime of ADW Firearm. The legal definition of California assault with a deadly weapon, Penal Code 245(a)(2) PC, consists of the following “elements of the crime” as set forth in CalCrim 875:

The person performed an act with a firearm that, by its nature, would probably result directly in the application of force to someone else;
The person performed that act willfully;
When the person acted, they were aware of facts that would lead a reasonable person to believe that the act would directly and probably result in the application of force to that person; and
When the person acted, they had the present ability to apply force with the firearm.
These “elements” are the facts that the prosecutor must prove in order for a person to be guilty of the offense of ADW firearm, Penal Code 245, in California.

The Present ability to apply force element.

It is obvious that In order to be guilty of assault with a firearm, you need to have had the “present ability” to apply force with that firearm.

This means that you are not guilty of this crime if you waved or pointed an unloaded firearm at someone—because in this case you would not actually have had the ability to inflict violence with the firearm.

The only exception is if you were using the gun as a club or a bludgeon—that is, if you were hitting or attempting to hit someone with a gun, rather than firing it.

See, for example, People v. Fain (1983) 34 Cal.3d 350, 357 fn. 6. (“The threat to shoot with an unloaded gun is not an assault, since the defendant lacks the present ability to commit violent injury.”)

It has also been observed that the threat to shoot with an unloaded gun is not an assault, since the defendant lacks the present ability to commit violent injury. (People v. Lee Kong (1892) 95 Cal. 666, 669 [30 P. 800]; see People v. Wolcott (1983) 34 Cal.3d 92 at p. 99 where the Court observed: “if a person points an unloaded gun at another, without any intent or threat to use it as a club or bludgeon, he does not commit … assault under Penal Code section 240 ….” (People v. Mosqueda (1970) 5 Cal.App.3d 540, 544 [85 Cal.Rptr. 346]; People v. Sylva (1904) 143 Cal. 62, 64 [76 P. 814].)

Furthermore, the jury instruction Bench Notes for this particular offense itself, CALCRIM No 875, recognizes that there must be proof the gun was loaded in order to constitute the crime of Penal Code 245(a)(2) and Penal Code 245(b). CALCRIM 875: “To Have Present Ability to InXict Injury, Gun Must Be Loaded Unless Used as Club or Bludgeon. People v. Rodriguez (1999) 20 Cal.4th 1, 11, fn. 3. Emphasis added”

Indeed, the preeminent authority on California Criminal Law, Witkin, has recognized:
“Practically all of the cases applying the present ability limitation…hold that threatening to shoot someone with an unloaded gun is neither simple assault nor an assault with a deadly weapon. See People vs. Silva (1904) 143 Cal 62, 63.” Witkin California Criminal Law, 3D Edition, Crimes Against Person, §9, pg 644.

Based on the foregoing authority, a person cannot be found guilty of assault with a firearm in California unless it is proven that the firearm was loaded or the firearm was used as a Club or bludgeon.

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What is the Normal Punishment For a DUI in Torrance?

DUI Attorney in Torrance

Torrance DUI Attorney

Sentences for a first offense driving under the influence vary throughout California Courts, some Courts are more lenient than others. Torrance tends to be somewhere in the middle, not the toughest, but certainly not the most sympathetic to drunk drivers.

For starters, if you are convicted anywhere in Los Angeles County you will be required to install an ignition interlock on your vehicle for a minimum period of 5 months. Secondly, you will be required to get an SR22 and keep it for 36 months. These are both mandatory requirements that the DMV will impose, not the Court.

Here is a breakdown of the sentencing ranges for a conviction on any VC23152:
1. Informal Probation for a minimum of 36 months
2. Completion of a alcohol offender program at a minimum of 3 months, up to a maximum of 9 months.
3. Completion of a MADD program which is a two hour class that goes over the dangers of drinking and driving, sometimes referred to as a victim impact program.
4. The HAM program which is the hospital and morgue. The person spends 4 hours at the USC medical center where they are educated about the consequences of drunk driving and 8 hours at the LA County Morgue. They are also required to write an essay about what they learned.
5. A monetary fine anywhere from $2000 to $3000, the base fine is $390-$500, however penalty assessments multiply that to a far greater amount.
6. Community Service or labor ranging from none up to 15 days depending upon the blood alcohol level involved.( examples are Cal Trans, Beach cleanup or graffiti removal)
7. Jail, if a refusal is alleged.
8. Restitution for any damage caused by the incident such as property damage or medical bills.
9. A booking fee to the city that arrested you, ranging from $250 up to $500.
10. Loss of your drivers license, anywhere from 4 months to one year depending on the facts such as refusal or high BAC.

It is important to understand that these punishments are not always imposed but are customary. Also, these consequences are for a first offender over 21 with no injury and no kids in the car.

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