Judicial Profile: Judge Gary Tanaka

Gary Tanaka is a Judge on the bench in Torrance Superior Court. Judge Tanaka is a well respected Jurist among the criminal defense bar and prosecutors. He currently presides over Dept P in Torrance Court which hears primarily misdemeanor criminal cases originating in Manhattan Beach, Gardena and the Palos Verdes Peninsula. He has a reputation for being fair and impartial to both sides, has a great judicial temperament and gives well thought out and reasoned legal decisions.

Prior to his appointment in 2009 he had served as a deputy county counsel then senior deputy county counsel for the Los Angeles Office of the County Counsel since 2006. Prior to that, he was a deputy alternate public defender for the Los Angeles County Alternate Public Defender’s Office from 2001 to 2006 and a deputy public defender for the Los Angeles County Public Defender’s Office from 2000 to 2001. From 1991 to 2000, Tanaka was an associate for Astor & Phillips. He earned a Juris Doctorate degree from Western State University College of Law and a Bachelor of Science degree from Western State University. Because of his experience as an alternate public defender he has great knowledge and practical understanding of criminal law.

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Restoring Gun Rights After A 5150 Hold

In California law enforcement can take your firearms if you are detained on a 5150 hold.  Getting them back may be difficult, but not impossible.  W&I Code § 8103(f)(1) makes a person ineligible from owning, possessing, controlling, receiving, or purchasing a firearm (or attempting to do so) for five years unless you take advantage of the statutory provisions for a subsequent court order to regain your right to possess a firearm (W&I Code § 8103(f)(4)-(7).  If a motion is filed with the Court a hearing will be set.  Having an attorney is not mandatory, but it is very difficult to prevail without one.

At such a hearing, hearsay, in the form of declarations, police reports, criminal history information; and any other material and relevant evidence (subject to exclusion pursuant to E.C. § 352; i.e., where the “probative value” of such evidence is outweighed by its “prejudicial effect”) is admissible. (Subd. (f)(5) & (9).) At this hearing the standard of proof is preponderance of the evidence and the District Attorney has the burden to establish your gun rights should not be restored. Although  an individual’s right to possess firearms is of fundamental constitutional stature (i.e., the Second Amendment), it remains subject to the state’s traditional authority to regulate firearm use by individuals who have a mental illness.

Under subdivision (f)(6), the People of the State of California, represented by the District Attorney, has the burden of showing at such a hearing by a “preponderance of the evidence” that the person petitioning to regain his or her right to own, possess, control, receive, or purchase a firearm “would not be likely to use firearms in a safe and lawful manner.”

I hope this article has been helpful.  As a local Torrance Criminal Defense Attorney, if I can be of assistance let me know.

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New Law In California May Allow Removal From Sex Offense Registry

The bill allows most sex offenders to petition beginning in 2021 to be removed from both the public and the police registries 10 to 20 years after they are released from prison, as long as they have not committed another serious or violent felony or sex crime.

Governor Brown had previously indicated he would sign the reform, which for years stalled amid pushback from reluctant lawmakers who did not want to be seen as soft on crime. The bill was pushed by law enforcement agencies, that argued that California’s sex offender registry is so large that officers and the public can’t determine who is at high risk for reoffending. The registry has 100,000 sex offenders — meaning 1 in 400 Californians is on it.

California is one of four states to require lifetime registration with no current ability to be removed from the sex offender database at any point.

“With this reform, our law enforcement agencies will be able to better protect people from violent sex offenders rather than wasting resources tracking low-level offenders who pose little or no risk of repeat offense,” Wiener said in a statement. “Our sex offender registry is a tool used to prevent and investigate crimes, and these changes will make it a better and more effective tool for keeping our communities safe.”

The state’s registry will have now have three tiers, with the first tier allowing people convicted of crimes like misdemeanor sexual battery, misdemeanor possession of child pornography and indecent exposure to petition to be removed from the registry after 10 years. Tier one has the largest number of sex offenders, with up to 65,000 people potentially falling into that category.

Those offenders would not all come off the registry at once since a portion of those people would not have finished waiting the mandatory minimum of 10 years on the registry after their release from prison.

The next tier includes people convicted of lewd and lascivious acts with a minor, oral copulation with a minor under 14 years old and non-forced sodomy with a minor under 14 years old. The second tier, which requires sex offenders to register for a minimum of 20 years, has potentially 24,000 people.

Crimes like rape, sex crimes against children 10 and younger, repeated sex crimes and sex trafficking minors, put a sex offender in a third tier that requires them to be on registry for life. That tier has an estimated 8,200 people.

LGBTQ groups like Equality California supported the bill, saying the changes will help gay and lesbian people who were targeted by police for crimes like consensual sex among adults in a park.

“Gov. Brown’s signature will restore livelihoods and help restore the registry as a tool for investigating those who pose a real danger to society,” said Rick Zbur, executive director of Equality California.

Under current law, when a person is required by a judge to register as a sex offender, there are few ways to have their name removed from the registry, regardless of the underlying offense. That’s resulted in a registry that includes 650 sex offenders whose last convictions were in the 1940s and 1950s, according to the Sex Offender Management Board. Another 3,000 were last convicted of a sex crime in the 1960s and 1970s.

Supporters of the bill, including scholars and victim advocates, argued that research shows that the longer people are crime-free, the less likely they are to reoffend, thus keeping sex offenders on the registry for decades does not reduce crime.

Local law enforcement agencies estimated that they spend two-thirds of the money intended for supervising sex offenders on paperwork for low-risk offenders. That money, Alameda County District Attorney Nancy O’Malley argued, would be better spent monitoring higher-risk offenders.

Many criminal defense attorneys applaud the new law as it will allow for more just imposition of the requirements to register as a sex offender and give many an ability to reform and earn removal from the list.

Courtesy of CPDA.

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High Court Rules Hit and Run Driver Owes No Restitution

Often in hit and run cases a Court will order Restitution of the damages caused in the accident as part of probation. Recently a Court of Appeals held the driver in a hit and run case is not automatically responsible for Restitution of the injury.

The Court observed: Where a defendant is convicted and sentenced to state prison, he must pay restitution directly to the victim for losses incurred “as a result of the commission of the offense” (Pen. Code, § 1202.4, subd. (a)(1)) in an amount sufficient to fully reimburse the victim for all economic losses (Pen. Code, § 1202.4, subd. (f)(3)). However, there must be a nexus between the victim’s losses and the defendant’s criminal conduct. Vehicle Code section 20001, subdivision (a) requires the driver of a vehicle involved in an accident resulting in injury to a person, other than himself, to stop at the scene, provide identification, render aid to the victim, and report the accident. Although an accident is a necessary predicate to the imposition of a duty to stop, a conviction under section 20001 does not require a showing that the fleeing driver was at fault for the accident. If restitution for accident-related injuries were allowed solely on proof a defendant fled the scene of an injury accident, that would mean that section 1202.4 allowed victim restitution even if the victim was solely responsible for the accident. This would serve no restitutionary purpose and could raise constitutional questions. “[T]he trial court was authorized to order restitution for those injuries that were caused or exacerbated by defendant’s criminal flight from the scene of the accident, but it was not authorized to award restitution for injuries resulting from the accident itself.” Thanks Ccap.
People vs. Martinez.

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California DMV Negligent Operator Hearing

In California you can be suspended if you incur too many points during a certain time period. Here is the maximum amount of points you can incur:

Point Count Time Period
4 Within 12 months
6 Within 24 months
8 Within 36 months

The good news is that if you receive a notice of suspension and within 14 days contact an attorney to request a hearing, most suspensions can be avoided.

The following are the issues at a hearing:

Severity and Pattern of Violations and Collisions

Review of the driving record should determine and consider the severity of the violations (i.e. DUI, hit & run, etc.).

The driver record should also be reviewed to determine if it shows a pattern of repeated violations or collisions. Examples include:

Multiple speed violations.
Right of way violations.
Signal and stop sign violations.
Patterns of violations and collisions should be compared to the driver’s proposed corrective measures and weighed in evaluating whether the driver’s plans for improvement are reasonable and credible.

Insight and Acceptance of Responsibility

The driving record will be reviewed to determine if the driver has a history of driving negligence, or if this is the first case of negligent operation. Stated remorse for past negligent driving may not by itself constitute evidence of the driver’s understanding or acceptance of traffic safety responsibilities. The driver should offer some explanation that demonstrates that he or she understands and accepts his or her behavior and that insight will result or has resulted in corrective measures.

Prior history of suspensions for negligence should be weighed in evaluating the credibility of the driver’s current expressions of concern for traffic safety and the reasonableness of the driver’s plans for improvement.

Mitigating Circumstances

Mitigation means extenuating, contributory factors, offered by the driver to lessen the degree of negligence. Mitigating circumstances will be weighed against the amount and seriousness of negligence shown by the evidence of the driving record and the driver’s testimony.

Example: She drives taxi in downtown San Francisco traffic, avoids many collisions, but unable to avoid them all. (High mileage and extreme driving conditions.)

It is not possible to list all the circumstances which may be considered “mitigating.” A circumstance may be mitigating in one case and not in another. The hearing officer determines if the mitigating circumstances reduce the negligence shown by the record.

Plans for Improvement/Corrective Measures

The driver may offer testimony that he/she believes lessens the degree of negligence shown by the record. The best evidence of correction of driving habits is a description of specific and reasonable steps that are currently being taken and of the control measures used to discourage “backsliding.”

Example: A driver with a speeding problem who shows evidence that a cruise control has been installed in the vehicle and plans to activate the cruise control on freeways, may have a greater chance of following through on a promise to slow down.

Any plans presented will be examined in light of the driver’s credibility and past actions in these circumstances.

Vehicle Use and Mileage

“Use” is interpreted to include the driver’s total vehicle use as well as use for work, school, medical treatments, or other routine activities the driver regards as significant. “Mileage traveled” includes both employment and nonemployment mileage.

Example: She previously drove a taxi in downtown San Francisco, she recently quit the job and is now working as a waitress.

The Vehicle Code does not limit consideration to employment related driving, nor does it specify how the driver’s amount of use and mileage should be weighed.

Hardship

In some cases, the driver may present mitigation relating to hardship. Hardship may include situations where:

The driver is a major contributor or sole provider of his or her family income.
Alternative transportation is not available for significant, routine activities, such as school, medical treatments, or employment.

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How Do I Get A Copy Of My Criminal Record?

Many people find a need to get a copy of their own criminal records, for example, when you are searching for a new job it is helpful to know what is on your public record. The best way to get a copy of your criminal background is through the California Department of Justice. They maintain all records relative to convictions in California.

Private companies that offer a copy of your background may not provide complete information so it is best to go directly to the government entity that maintains those records.

Here is the link to get started:
Get a copy of my criminal records in California

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Taking A Cellphone From Your Spouse Could Be Robbery

In a very interesting case a California Appeals Court has ruled taking a cellphone from your wife with force during an argument could constitute robbery, even if the phone is community property. The case is People v. Aguilera (2016) 244 Cal.App.4th 489, here are the facts:

The defendant and his wife were involved in a heated argument and physical fight, Defendant took her cellphone and wallet from the purse, throwing the purse back into the car. Responding police found defendant a block away talking on his cellphone with his wife’s cellphone and wallet in his pocket. Both he and his wife suffered minor cuts and bruises in the altercation. Defendant was charged among other things with a second degree robbery for taking the cellphone from her by force and violence. However, there was testimony at defendant’s subsequent trial to the effect that the cellphone, having been purchased by defendant for his wife and to which he had ready access, was community property. Despite this evidence, the trial court declined to instruct the jury on the difference between community and separate property and he was Convicted of second degree robbery and other charges including domestic violence.

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