Should Internet Trolling Be a Serious Crime?

November 17, 2014,

If you spend any amount of time online (and we know you do because you are reading this article), you are undoubtedly familiar with Internet “trolls.” These are the people who, empowered by the anonymity of the Internet, seemingly only enjoy life when they are making someone else’s life miserable. internet%20trolls.jpg

Trolls usually operate by reacting to an online opinion post or comment of someone by deliberately posting offensive or inflammatory replies. The goal is to push the buttons of the other person, and the troll gleefully watches as their target becomes upset. In extreme cases, trolling gradually evolves into something worse: cyberbullying, which often involves severe harassment, and even threats of death or serious bodily injury against the other person or their family.

In the United Kingdom, Parliament has decided to take a stand against Internet trolls. A new law has been proposed to amend the 1988 Malicious Communications Act. At the time it was passed, the Malicious Communication Act created a six-month sentence for persons who intentionally send indecent or grossly offensive messages and threats. 1 The law, passed before the age of social media and online comment sections, will be updated to include messages sent through electronic means, and will increase the maximum jail time to two years.

British Justice Secretary Chris Grayling said, “These Internet trolls are cowards who are poisoning our national life. No one would permit such venom in person, so there should be no place for it on social media. That is why we are determined to quadruple the current six-month sentence.” 2

California’s Approach to Cyberbullying and Cyberstalking

California provides for administrative punishment by schools for students who engage in cyberbullying while on campus or at a school activity. Under California Education Code Section 48900(r), schools may suspend or expel students who engage in acts of bullying, which are defined as those acts that induce fear, create a substantial detrimental effect on the physical or mental health of the student, or interfere with another student’s academic and social life by means of a “severe or pervasive physical or verbal act or conduct, including communications made in writing or by means of an electronic act.” 3

In addition, California Penal Code Section 646.9 states that “any person who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family is guilty of the crime of stalking.” 4 Under this law, "harasses" means to engage to seriously alarm, annoy, torment, or terrorize another person without a legitimate purpose.

The anti-stalking law includes provisions for threats made via electronic means of communication, which includes threats using a cellphone or a computer. You could be charged with either a misdemeanor or a felony under this law. A misdemeanor is punishable by one year in county jail and a $1,000 fine, while a felony conviction could lead to up to five years in state prison and the same fine.

Bullying or Free Speech?

The truly horrific cases of trolling are those that have resulted in the suicides of targeted persons, many of whom were adolescents who could no longer stand the constant badgering of their peers, or worse yet, harassment from adults. 5 In those cases, the primary threats were of embarrassment or social isolation, not physical violence.

The difficulty with laws that are meant to curb cyberbullying is balancing the protection of people’s right to be free from harassment against the protection of people’s right to free speech. Our country was built upon the idea that each person has the right to speak his or her mind, and though that right is not unlimited, establishing a line between debate and harassment is not an easy task.

Examining the language in the British law appears to reveal a much broader and tougher law, as it includes punishment for “indecent or grossly offensive” messages and places threats in a separate category. This appears to mean that the United Kingdom intends to treat merely distasteful online messages the same as it treats threats, and do so with a harsh two-year sentence. Rather than draw a distinction between behaviors that are truly harmful and those that are merely irritating, it appears that Parliament would prefer the British courts lump all of them together and spend their time prosecuting people for being rude.

Anonymity breeds bravery on the Internet. It is easy to become a tough guy behind a screen name and a keyboard. While it is tempting to paint all trolls with the same brush, it is braver to suffer through the merely distasteful and spend valuable resources on the real threats to peace and harmony. California’s approach appears to do a better job of that.

Share Your Feedback With Us

We at Wallin & Klarich would like to hear from you about this topic. Do you agree with either the British or State of California’s approach to Internet trolling? What are some of the reasons you see that would make these laws a good or bad idea? Please feel free to leave your comments below.

1. [Malicious Communication Act 1988 c.27, §1.]
2. [BBC News, “Internet trolls face up to two years in jail under new laws,” October 19, 2014, available at]
3. [Cal. Ed. Code §48900(r).]
4. [Cal. Pen. Code §646.9.]
5. [For an account of cases where cyberbullying contributed to the suicide of the victim, visit]

iPads for Inmates?

November 14, 2014,

Think of all the technological innovations over the last two decades that we use to stay connected to each other on a daily basis: computers, tablets, smartphones, and wireless Internet access. For many of us, it is difficult to imagine living without these conveniences. tablet.jpg

What if you had been asleep for the past 20 years? What would you think an “app” is? To you, a smartphone would look like something out of a science fiction movie, and it would be staggering to you if someone told you that an infinite amount of information could be accessed from a device that fits in your pocket. You would feel like a time traveler who had gone far into the distant future.

This is exactly what it would be like if you had just been released from prison after 20 years. Technologically speaking, prisoners exist in a state of suspended animation. Cut off from the world that has advanced leaps and bounds from the time they began their sentences, many prisoners have never seen the things the rest of us take for granted.

How in the world are they supposed to catch up and reenter society as productive citizens capable of holding a job that will likely require them to know at least a little about life in the Information Age?

Better Rehabilitation Through Technology

One California city is leading the way in getting its prisoners up to speed on today’s technology. A new pilot program in San Francisco has provided 100 inmates in the city’s jail with special tablet computers that have limited access to the Internet for purposes of educating inmates. The tablets can only access four secure websites, including a law library, and educational sites designed to help inmates get their high school diploma and learn new skills that will help them reenter society upon their release.

San Francisco’s pilot program cost $275,000, with funds provided by the city’s Adult Probation Department, the Five Keys Charter School, and the California Wellness Foundation, a private, independent foundation that gives grants to promote wellness education. The money is used to provide the tablets and to digitize the educational materials needed to run the program.

San Francisco’s chief probation officer, Wendy Still, says a program like this will save taxpayer dollars in the long run and reduce recidivism.

“If we do not make this investment in tablets and tech in rehab programs, then [inmates] are going to continue committing crimes, which is very costly to the taxpayer,” Still said. 1

A Win-Win for Taxpayers, Police, and Prisoners

If one of the goals of our penal system is to rehabilitate prisoners so they do not become repeat offenders, then programs like San Francisco’s tablet program move us in the right direction. Research studies have shown that for every dollar invested in prisoner education programs, the costs of incarceration are reduced by four to five dollars during the first three years after an inmate’s release. 2 Programs like this have proven effective in reducing recidivism, as inmates who participate in these programs are 43% less likely to return to prison than inmates who do not. 3

Often, recently released prisoners commit crimes because they cannot adjust to the society that has changed while they were incarcerated. That adjustment process is more difficult when the rest of the world around them has a lengthy head start on adapting to new technology. How is a person who has never used the Internet going to apply to a job that only accepts online applications?

Though many inmates have heard about new forms of communication such as email and text messaging from friends and family, few have actual hands-on experience with them. 4 Programs like San Francisco’s can help inmates bridge the technological gap from incarceration to release, and will give them new skills to keep them from going back to the life that put them behind bars.

Share Your Feedback With Us

We at Wallin & Klarich would like to hear from you about this topic. Do you think that San Francisco’s program is a step in the right direction? Or do you think the taxpayers’ money would be better spent in a different way? What are some of the reasons you see that would make these laws a good or bad idea? Please feel free to leave your comments below.

1. [Lydia O’Connor, “The Device That Could Help Keep Former Inmates Out Of Jail For Good,” Huffington Post, October 28, 2014, available at]
2. [RAND Corporation, “Education and Vocational Training in Prisons Reduces Recidivism, Improves Job Outlook,” available at]
3. [Id.]
4. [Justine Sharrock, “The Internet Explained By Prisoners Who Have Never Seen It,” Buzzfeed News, August 29, 2013, available at]

California Ends “Gay Panic” Defense

November 12, 2014,

Defense attorneys can be a creative lot, and that has often led to a cynical view of the legal profession. In 1978, San Francisco Supervisor Dan White murdered Mayor George Moscone and fellow Supervisor Harvey Milk. White had been known to be a fitness fanatic, but prior to4577789974_a5f85fb2b4_o.jpg the killings, had become depressed. His defense team presented testimony from a doctor that his diet consisting of Twinkies and other junk foods was evidence of his depression. The court found that his depression diminished his capacity, and instead of murder, White was convicted of voluntary manslaughter. The public outrage that followed led to the defense becoming known as the “Twinkie defense.” 1

In 2013, a Texas judge sentenced a teenager to probation for drunk driving after he was involved in an accident that killed four people and injured 11 others. His lawyer convinced the judge that his teenage client suffered from “affluenza,” a condition that prevented the teen from understanding the consequences of his actions because he had been spoiled by his parents’ wealth and privilege. 2

The End of the “Gay Panic” Defense

California has decided to put an end to one of these “creative” defenses. The “gay panic” defense allowed a defendant to claim as a defense to murder or assault that an extreme fear of gay, lesbian, or transgender persons was to blame for their violent outburst.
Recently, Gov. Jerry Brown signed Assembly Bill 2501 into law, which amends California’s voluntary manslaughter law under California Penal Code Section 192. Voluntary manslaughter is also known as “adequate provocation” murder, meaning that it is the unlawful killing of a person during a sudden quarrel or heat of passion. In order for the defendant to not be convicted of murder, the defendant must have been provoked by the victim in a manner that would cause the average person in that situation to be unable to control their rage and think before acting.

In the past, “gay panic” was considered to be sufficient for the average person to become enraged and act violently. As of January 1, 2015, the new law eliminates this defense by stating that the defendant learning about the victim’s sexual orientation or gender identity is not a reasonable provocation, including in situations where the victim makes an unwanted sexual advance toward the defendant. The law also states that it does not matter whether the defendant and victim had any sort of previous sexual or romantic relationship. 3

In addition, the law defines gender as “a person’s gender identity and gender-related appearance and behavior regardless of whether that appearance or behavior is associated with the person’s gender as determined at birth.” 4 This is key to eliminating the “gay panic” defense in cases where the attack allegedly happens because the defendant discovered that the victim was a male by birth but a female by appearance, or vice versa.

What Is the Effect of Ending This Defense?

This law means that it is no longer considered acceptable or reasonable in California for a defendant to claim that he or she was provoked into violence after learning that someone else is gay, lesbian, or transgender. In other words, there are still many reasons persons could claim they were provoked into killing another person, but the victim’s gender identity or sexual orientation cannot justify this defense being successful.

Contact the Defense Attorneys at Wallin & Klarich to Learn More

Though the legal landscape is always changing, there are still many valid defenses available if you or someone you care about has been charged with a crime. That is why you need an 4%20partners%20hi%20res.jpg
experienced, aggressive, and creative attorney at your side to guide you through the legal system. At Wallin & Klarich, our attorneys have been successfully defending clients against criminal charges for more than 30 years. Let us help you, too. Contact us today for a free, no obligation consultation.

With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, there is a Wallin & Klarich attorney experienced in criminal law near you, no matter where you work or live.

Call us today at (888) 280-6839 for a free phone consultation. We will be there when you call.

1. []
2. [Dana Ford, “Texas teen Ethan Couch gets 10 years' probation for driving drunk, killing 4,”, December 12, 2013, available at]
3. [Cal. Pen. Code §192(f)(1): “For purposes of determining a sudden quarrel or head of passion… the provocation was not objectively reasonable if it resulted from the discovery of, knowledge about, or potential disclosure of the victim’s actual or perceived gender, gender identity, gender expression, or sexual orientation, including under circumstances in which the victim made an unwanted nonforcible romantic or sexual advance towards the defendant, or if the defendant and victim dated or had a romantic or sexual relationship.”]
4. [Cal. Pen. Code §192(f)(2). ]

The Consequences of Juvenile Sex Crime Charges in Orange County

November 10, 2014,

Given the proliferation in use of high-tech portable electronic devices as well as wider access to the Internet, it probably does not surprise many that a number of teens and even children experiment with sexuality at a much younger age. Of course, some of these acts may be considered perfectly normal or natural. It is important to remember, however, that juveniles in Orange County may be charged with serious crimes for acts they commit without even knowing or understanding that they are breaking the law. For example, a juvenile may be charged with distributing child pornography for sending out sexually suggestive images with a text or a "sext."

The Juvenile Justice System

Anyone who is 17 years old or younger is considered a "juvenile" in the eyes of the law. California's juvenile justice system is substantially different from the state's adult justice system. This is because society recognizes the importance of treating our youth differently than adults. The emphasis in the juvenile justice system is on treatment and rehabilitation. The adult justice system focuses on punishing offenders.

In the juvenile justice system, we also find the involvement of non-law-enforcement agencies such as schools, community-based organizations, counselors and social workers who provide a variety of services to juveniles who have committed crimes and youth who are at risk of committing crimes. Terms used in juvenile court are also different. Juveniles are not "tried" but "adjudicated." Juveniles are not "convicted." Rather, their petition is "sustained."

Juvenile Sex Crimes

A juvenile who has been accused of committing a sex crime in Orange County can be charged with a felony or a misdemeanor depending on the nature of the offense, the circumstances of the case and his or her prior criminal record. Violent crimes such as rape and sexual assault could be charged as felonies while other sex crimes such as distribution of pornography may be charged as a misdemeanor. Juveniles may be treated as adults depending on their age and nature of the crime as well. If this happens, the case will move to adult court where defendants are under greater media scrutiny and of course, face more severe punishments if convicted.

Categories of Juvenile Offenders

Informal probationers: These are juveniles who have committed minor offenses. They are placed on what is known as an "informal 654" probation. These juveniles are usually diverted into substance abuse, mental health, crisis shelters or other services.

Status offenders: Juveniles who have committed offenses that are unique to a juvenile such as violation of curfew or truancy can be placed on formal probation, but cannot be detained or incarcerated with criminal offenders.

Criminal offenders: Offenders under the age of 18 who commit a misdemeanor or a felony such as a sex crime will be placed on formal probation, sent to juvenile hall or incarcerated in a county ranch, camp or the Youth Authority.

Tried as adults: Any juvenile aged 16 or 17 who commits one of over 30 serious felonies or a juvenile aged 14 or older who commits murder will be tried in superior court as an adult. If convicted, the juvenile could even be sentenced to state prison, if he or she is 16 or older.

Contacting an Experienced Defense Lawyer

If your child has been arrested on suspicion of committing a sex offense in Orange County, it would be in your best interest to contact an experienced juvenile crimes defense attorney who will protect his or her rights and ensure that the case remains in juvenile court. You need the services of a defense lawyer who has trial experience and a successful track record. Your child's future and whether he or she gets that valuable second chance in life could depend on your choice of defense attorney.

The Devastating Ramifications of Having a Restraining Order Granted against You: Why You Need a Qualified Restraining Order Lawyer

November 7, 2014,

The consequences of having a California restraining order granted against you can be severe. If a restraining order is filed against you, it is of the utmost importance to retain the services of a qualified restraining order law firm to come to your defense. If you do not hire a law firm to defend you it is much more likely that the restraining order will be granted against you. If the restraining order is granted against you all of the following consequences may occur:

  • The restraining order will likely be filed with the California Law Enforcement Telecommunications System which means if a law enforcement officer stops you, the restraining order will show up on your record for up to 5 years.
  • If there is a restraining order violation you could face up to $1,000 in fines and up to one year in jail.
  • The restraining order can be enforced against you anywhere in the State of California by any law enforcement agency that canstockphoto10492514.jpg
    has been notified of your restraining order.
  • The court may order that you are excluded from your place of residence due to the granting of the restraining order.
  • Your ability to travel may be restricted.
  • You may be required to attend and complete a 52 week anger management or batterers program which is both time consuming and costly.
  • If the restraining order includes your minor children then this will impact the amount of time you can spend with your children and will likely mean your child support obligation will be increased.
  • You will have to immediately surrender any firearms that you own or that you may have in your possession.
  • If a domestic violence restraining order is violated the court may order that upon request, the person who receives the restraining order be allowed to tape record all conversations with the person who has the restraining order granted against them.

When facing a restraining order hearing you will want to have an experienced restraining order law firm fighting for you. There is too much at stake to go to court without an experienced Los Angeles restraining order defense attorney. If you decide to not retain a lawyer to help you will likely regret it for years to come.

Call Wallin & Klarich Today

Please feel free to contact Wallin & Klarich for a free consultation. The attorneys at Wallin & Klarich are available twenty-four hours a day, seven days a week to answer your questions. You can reach us at (888) 280-6839 or visit our website at for more information.

How Are Violent Crimes Punished in California?

November 5, 2014,

The Department of Justice considers four types of crimes to be violent crimes. These crimes are: Gen%2039.jpg

  • Murder
  • Aggravated assault
  • Rape
  • Robbery

If you have been charged with committing a violent crime, you need to contact an attorney immediately.

Sentence Enhancements for Violent Crimes

Sentences for violent crimes can be severe and it is important for you to be aware of your legal rights. Sometimes, the court can enhance your punishment if you are convicted of a violent crime.

The court will typically enhance sentences for crimes related to gang activity, firearms, or great bodily injury. Examples of sentencing enhancements can include:

  • If the victim suffers substantial bodily injury, you could face an additional three to six years in prison.
  • If the crime was done to help or benefit a gang, your sentence will be enhanced automatically by an additional 15 years to life in prison.
  • If you used a gun to commit a crime, you could face an additional ten years in prison.
  • If you fired a gun during the commission of a crime, you could face an additional twenty years in prison.
  • If you killed or injured someone with a gun, your sentence could be enhanced by an additional 25 years to life in prison.

Three Strikes Law Sentencing Enhancements

California also has a three strikes law. This sentencing structure imposes additional sentences on individuals who have been convicted of prior felonies.

The most serious sentence enhancement is an additional 25 years to life in prison for individuals who are convicted of three felonies for violent crimes. Your sentence can only be enhanced to the 25 to life sentence if all three of your felony convictions were for violent felonies.

Even when all three strikes are for non-violent crimes, there are some instances where the court can enhance your sentence by an additional 25 years to life in prison.

These punishments are severe and can negatively impact your life. If you or a loved one has been charged with a violent crime, it is imperative that you contact an attorney who will vigorously defend you in court.

For over thirty years, Wallin & Klarich has successfully represented clients charged with violent crimes. We understand that this is a very scary time for you and your family.

It’s time to protect your legal rights. You don’t want to spend the rest of your life in prison. Call Wallin & Klarich today at (888) 280-6839 to speak with one of our highly trained California criminal defense attorneys. We will be there when you call.

Leave Your Guns Unlocked in Your Home and Face Going to Jail

November 3, 2014,

Prior to legally purchasing a firearm in California, you must first abide by a series of rules and regulations. These guidelines were created to ensure that you act responsibly as a gun owner. Possessing a firearm may provide owners with a sense of security and well-being, but, as we know far too well, if a firearm is put into the wrong hands the outcome can be tragic.

A Los Angeles woman is learning this lesson the hard way as she becomes the first parent to be prosecuted for unsafely storing a firearm after her teenage son brought the gun to school. 1

LA Mother Faces Jail Time After Son Brings Gun to School

Last May, the son of 41-year-old Leah D. Wilcken allegedly brought a .45-caliber semiautomatic handgun with seven rounds of ammunition to Will Rogers High School in Van Nuys. 2 Once at school, Wilcken’s son showed the gun to a friend, who notified a school administrator who then informed the police.Brandishing%20a%20Weapon%20-%20California%20Gun%20Laws%20-%20PC%20417.jpg
Upon searching the student’s home the next day, police recovered a shotgun and four additional handguns. The guns, all unlocked and unsecured, were discovered in a dresser drawer, a kitchen cabinet and behind a dresser.

According to Los Angeles City Attorney Mike Feuer, an individual who improperly stores firearms can now face criminal charges if a child, a mentally ill person or a convicted felon obtains the gun and commits or plans to commit a harmful act against others. 3 Despite the fact that the firearms were all legally owned by Wilcken, as a result of her negligence she was charged with four criminal counts under California Penal Code Section 25200. 4 The charges, which include allowing a child to carry a firearm off the premises, allowing a child to take the firearm to school, endangering a child, and contributing to a child’s delinquency, each carry a one-year jail sentence and a $1,000 fine.

Wilcken’s son has also been charged as a juvenile for his actions.

What this Means for Gun Owners in California

Now more than ever, California prosecutors are cracking down on individuals who violate gun safety laws. This means that it is crucial for all gun owners in California to be up to date on the state’s latest rules and regulations – which can be found here. If you own a firearm, it is your responsibility to keep the firearm in a secure area where children (or anyone else that may not legally posses a gun) can not access the gun and cause harm to others or to themselves. If your guns are not properly secured, you run the risk of spending time behind bars and being forced to pay a series of hefty fines.

Call Wallin & Klarich Today

If you are accused of violating Penal Code 25200 or any gun law, it is in your best interest to hire an experienced criminal defense law firm to vigorously fight for you. At Wallin & Klarich, our attorneys will work around the clock to ensure that you have the best possible chance of winning your case. If you or a loved one is facing firearm charges, let us help.

With offices located in Los Angeles, Sherman Oaks, Torrance, Orange County, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, there is an experienced Wallin & Klarich criminal defense attorney available to help you no matter where you work or live.

Call us today at (888) 280-6839 for a free phone consultation. We will get through this together.

1. [Los Angeles Daily Journal – “Gun Storage Case Filed” - October 16, 2014 ]
2. [Id.]
3. [Id.]
4. []

How You Could Spend Months in Jail for a Crime You Didn’t Commit

October 31, 2014,

Imagine yourself riding as a passenger in a car. You decide to eat a can of SpaghettiOs for lunch. Not having a bowl with you, you eat the meal straight from the can, using a metal spoon you borrowed from a friend. Finishing your meal, you throw the can away, but hang on to the spoon as you ride back to your friend’s home.

Suddenly, the police pull the car over because the car’s taillight is out. They search the car, find the spoon in your bag, and seeing that it has some substance on it, decide to field test the spoon. The officer places you under arrest for possession of methamphetamine.

That is exactly what happened to 23-year-old Ashley Huff this past July. The police claimed that the SpaghettiO’s sauce on the spoon they found in her bag was used for meth. The officer stated in his report that he “found it strange that she would eat SpaghettiOs with a metal spoon while riding in a vehicle, and then put the spoon back in a bag.”

Three Months of a Legal Nightmare

jailed.jpgHuff spent the next two weeks in jail before being released on the condition that she attend a series of appointments with the court. When she missed one, she was arrested again and incarcerated. She was unable to afford the bond to be released, so she stayed in jail for seven weeks until the lab test proved what she had said all along.

“It was so stressful,” Huff, said. “Nobody believed me. I said I had SpaghettiOs on my spoon. Nobody believed that. Everybody thought it was hilarious, but that was exactly what it was.”1

Not having her own attorney, Huff seriously considered pleading guilty to a crime she knew she did not commit just to be released from jail. She missed her son’s birthday and lost her job as a result of being in jail. Huff’s public defender said, “You just get worn out, your spirit gets worn down … You reach a point where you’ll do anything just to get out of jail.”

The public defender speculated that the reason it took so long for the crime lab to confirm she was innocent was the sheer number of cases they have. In fact, he told the press that three months was a “quick” result.2

The Importance of a Good Legal Counsel

Huff’s case is an example of why it is critical to contact an experienced attorney as soon as possible if you are arrested. Having someone who can fight for you early in the process can help you stay out of jail before trial.

If you have to spend time in jail, a good criminal defense attorney can find ways to speed up the process so that you are not stuck waiting for a lab to get to your case on their own schedule. Your attorney can find ways to challenge the results of flawed field tests and find the holes in the officer’s version of the events leading to your arrest. The attorney can also walk you through your options so that you never have to consider pleading guilty to a crime you did not commit.

Contact the Defense Attorneys at Wallin & Klarich

A charge of possession or selling methamphetamine under California Health and Safety Code Section 11379 (HS 11379) is a serious accusation with potentially life-changing consequences. If you or someone you care about has been charged with possession of meth or any other controlled substance, you will need an experienced and aggressive attorney to help you with your case. At Wallin & Klarich, our attorneys have been successfully defending clients against drug-related charges for more than 30 years. Let us help you, too. Contact us today for a free, no obligation phone consultation.

With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, there is a Wallin & Klarich attorney experienced in drug laws near you no matter where you work or live.

Call us today at (888) 280-6839 so we can begin working on your case. We will be there when you call.

1. []
2. []

Lyrically Guilty, Factually Innocent?

October 29, 2014,

If we were to take music lyrics literally, we would have to believe that Eminem’s ex-wife is rapper.jpgsomewhere at the bottom of a lake. We would have to take it as fact that Johnny Cash shot a man in Reno just to watch him die. Of course, Bob Marley would have been charged for shooting the sheriff (but not the deputy).

As ridiculous as the notion of interpreting song lyrics as evidence of a crime may sound, it is actually part of a current debate in criminal law. In the past few years, song lyrics have become part of the evidence in several criminal cases. Last month, a Kansas judge ruled that rap lyrics written and performed by Phillip D. Cheatham, Jr., will not be heard by the jury in his double-murder retrial. The prosecution argued that the lyrics are a confession to the murders of two women. Cheatham’s lawyer argued that many artists use songs to tell fictional stories. 1

Another rapper from Virginia, Twain Gotti (birth name: Antwain Steward), was tried for the killing of two men. A song he wrote contains these lyrics: “But nobody saw when I [expletive] smoked him/Roped him, sharpened up the shank, then I poked him/ 357 Smith & Wesson beam scoped him.” Though he was acquitted of the murders, Steward is now serving 16 years in prison for weapons charges. 2

“Prejudicial or Probative?”

Ultimately, the question about whether lyrics could be evidence in a case depends on the judge. In both federal 3 and California 4 state courts, the judge has the discretion to exclude evidence if he or she finds it to be more prejudicial than probative. In other words, the judge decides if the evidence should be heard by the jury or whether it will waste time, confuse issues, mislead the jury, or unduly create a bias against the defendant.

This rule allows judges to prevent evidence from being introduced that is only designed to get an emotional reaction out of the jury, and would make it more difficult for them to fairly evaluate the evidence of the case.

“Our raps are documentary. We don't take sides.”

Those are the words of Ice Cube, one of the founding members of N.W.A., in an interview he did shortly after the release of the group’s record-breaking album, “Straight Outta Compton.” 5 Cube stated that the group’s edgy and controversial lyrics about violence, drugs, and corruption within police agencies were designed to expose people to life in the poorest neighborhoods of South Central Los Angeles and came from stories they heard.

“We use the same kind of language as the kids use every day. In the black community, the ministers and teachers don't deny that the problems we rap about exist, but they'd rather sweep it under the rug. Maybe that's why we sell so many records(…)”

The same is true of narcocorridos, which are enormously popular Latino folk songs about the violent world drug cartels. The stories told by the lyrics are often about brutal executions, kidnappings, and drug deals gone wrong.

“It is over the top and it's meant to be over the top," explains Elijah Wald, author of the 2002 book "Narcocorrido: A Journey into the Music of Drugs, Guns and Guerillas." "To some extent it's like the hyper violence in slasher movies where the fans are laughing and saying 'Oh my God, did you see that?''' 6

A Dangerous Precedent

Allowing song lyrics into a criminal prosecution could prove to be highly prejudicial to a defendant. Many of these songs are accounts of stories that the artist heard from someone else. In addition, the details of the events on which the lyrics are based are often exaggerated for shock value, and though some have a connection to reality, they are usually heavily fictionalized.

These facts alone make song lyrics unreliable accounts of events, and are more likely to anger a jury, making it impossible for them to look past the emotional impact of the lyrics and at the true facts of a case.

Contact the Defense Attorneys at Wallin & Klarich

If you or someone you care about has been charged with a crime, you will need an experienced and aggressive attorney to help you with your case. At Wallin & Klarich, our attorneys have been successfully defending clients accused of criminal activity for more than 30 years. Let us help you, too.

With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, there is an experienced Wallin & Klarich criminal defense attorney near you no matter where you work or live.

Call us today at (888) 280-6839 for a free phone consultation. We will be there when you call.

1. []
2. []
3. [Fed. R. Evid 403: “The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”]
4. [Cal. Evid. Code Section 352: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”]
5. [Mark Cooper, “NWA: 'Our raps are documentary. We don't take sides’'’, The Guardian, October 1989. The interview was republished on August 7, 2013, and is available at]
6. [ Deborah Hastings, “'Narcocorridos,' the popular Latin music styled after American hip hop, bring about bloodshed and Grammy wins,” New York Daily News, December 17, 2013, available at]

Should Smoking and Drinking While Pregnant Make You a Criminal?

October 27, 2014,

Should a woman face criminal prosecution for child abuse if she smokes, uses drugs, or drinkssmoking%20wiki.jpg during pregnancy? That is the debate that many states have wrestled with for decades. For example, in the case of Cornelia Whitner, South Carolina’s Supreme Court ruled that she could be criminally liable for using cocaine during her pregnancy. 1 However, the court’s ruling did not stop at the use of illegal drugs. The court stated that the rule would apply to both legal and illegal substances, meaning that a pregnant woman in South Carolina could be charged with child abuse for smoking a cigarette or drinking a glass of wine.

Other states have followed this line of thinking. Tennessee has a law that makes it a misdemeanor to drink or use illegal drugs during pregnancy if the child is born addicted to those substances. 2 Hawaii has considered laws making it a felony for endangering the welfare of a minor to consume alcohol or drugs during pregnancy. In addition, Arizona, Florida, Georgia, New York, Massachusetts, and Nevada are all states where prosecutors have tried unsuccessfully to secure convictions for pregnant women under similar charges. 3

California’s Approach to Child Abuse Crimes

Child abuse crimes in California generally fall under two broad categories: physical abuse and child endangerment. Physical abuse crimes under California Penal Code Section 273(d) require willful infliction of cruel punishment and/or an injury to a child that causes a traumatic condition, and the action was not part of a reasonable punishment of the child. 4

Under Penal Code Section 273(a), a person could be guilty of child endangerment if they cause or permit a child to suffer unjustifiable physical pain or mental suffering; willfully cause or permit a child in their care to be injured; or willfully cause or permit a child to be placed in a dangerous situation. 5 If a woman were to be charged because she smoked tobacco, drank alcohol, or used illegal drugs while pregnant, it would likely be for causing a child to be placed in a dangerous situation, which does not require any actual injury to the child. Placing a child in a situation where harm is probable is enough under 273(a).

Treatment, Not Trial

If the state were to prosecute pregnant women, it would criminalize some behaviors that are otherwise legal and punish women for crimes for which no male could ever be convicted. However, California’s approach has not been to punish women for addictive behavior while pregnant. Instead, in 2012, the California legislature changed Health and Safety Code Section 11757.59 to provide funding for treatment programs designed to help pregnant women and new mothers resolve problems with addiction to alcohol or other drugs.

By not criminalizing this type of action, California is taking the right approach. Emphasizing treatment instead prosecution avoids the problem of scaring off women who would be afraid to go to a doctor for medical care during pregnancy or from seeking treatment for these addictions while pregnant. It allows women who struggle with addiction to have access to these programs when they need it most without fear of being arrested, and could reduce the chances that their child will be born with severe health problems. Most importantly, California’s approach reduces the chance that a woman with an addiction to alcohol, tobacco, or other drugs would turn to abortion as a means to avoid prosecution.

Share Your Feedback With Us

We at Wallin & Klarich would like to hear from you about this topic. Do you agree with California’s policy of not prosecuting women for smoking, using drugs, or drinking while pregnant? What are some of the reasons you see that would make this either a good or bad idea? Please feel free to leave your comments below.

1. [Whitner v. State, 328 S.C. 1, 492 S.E.2d 777 (1997)]
2. []
4. [Cal. Pen. Code §273(d).]
5. [Cal. Pen. Code §273(a).]

Should Public Shaming Be Part of Punishment for Prostitution Crimes?

October 24, 2014,

Life in the Massachusetts Bay Colony was a strange one for crime and punishment. In thoseScarletA.jpg days, the Puritans considered it a criminal offense to cheat on one’s spouse. One of that crime’s punishments was made famous by the Nathanial Hawthorne novel, The Scarlet Letter. The convicted person would be forced to wear a large, scarlet-colored “A” on their clothing, which told anyone in sight of the convicted person that he or she had committed adultery.

Fast-forward almost 400 years later to life in the city of Anaheim. On September 23, the City Council unanimously approved an ordinance that would give the scarlet letter punishment a modern twist. If a person is arrested, charged, and convicted of soliciting a prostitute, his or her name will be posted on a list that the city will publish online. Since 2011, 187 arrests have been made for prostitution in Anaheim. Those arrests include all players in the crime: pimps, prostitutes, and clients (or “johns”).

Public Shaming: Punishing People for Being Lonely

The public shaming of johns is nothing new. Last year, the Orange County District Attorney’s Office began posting a list of people convicted of prostitution on its website, and it distributes the list to local news media. Anaheim is the only city in the county that handles its own misdemeanor prosecutions, and the new ordinance will bring the city in line with the rest of the county on this issue.

What is different is that Anaheim officials have made it clear that the only people targeted by this policy are the customers. The sex workers will remain anonymous, but the guy or gal who made the mistake of hiring a prostitute will get to see their name in the newspaper and posted online. Not only will they see it, but so will their family, friends, employers, ministers, and anyone else who cares to take a look.

One of the central ideas behind our criminal justice system that we celebrate is that it gives good people who make a mistake a second chance. They pay their debt to society, then move forward with their lives and put the past behind them. Publishing the names of people who are convicted of prostitution – something that the Orange County Register does not consider a good idea 1 – places that past under a spotlight, where it remains long after the price for the crime has been paid.

Scarlet letters are relics of the past. The City of Anaheim and Orange County ought to consider leaving this punishment to the confines of history.

Share Your Feedback with Us

We at Wallin & Klarich would like to hear from you about this topic. Should Anaheim and Orange County continue to publish the names of people convicted for soliciting prostitutes, or is this a punishment that goes beyond the crime? What are some of the reasons you see that would make this either a good or bad idea? Please feel free to leave your comments below.

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Can a Man Use Self Defense Against a Woman in a Domestic Violence Case?

October 20, 2014,

What happens if you are forced to defend yourself against your domestic partner and she callsSelf%20Defense.jpg the police on you? Is self defense a legal justification for the use of force, even if you’re a man and your domestic partner is a woman? In California, the answer is yes.

California prosecutes domestic violence aggressively, but the violent party isn’t always a man. The law recognizes that women can be guilty of domestic violence, and if you are in fear of imminent bodily harm or of being unlawfully touched, you can use force to defend yourself.

If you are forced to defend yourself against your wife or girlfriend’s physical assault, and she then calls the police on you, you can assert that you acted in self defense.

What Elements Constitute Self Defense in California?

According to California Criminal Jury instructions (CALCRIM 3470) 1 use of force is justified if

  • You reasonably believed you were in immediate danger of being injured or touched unlawfully
  • Immediate use of force was necessary to defend yourself, and
  • You didn’t use more force than was necessary to defend yourself from the attack.

Further, if you’ve been threatened or harmed by your domestic partner in the past, you may be justified in acting quicker and with more force to ward off another attack.

I Was Taught that a Man is Not Supposed to Hit a Woman

It’s true that it is always a better option to leave before an argument gets violent, whether you are arguing with a woman or a man. But once somebody threatens you with violence, you have a right to stand your ground and defend yourself until the danger has passed, even if you also have an opportunity to retreat.

What Happens if the Other Party is Injured?

If you were in imminent danger and you acted in self defense, it’s possible that your spouse will be left with a bruise or other injury. If you used reasonable force to defend yourself, self defense is justifiable even if she sustains an injury. A jury may consider any or all of the following:

  • What she did to threaten you or put you in fear of harm
  • How much force was necessary to ward off the attack
  • Whether she has a violent history

What if I was Defending Someone Else?

If another person, like a guest in your home or one of your kids, was in imminent danger of attack from your domestic partner, you have a right to use force to defend them. The same rules apply as if you were defending yourself.

Call the Criminal Defense Attorneys at Wallin & Klarich Today

If you or a loved one has been charged with domestic violence, you need to talk to an experienced criminal defense attorney immediately. At Wallin & Klarich, our attorneys have over 30 years of experience successfully defending people facing domestic violence charges.

With offices located in Los Angeles, Sherman Oaks, Torrance, Orange County, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, there is an experienced Wallin & Klarich criminal defense attorney available to help you no matter where you work or live.

Call us today at (877) 4-NO-JAIL or (877) 466-5425 for a free phone consultation. We will be there when you call.

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