Southern California Defense Blog

In the recent case of People v. Santos Dominguez (2010) 2010 WL 60237 (hereafter Dominguez), the California Court of Appeal held that the amount of force required for false imprisonment of an unresisting infant or child is the amount of physical force required to take and carry the child away a substantial distance for an illegal purpose or with an illegal intent. The court also clarified what constitutes “violence, menace, fraud or deceit” for felony false imprisonment.

In Dominguez, the defendant lived in the same apartment building as two female girls, ages four and six. The defendant did not know the two girls and was not related to either of them. According to the prosecution, the defendant repeatedly hugged the two girls, twice asked the six-year-old where her mother was, and told the six-year-old he wanted to take her to a restaurant. The defendant physically carried the four-year-old outside of the apartment building while the six-year-old followed. When the defendant came upon another man in the building, the defendant stopped and put the four-year-old down.

The defendant claimed he never saw the two girls before the incident and denied picking up or touching the four-year-old. The defendant said that he was merely trying to stop the girls from leaving the apartment building gate to play, wanting them to stay inside. The defendant denied asking the girls if they wanted to go to a restaurant.

Continue reading "California Court of Appeal Clarifies "Force" Requirement of False Imprisonment - PC Section 236-237" »

Most felonies could be charged as lesser offenses. In other words, the lesser offenses are a part of the felony because they include the same elements. Typically, the jury must be instructed on the lesser included offense.

For example, the crime of felony assault includes the lesser offense of simple assault. Simple assault requires that the prosecution prove the following elements:

• The defendant willfully attempted to inflict injury upon another, or the defendant willfully attempted to threaten to inflict injury upon another; and


• The defendant had an apparent present ability to carry out such injury or threat; and


• This injury or threat causes the victim to have a reasonable apprehension of immediate bodily harm.

Felony assault requires that the prosecution prove the elements of simple assault plus the fact that the defendant used a deadly weapon. Thus, all the elements of simple assault are required to prove felony assault. The jury would be given instructions to convict the defendant of either felony or simple assault, rather than only be given instructions to convict the defendant of felony assault.

An instruction on a lesser-included offense is warranted if

1. "the elements of the lesser offense are a subset of the elements of the charged offense, and


2. the evidence would permit a jury rationally to find [the defendant] guilty of the lesser offense and acquit [him/her] of the greater." Schmuck v. United States, 489 U.S. 705, 716 (1989); Keeble v. United States, 412 U.S. 205, 208 (1973)).

Continue reading "Lesser Included Offenses: How An Experienced Criminal Defense Attorney Could Save you From a Felony Conviction" »

It was recently reported that three individuals were arrested in connection to a vandalism case in El Cajon, California. Oswaldo Sanchez (19 years old), Aaron Menjuga (18 years old), and a minor (male, 16-years old) were all taken into custody when police pulled them over for an unrelated traffic stop. The police found BB guns and ammunition in the vehicle. Earlier that same day over 13 cars had been damaged by what police believe were caused by BB guns. The damage to the vehicles is estimated to be several thousand dollars.

California Penal Code 594 states the following in regards to vandalism: “(a) Every person who maliciously commits any of the following acts with respect to any real or personal property not his or her own, in cases other than those specified by state law, is guilty of vandalism:

1. Defaces with graffiti or other inscribed material.


2. Damages.


3. Destroys."

Vandalism can be charged as a misdemeanor or felony depending upon the circumstances.

Continue reading "How Hiring an Experienced San Diego Criminal Defense Attorney Can Help You if You Are Charged with Vandalism - Penal Code Section 594" »

California Penal Code Section 240 defines an assault as an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another. In other words, it is some type of action that attempts to physically injure someone.

You will often hear the defendant was charged with “assault & battery.” This means that the defendant is charged with two crimes. Assault is different from battery. Assault actually does not need to cause an injury or any physical contact. Assault is just the attempt to cause the injury. Therefore, even if no one gets hurt, you can still be charged with this crime.

For example, a person might be at a bar and he might take a swing at someone. The person dodges the punch. The person who took the swing can still be properly charged with criminal assault.

Now, picture the same scenario above, but the person actually swung a baseball bat at the person and still missed. The person will likely be charged with criminal assault with a deadly weapon under Penal Code Section 245, which can be a serious felony. This can happen even though the accused did not actually strike the alleged victim.

Continue reading "I am Accused of Criminal Assault - What should I Do? - California Penal Code 240" »

Recently, a California appellate court has concluded that even if you have a signed lease to enter your apartment, that may not constitute a complete defense to burglary when there is sufficient evidence to conclude that the defendant did not have “an unconditional possessory interest” in the apartment rented with another person at the time of commission of burglary.(People v. Ulloa (Cal. App. 4 Dist., Dec. 21, 2009, No. E045880) 2009 WL 4895082.)

In Ulloa, the defendant was convicted of first degree residential burglary, receiving stolen property, and misdemeanor vandalism as a result of breaking into an apartment leased together with his then-wife, and taking her purse and $900 from her wallet following a domestic violence confrontation. On appeal, the defendant contended that he could not possibly commit burglary as a matter of law because he was a cotenant in the apartment where the alleged burglary occurred.

The appellate court has disagreed. Although both the defendant and the victim jointly signed an apartment lease, and the lease was in full force and effect at the time of the charged crimes occurred, the defendant did not own the property, and his possessory interest was not “unconditional” due to abandoning his unconditional possessory interest in the apartment by moving out.

Continue reading "A Person Can be Convicted of Burglary of the Apartment Which He Leases: California Penal Code Section 459" »

Why Having an Experienced Drug Offense Attorney Can Mean the Difference Between Jail and Freedom

A recent California Court of Appeals decision, People v. Archer, held that, in medical marijuana possession cases, the jury must be informed that the patient has a right to possess an amount that is reasonably related to the patient’s current medical needs.

The California Legislature recently enacted Health and Safety Code section 11362.77 of Medical Marijuana Program Act (MMPA), which provides that the “legal limit” for possessing medical marijuana was eight ounces. However, before the legislatures enacted section 11362.77, the only relevant section as to how much marijuana a medical marijuana patient could possess (or cultivate) was section 11362.5 of the California Health and Safety Code. Under section 11362.5, subdivision (d) of the Heath and Safety Code, the only qualification concerning the amount of marijuana that a medical marijuana patient could possess (or cultivate) was that the marijuana be for the "personal medical purposes" of the patient. (section 11362.5, subd. (d).)

Therefore, assuming section 11362.77, subdivision (a) of the MMPA, is unconstitutional, as the parties jointly contended, the relevant law on the issue of the amount of marijuana Archer could possess would be section 11362.5 of the California Health and Safety Code and the cases interpreting that statute.

As noted, courts have interpreted this qualification to mean a reasonable amount: "[T]he quantity possessed by the patient or the primary caregiver, and the form and manner in which it is possessed, should be reasonably related to the patient's current medical needs. What precisely are the 'patient's current medical needs' [is], of course . . . a factual question to be determined by [the jury]." (People v. Trippet, 56 Cal.App.4th at p. 1549.)

Here, the evidence in the record showed Archer was using about a half pound of medical marijuana each month in April 2006, mostly by ingesting it, and that he possessed about 1.72 pounds of marijuana—or about a three-month supply of medical marijuana—when police entered his home and confiscated it and his plants. There was no evidence Archer possessed the 1.72 pounds of marijuana for purposes other than for his own personal medical use.

Continue reading "Possession of Medical Marijuana is Limited to the Patient's Current Medical Needs" »

Palmdale is a fast-growing city situated in Los Angeles County’s northeast region. With an approximate population of 151,346, Palmdale attracts new inhabitants throughout the year partially due to its proximity to the beautiful San Gabriel Mountain range. Palmdale is California’s largest desert city and is mainly occupied by family communities. Despite being a safe and prosperous city, arrests for driving under the influence (DUI) do take place in Palmdale from time to time in which a Department of Motor Vehicles (DMV) hearing will probably occur as a result.

Being arrested for DUI in Palmdale can be an overwhelming experience, especially since there are several issues to consider, such as the standing of your driving privileges. Many motorists in Palmdale are not aware that their driver’s license will be taken away by the police officer who makes their arrest. After your arrest, you only have ten days to schedule a DMV hearing to defend your name and fight to retain your driver’s license. Failure to schedule a hearing with the DMV will result in an automatic driving suspension of thirty days or more and a surrender of a DMV hearing.

In order to make sure that your rights are aggressively and effectively defended, you should get in touch with an experienced Palmdale DMV hearings lawyer. At Wallin & Klarich, our skilled Southern California criminal defense attorneys have been defending those facing criminal offenses for more than 30 years. We have the legal knowledge and resources to assist you in obtaining a successful outcome at your DMV hearing and in your DUI case. Call Wallin & Klarich today at 1-888-280-6839 or visit our website at www.wklaw.com for more information.

As discussed yesterday, the California Supreme Court unanimously affirmed the verdict of death after the jury in the Sacramento County convicted the defendant of the first degree murder of a deputy sheriff and of the attempted wilful, deliberate, and premeditated murder of three other peace officers stemmed from an incident of domestic violence on March 2, 1995, in Ravendale. (People v. Ervine (2009) 47 Cal.4th 745.)

Another issue addressed by the court, in addition to the right to counsel issue discussed yesterday, was evidentiary in nature. With regard to the evidentiary issues, the Court has ruled that the trial court did not err in allowing out-of-court statement by the defendant’s wife regarding defendant’s felony assault against her. At trial, as proof that the officers were engaged in the lawful performance of their duties within the meaning of the special circumstance allegation, and that the officers had probable cause to believe that defendant had committed a felony assault against his wife, the prosecution put on stand two officers who testified as to what they had been told by the dispatcher and by defendant's wife during her 911 call.

The Court has upheld the trial court’s finding that statements police officer relied upon to determine existence of probable cause to arrest an individual were admissible against hearsay objection because they were not offered for its truth but to show either officer’s state of mind or existence of special circumstances. Among other evidentiary issues, the Court has determined that the exclusion of defendant's handwritten statements made after he shot the officers was not erroneous because there was ample evidence to doubt his motives and sincerity to qualify it as a spontaneous statement exception to the hearsay rule or a statement of declarant’s then existing mental or physical state.

Continue reading "The California Supreme Court Affirmed a Death Sentence for the 1995 Murder of a Deputy Sheriff in Lassen County: Criminal Defense Issues Discussed on Appeal, Part II" »

As the ninth fastest expanding city in the United States, Lancaster is situated in Southern California’s Antelope Valley. Lancaster has an approximate population of 145,243 and is the eighth biggest city within Los Angeles County. In bringing in several national and local companies from various types of industries and businesses, many people are drawn to Lancaster to pursue the American Dream. However, as a consequence of being such a busy and densely populated city, arrests for driving under the influence (DUI) have been known to take place in Lancaster in which a Department of Motor Vehicles (DMV) hearing will likely follow.

Many motorists in Lancaster do not realize that if they are arrested for DUI, their driver’s license will be taken away from them. At this point, a person charged with driving under the influence of alcohol or drugs only has 10 days to schedule an administrative hearing with the DMV. License suspension in Southern California is a serious matter and a DUI conviction can impose many harsh consequences. However, with an experienced Lancaster DMV hearings lawyer on your side, you may be able to retain your driving privileges and reach a successful outcome in your DUI case.

If you have been arrested for DUI in Lancaster, do not waste any time in contacting a skilled criminal defense attorney who has experience handing DUI cases and DMV hearings. At Wallin & Klarich, our aggressive lawyers will fight your license suspension by challenging the technical basis for your arrest and the charges being held against you. Our criminal defense law firm has been defending the rights of individuals facing criminal charges such as DUI for more than 30 years. Call Wallin & Klarich today at 888-280-6839 or visit www.wklaw.com for more information.

In one of its last decisions of 2009, the California Supreme Court on automatic appeal has unanimously affirmed the verdict of death after the jury in the Sacramento County convicted the defendant of the first degree murder of a deputy sheriff and of the attempted wilful, deliberate, and premeditated murder of three other peace officers stemmed from an incident of domestic violence on March 2, 1995, in Ravendale. (People v. Ervine (2009) 47 Cal.4th 745.)

The defendant raised many issues in appeal. The Court has dismissed a claim of violation of the defendant’s right to counsel when the jail personnel had entered defendant's cell while he was in court and read all of his notes which included materials sent to the defendant by his attorney. The trial court made a factual finding that Sacramento County jail personnel had read defendant's privileged legal materials. However, because the defendant did not offer any evidence that jail personnel had communicated the confidential defense information to the prosecution, the trial court determined that defendant had failed to make out a prima facie violation of his Sixth Amendment right to counsel.

The Supreme Court has first established that not every intrusion into attorney-client privileged communication automatically establishes a prima facia violation of the Sixth Amendment. In fact, to be cognizable on appeal there must be a showing of evidence that the confidential communication was actually conveyed to the prosecution team for the defendant to claim that his right to counsel was violated.

Continue reading "The California Supreme Court Affirmed a Death Sentence for the 1995 Murder of a Deputy Sheriff in Lassen County: Jailers Unlawfully Seize Defendant's Notes of Conversations with His Attorney, Part I" »

It was recently reported that a 62-year old woman died as a result of her injuries in a hit and run accident in Los Angeles. The woman, whose name has not yet been released, was hit while she was crossing a street near Normandie Avenue and West Adams Boulevard. The man believed to have hit the woman was driving a black Toyota Camry. Police are trying to locate the driver, who will be facing hit and run charges.

In the state of California, the driver in the above situation will be facing felony hit and run and possibly homicide charges. Potential penalties can include prison time, hefty fines, and loss of driving privileges for the rest of his life.

Continue reading "How Hiring An Experienced San Diego Criminal Defense Attorney Can Help You If You Are Arrested for a Hit and Run - CVC 20001 - CVC 20002" »

If you are convicted of a crime against another person, you have the right to have a hearing to determine how much restitution is owed to the victim. At that hearing, there needs to be a showing in front of a judge to determine the amount that the victim is entitled to, as a result of the crime.

Most people would expect that the victim be entitled to reimbursement for certain medical expenses as well as psychological or other mental health counseling (not to exceed $10,000.00).

What many people may not know is that victims of crimes may be entitled to be reimbursed for many other expenses, including:

• Non-medical remedial care and treatment in accordance with a religious method of healing recognized by the state


• Job retraining


• Claims for an increase in residential security for the victim’s home


• Relocation costs


• Child care


• Funeral costs (if the victim died as a result of the crime)

Continue reading "How Reimbursement For Victims of Crimes Affects Restitution Costs In Criminal Cases - Restitution May Include Many More Things Than You Might Think" »