Can a Domestic Violence Case be Dismissed?

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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. What if the gun used was unloaded?

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 Inflict 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 ADW or 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?

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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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Vote For Sydne Michel For Judge

Redondo Beach City Prosecutor Sydne Jane Michel is running for Los Angeles Superior Court Judge, Seat 16.  Here is why we need her as a Judge:

First of all Sydne is experienced.  Too many Judges lack the experience necessary to effectively dispense justice, Sydne has the experience that makes for a great Judicial Officer.  Secondly, she is smart, has common sense and understands that a great Prosecutor tempers Punishment with compassion and can exercise discretion in cases she has handled. On a personal level Sydne is courteous and always patient with all who appear in her Courtroom. She is always open-minded. Overall, she possesses all of the personality traits that make for an outstanding Judicial temperament.

Sydne would be a great addition to the bench.

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Where Do I Report Upon Release For Community Supervision?

Anyone released from custody under re-alignment must report to the Mandatory Supervision Unit. Community Supervision is a way to release people back into the community and free up room in the California State Prison. In Los Angeles that agency is located at:

L.A. County Probation Department
South Los Angeles Area Office
236 E. 58th Street
Los Angeles, CA 90011

If you were sentenced in the Torrance Court the above Office is where you Report.

You must report within 48 hours of your release from custody.

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New Case Changes Way Courts Deal With Bail

Recently the California Court Of Appeal announced that no longer can Judges hold indigent Criminal Defendants in custody on high bail unless first considering jail alternatives. The Case will likely send shockwaves through the criminal justice system and will spark a much needed bail reform in the state.

The First District Court of Appeal in In re Humphrey, recently held that when a court sets bail, it must inquire into and determine a defendant’s ability to pay, consider nonmonetary alternatives to money bail, and, if the court determines that a defendant is unable to afford the amount of bail the court finds necessary, follow the procedures and makes the findings necessary for a valid order of detention.

Once the court concludes that the defendant cannot pay bail, the burden of proof is clear and convincing evidence of being a threat to public safety and that there are no adequate non-bail alternatives such as house arrest, home confinement, curfew, residential rehab, etc. All of these things are less costly than wharehousing a person in jail.

Research studies have consistently found that African American defendants receive significantly harsher bail outcomes than those imposed on white defendants. Specifically, nearly every study on the impact of race in bail determinations has concluded that African Americans are subjected to pretrial detention at a higher rate and higher bail amounts than are white arrestees with similar charges and criminal histories. Over twenty-five studies document racial disparities in bail determinations in state cases, federal cases, and juvenile delinquency proceedings. The adverse impact of race and ethnicity on bail determinations is not isolated to particular regions of the country, but is a pervasive and widely-acknowledged problem, documented in vast areas of the country, and similarly affecting Latino defendants.

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Judicial Profile: Judge Gary Tanaka

Torrance Judges

Torrance 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 preliminary hearings in the Torrance Court as of December 2018.

As a Judge in a prelim Court he presides over felony cases in their early stage, determining whether there is enough evidence to hold the Defendant for trial.  It is a very demanding assignment.  His previous assignment was in Division P of the Torrance Court which hears primarily misdemeanor criminal cases originating in Manhattan Beach, Gardena and the Palos Verdes Peninsula. Prior to his tenure in the Torrance Court he was a sitting Judge in Compton where he heard criminal matters.

Judge Tanaka 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.  From the perspective of a Defense Attorney he is a great Judge to appear in front of, he is respectful to all sides and very thoughtful in his decision making process.  As a local South Bay Lawyer, I am often asked whether he would be a good Judge to have, the answer is always yes.

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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