Southern California Defense Blog

California law is complex. Sometimes something seems so simple that you would think the answer is obvious. However, even legal issues which seem simple may have to wind their way through the entire judicial process before the seemingly simple interpretation of the law is made. By this I mean that sometimes you have to be prepared to “go all the way”.

Most people think that “all the way” means all the way to trial. However, we can see from a recent case decided in the Court of Appeal for the Fifth Appellate District that what the appeals court found simple the trial court got completely wrong.

Defendant Tommy Gastello was convicted of bringing drugs into a jail. The Appellate Court said his case presents one question: Is an accused guilty of bringing drugs into jail if he or she entered the jail only due to being arrested and brought there in custody? The answer has to be no. That would seem obvious – right?! Not to the trial court.

California Penal Code Section 4573 makes it a Felony to bring drugs into a jail or prison facility or to assist in doing so.

Continue reading "The Importance of Seeing a Case Through to the End" »

Posted by Wallin & Klarich | Permalink | Email This Post

Posted In: Law & Information

Bookmark:

As Paris Hilton recently found out the hard way, being placed on probation in lieu of jail time does not mean that you “got off scott-free.” Many people assume that when they are convicted of a misdemeanor or felony and they are not sentenced to serve any jail time (or just a few days in jail) that they got off easy and can continue to do as they please. However, this is not the case!

Before we go any further, I am going to go over what I mean by the term probation. Webster’s Dictionary defines the word probation as, “A sentencing alternative to imprisonment in which the court releases convicted defendants under supervision as long as certain conditions are observed.” Now there are several different forms of probation in the Criminal Justice System, but I am talking about formal and informal probation. In general terms, formal probation refers to when you are placed on probation and must report to a probation officer (if not in custody). Meanwhile, informal probation or summary probation refers to court supervised probation, meaning you do not have to report to a probation officer.

Probation is considered a privilege and not a right. Thus, everyone is not entitled to be placed on probation in lieu of jail or prison time. If you are placed on probation, you are given several terms and/or guidelines to follow. If you do not follow the terms of your probation, you can be in violation of your probation, your probation can be terminated, and you can be sentenced to the statutory maximum amount of jail and/or prison time. This is the concept that numerous people gloss over and/or do not understand and that can be very problematic!

Continue reading "Probation Does Not Give You a Free Pass" »

Posted by Wallin & Klarich | Permalink | Email This Post

Posted In: Probation

Bookmark:

My law firm may be able to assist you in stopping your sex registration requirement under California Penal Code section 290. There are many people in California that have been registering as a sex offender for cases that were 5-10-20-30 years ago. A substantial portion of them are absolutely no risk to anyone and yet, are still required to register as a sex offender in the city where there live. Wallin and Klarich may be able to help in getting a Certificate of Rehabilitation or seeking a Governor’s Pardon. These remedies may relieve your obligation from registering by establishing that you have rehabilitated yourself and are now a productive member of society.

If you are currently registering as a sex offender and you are currently off probation or parole, I urge you to call me so we can discuss your specific situation. The time may have come to stop the non-sense of having to register on old crimes that occurred years ago.

Stephen Klarich
Partner
Wallin and Klarich
June 15, 2007

Posted by Wallin & Klarich | Permalink | Email This Post

Posted In: Sex Offenses

Bookmark:

If you’ve committed a crime in California, the District Attorney or local Prosecutor have several available options designed to punish you for your actions. These options range from placing you on probation, ordering you to pay a fine, requiring you to complete classes including: anger management, alcohol or substance abuse classes, or traffic school, among others, depending on the nature of your offense.

In more serious cases, the District Attorney can order you to complete a specified period of time in jail. I’m certain Paris Hilton is not the only person who does not want to be confined in a jail cell. Just because the District Attorney wants you to complete jail time, does not mean that is what will ultimately happen to you. There are many better, less burdensome, and far less scary alternatives to serving time in jail to pay for your actions. Among these alternatives are performing community service, performing work for the California Department of Transportation by picking up trash in parks, on beaches, and the side of the roadways throughout California. In some cases you can spend time in a rehabilitation facility if your offense involved alcohol or drugs. If the Prosecutor insists on you spending time in jail, your attorney can negotiate to have you serve the time on weekends, so you can continue to work and provide for your family. Many counties also offer private pay to stay facilities that will allow you to leave each day and return each night after you have completed your work day. Also, electronic monitoring or home confinement are available options to jail time. Or, if money you have and time you do not, your attorney might be able to negotiate a heavy fine in exchange for jail time.

All of these options are not available in every case, but there are other options depending on which county you live in and what programs or facilities they offer. Contact a local attorney who knows what alternatives to jail are available so you can work on a plan to keep you out!

Posted by Wallin & Klarich | Permalink | Email This Post

Posted In: Law & Information

Bookmark:

Have you been arrested or issued a citation after an encounter with a Police Officer? Are you uncertain as to what you should do next? Are you completely unfamiliar with how a criminal case proceeds? There are plenty of things you should do, but one thing you absolutely should NOT do is wait! You need to act fast. First, contact a criminal defense attorney in the area. Getting an attorney in place to represent you as early as possible is crucial. By hiring an attorney early, not the day before your court date, the Attorney can make plans and be proactive in defending your case. If you are low on money and are not sure if you can afford an attorney, many will work with you on making payments towards the total fee.

Infractions/Misdemeanors and Felonies

There are 3 types of cases in the world of criminal law: Infractions, Misdemeanors, and Felonies. An infraction is something akin to a speeding ticket, or for running through a stop sign. However, there are also many others including disturbing the peace, or driving without a license which may have more serious consequences come the court date. With an infraction, you are not facing the potential of jail time. There is no right to a trial by jury, instead the judge will decide everything after a court trial.

Misdemeanors carry a possible jail sentence. The most amount of jail time you can receive for a misdemeanor arrest is 1 year in your local county jail. Many misdemeanors carry a maximum punishment of 6 months in jail and/or a monetary fine.

Continue reading "Anatomy of a Criminal Case" »

Posted by Wallin & Klarich | Permalink | Email This Post

Posted In: Law & Information

Bookmark:

Police officers are entitled to stop and detain an individual for investigation, when the police officer has REASONABLE SUSPICION to believe that criminal activity may be afoot and the individual may be connected to such activity. To justify a STOP AND FRISK the officers do NOT need PROBABLE CAUSE. These “STOPS” should be relatively short, noninvasive, and place-specific.

There are several exceptions to the normal framework of REASONABLE SUSPICION. These include: ordering passengers of a car after stopping the driver, detaining at DUI checkpoints regardless of having any individualized suspicion they are breaking the law, and expanding the normal limited scope of detentions at international borders.

Once an officer validly STOPS someone for an investigative detention, this does NOT automatically enable the officer to “FRISK” or pat down the individual. The officer must have an articulable basis for thinking the person may be armed and dangerous. Only upon this basis can an officer engage in a limited search of the outer clothing.

It is often difficult to determine whether a STOP AND FRISK was in fact valid. If you have any questions or concerns immediately contact an experienced California criminal defense lawyer at Wallin & Klarich at (877) 4-NO-JAIL for more information.

Posted by Wallin & Klarich | Permalink | Email This Post

Posted In: Law & Information

Bookmark:

The police must advise suspects of their "Miranda Rights" - their right to remain silent, their right to an attorney, and the right to an appointed attorney if they are unable to afford counsel - prior to conducting a custodial interrogation. If a suspect is not in police custody (i.e., "under arrest"), the police do not have to warn him of his rights.

The police are very aware of when they have to read suspects their "Miranda Rights." The police will frequently question a suspect, specifically telling the suspect, "You are not under arrest, and are free to go. However, we would like you to answer some questions." After the suspect voluntarily answers questions, and sometimes if he refuses, he is arrested. The questioning, being voluntary and non-custodial, is usually admissible. After arrest, the police may have no interest in further questioning, and thus may not ever read the suspect his "Miranda Rights."

If The Police Don't Read Me My Rights, Can They Still Use My Statement?

Sometimes, a suspect will make voluntary statements after he is arrested. The police do not have to warn suspects not to make voluntary statements, as long as they do not deliberately try to elicit those statements through statements or conduct. Sometimes, suspects will express their surprise at being caught by the police, with statements to the effect of, "You got me." At other times, suspects will try to justify their actions to the police after they are arrested, with statements such as, "I don't know why I did it," or, "The drugs weren't mine - I was carrying them for a friend." Those statements, if made spontaneously by a suspect, will almost always be admissible in court. Additionally, if a statement leads to the discovery of other evidence, even if the statement itself was taken in violation of the Miranda ruling the police may be able to use that evidence.

Can My Silence Be Used Against Me In Court?

When a person chooses to remain silent after receiving his Miranda warnings, that silence cannot be used against him in court. However, if a person has not received his Miranda warnings, and remains silent, it is possible for that "pre-Miranda" silence to be used against him. For example, if a person is arrested for murder, or is told that he is a suspect, a typical innocent person will express disbelief and may even try to present an alibi. It would be unusual for a person to simply remain silent, after being informed that he is being wrongfully charged with murder - even people who know their right to remain silent will often express surprise. A prosecutor may subsequently argue that the "pre-Miranda" silence resulted from the fact that the defendant was not surprised that the police "figured it out."

Continue reading "When Should The Police Read Me My Miranda Rights? " »

Posted by Wallin & Klarich | Permalink | Email This Post

Posted In: Law & Information

Bookmark:

We are a nation of laws. You would think that if you are convicted of doing the identical crime anywhere in California, you would serve the same amount of jail time. Unfortunately that is not the case when it comes to crimes committed in Los Angeles County in most cases.

In most counties, such as Orange, Ventura, Riverside, San Bernardino and San Diego Counties if you are sentenced to one year in county jail you will do two thirds of the jail sentence. This means you will end up doing 240 days on a one year sentence. However, if you receive a jail sentence of one year in Los Angeles County, it is most often the case for various reasons that the actual time you serve in custody will be a very small percentage of the one year sentence.

Our law office has represented several clients facing criminal charges in Los Angeles County who were accused of very serious felonies and we were able to have their sentence reduced from a possible state prison sentence to a one year sentence in Los Angeles County Jail. However, our clients did not end up actually doing two thirds of the time (as they would have in most every other county in California). In one case our client was released after serving only 19 actual days on a one year sentence.

There is a large public outcry over the fact that Paris Hilton was released on a 45 day sentence after serving only a few days. This decision in Los Angeles County is not a unique one. In fact on a daily basis in Los Angeles County our clients’ jail sentences are being reduced drastically due to jail overcrowding. It is not unusual for a client ordered by a judge in Los Angeles County to serve 90 days to actually be released from jail after serving less than 20% of their jail sentence.

Continue reading "WHERE YOU DO THE CRIME WILL LIKELY DETERMINE IF YOU DO THE JAIL TIME!!!" »

Posted by Wallin & Klarich | Permalink | Email This Post

Posted In: Law & Information

Bookmark:

Ever heard of the saying “if you don’t have anything nice to say, don’t say anything at all.”?
Well, in the realm of being questioned by a police officer, the saying goes like this: “shut up, shut up, shut up.”

If you ever find yourself in that not so desired position of being a “suspect” or an “interested party” in any type of criminal activity, exercise your right to remain silent, and ask for an attorney.

You know you’ve heard the phrase a million times before, “anything you say, can and will be used against you” – guess what – it’s true.

In most situations, the officer will be very nice, and try to calm you into complacency and make you trust him or her. He or she is on your side, they want to help get you out of this, and they want to prove your innocence. This is hardly ever the case, and you should always err on the side of caution and assume that it is NEVER the case.

If you are an interested party and they have enough to arrest you – they will – whether you talk to them or not. By giving them a full blown confession, you’ve in effect guaranteed your arrest, as well as crippled any defense you may have had.

The only person you can trust in the criminal justice system is your attorney. He or she has a duty to defend you, and to look out for your best interest. So if you ever find yourself in a “sticky” situation, the only words that should come out of your mouth are: “I want to speak to an attorney.”

If you find yourself in this situation you will need the assistance of an experienced California criminal defense lawyer, call Wallin & Klarich for assistance.

Posted by Wallin & Klarich | Permalink | Email This Post

Posted In: Law & Information

Bookmark:

Has the court already issued an order regarding child support and custody? Have things changed in your life making you want to make a change to the court order? It may surprise you to learn that child custody and support orders are not final!

Child support orders are modifiable at any time as the court deems necessary. Courts will revise a child support order if there has been a material change of circumstances. The court makes this determination on a case by case basis. Reasons for modification include: a substantial increase in either parents earnings; a substantial decrease in income due to job change; substantial change in custodial arrangements; amount of time child spends with each parent; specific needs of the child; and a parents medical condition

In addition, child custody and visitation orders are modifiable throughout the child’s minority whenever the court finds that the modification is necessary and proper in the child’s best interests. A party seeking modification of a permanent custody order can do so with the showing of a significant change of circumstances so affecting the child that modification is essential to the child’s welfare.

At the law offices of Wallin & Klarich we have more than 30 years of experience helping our California clients in this complicated area. If you need more information and would like the assistance of a Wallin & Klarich California family law attorney please free to contact us at any time.

Posted by Wallin & Klarich | Permalink | Email This Post

Posted In: Child Custody Issues

Bookmark:

Have you ever been at the mall in the department store and saw a pair of sunglasses that you really wanted but you didn’t have the money to purchase them? So you put them into your shopping bag and walked out of the store. However, as you were approaching your car, a loss prevention officer stops you, the police are called, and you are arrested on suspicion of petty theft (484 PC). You think to yourself, I am not a criminal. I have no criminal record and I just acted on impulse. I did not go into the store contemplating stealing. I cannot afford to have a misdemeanor (or felony) conviction on my record.

If you have a story similar to this, believe it or not, you are not alone. Thousands of people in California are picked up on suspicion of shoplifting each year.

So you say to yourself, “what options do I have?” I am caught on camera stealing and they found the merchandise right in my bag. Well, at Wallin & Klarich, our California criminal defense attorneys are very familiar with these types of stories and have handled numerous of these types of cases. Our attorneys have helped clients avoid felony and misdemeanor theft convictions, even when clients have been caught “red-handed.”

This is because there are alternatives! First, there is a possibility that the offense can be reduced down to an infraction, where only a fine is required. There is also a possibility of getting a Civil Compromise. Under this scenario, the criminal case against you is considered “Civilly compromised” pursuant to PC 1377-1378 and you will end up with zero conviction on your record. Lastly, there is also a possibility that you may be able to take a “shoplifting class” and upon proof of completion of the class, have your case dismissed without a conviction!

It varies from court to court as to how your shoplifting case might end up. However, a lot of it has to do with how well versed and creative your attorney is in sentencing alternatives and how well he knows the particular court, the Judges, the District Attorneys, and/or the City Attorneys. At Wallin & Klarich you can be confident that you will get the best possible representation and receive the best possible outcome to your shoplifting case or any other possible criminal case that you might have pending.

Posted by Wallin & Klarich | Permalink | Email This Post

Posted In: Theft & Shoplifting

Bookmark:

In January of this year, the United States Supreme Court entered a decision declaring part of California’s felony sentencing structure unconstitutional. (Cunningham v. California)

Before going into the how and why, it might be good to give a short background on how California sentences people convicted of felony crimes. Most people convicted of felony crimes in California are subject to the “Determinate Sentencing Law,” meaning that the judge will impose a determinate or definite sentence, as opposed to an indeterminate or indefinite sentence. For instance, in a determinate sentence case, the law will provide for three possible terms of imprisonment – a lower term, a middle term, and an upper term. As an example, anyone convicted of a felony assault with a deadly weapon charge could be sentenced to state prison for either 2, 3, or 4 years. Here, 2 years is the lower term, 3 is the middle, and 4 is the upper.

In an indeterminate sentence case, the law provides that the person will serve an unspecified period of time with the prison officials being given discretion to decide how long to actually hold the person. For instance, anyone convicted of second degree murder can be sentenced to state prison for 15 years to life. In such a case, the person must do at least 15 years before becoming eligible for release on parole; however, it would be up to the prison as to when after 15 years it might release the person. Put simply, the prison must hold the person for 15 years and can either release the person at the end of 15 years, or hold the person for as long as they deem appropriate after that – possibly even deciding to never release the person.

Continue reading "US SUPREME COURT STRIKES DOWN PART OF CALIFORNIA SENTENCING LAW" »

Posted by Wallin & Klarich | Permalink | Email This Post

Posted In: Law & Information

Bookmark:

There is a misconception that almost all drug cases are eligible for diversion through Penal Code 1000 and Proposition 36. Although it is possible to divert these offenses by completing certain drug classes and by subjecting yourself to random testing by the probation department, you will not be eligible for diversion if the offense is coupled with driving under the influence.

If charged with possession of narcotics and Driving Under the Influence, you may get the mandatory minimum (90 days) in jail. Keep in mind however, that the 90 days is only a guideline. The court or the district attorney has the discretion to impose more jail time.

What to do when encountered with this type of dilemma? Hire an attorney and retain the best experts to help you to retest the blood or urine sample. Hundreds of cases have been dismissed as a result of retesting. Reliable experts may be able to testify that the amount or residue of drugs in your system was not sufficient to impair your driving skills. Such testimony may not only be admissible in courts, but it could also save your driver’s license.

Posted by Wallin & Klarich | Permalink | Email This Post

Posted In: DUI & Drunk Driving , Drug Offenses

Bookmark:

When Parents Are Not Physically Capable of Looking After the Child

When parents are incapable of looking after their children, the courts will likely appoint guardians pursuant to the Probate Code. Usually the probate court will order a 1513 investigation wherein the proposed guardian’s home will be investigated. In addition, the proposed guardian will also be interviewed by a probation officer as to his/her experiences with the child.

The investigator may then file a report with the court and make recommendations concerning each proposed guardianship. The report will include a social history of the guardian, a social history of the proposed ward (child), the relationship between the proposed ward and the proposed guardian (ie: attitude, duration of relationship, ward’s developmental condition, physical, or emotional condition), the stability of the guardian, the relationship between guardian and natural parents. The court will then review said report and make a finding pursuant to the report’s recommendations.

Posted by Wallin & Klarich | Permalink | Email This Post

Posted In: Child Custody Issues

Bookmark:

My dog died today. We found him dead at lunch time. To compound things I found out right before leaving the office that I needed to be in two places at the same time right after lunch. I was scheduled for Court in Ventura at 1:30 p.m. and got a call that the DA was filing on another client in the Juvenile Court over in Oxnard and setting the hearing for 1:30 p.m. No big deal I had my Assistant call the Ventura Court and tell them I would be running late.

But there I was – I was supposed to be having lunch – but instead my dog was dead – my wife was emotional – okay my wife was hysterical! - and I had to go back to work and I still needed some lunch (when I say I NEEDED SOME LUNCH – I mean it – I am diabetic and must eat regularly in order to keep my blood sugar level.)

So I wrapped up my dog so the wife wouldn’t have to – I managed to force down a sandwich – kissed my wife and gave her a big hug – and headed off to Court – of course on the way I broke down and cried like a baby remembering my dog – his name is Dillon.

When I got to court and got out of my car I could feel something – I can only describe it as a feeling of professionalism – it totally took over my mind and body – I went from being a bowl of Jell-0 to being an attorney again. My mind focused on the task at hand and as I entered the courthouse nobody else could tell there was an emotional volcano inside me.

Fortunately I beat the client to court and had time to speak with the Bailiff, clerk and DA before the client arrived. The client was of course emotional because his son was being held in custody and we were there to try and get the judge to release the son. He also believed the police and prosecutor were out to get his son and I needed to calm him down before he spoke to the judge. The DA was objecting and we needed to focus on what we would say to convince the judge.

Continue reading "Day in the Life of a Lawyer" »

Posted by Wallin & Klarich | Permalink | Email This Post

Posted In: Law & Information

Bookmark:

Through out the past years, factors in move away cases have been added and deleted from the court’s laundry list. Unless the move is prompted by absolute circumstances (ie: military move away), the court would like to ascertain the following:

1. Is there a detriment established by the distance of move (will the child’s relationship with non-moving parent be impaired as a result of the move)?
2. Where is the best support system or structure for the child (where are more family members based/located)? And
3. What is the child’s preference? (Does she want to live with Dad or Mom and where?) And
i. Is the child mature enough to express her wishes?
ii. Whether amicable relationship exists between child and Mom and child and Dad?

Continue reading "Move Away Cases and Children" »

Posted by Wallin & Klarich | Permalink | Email This Post

Posted In: Child Custody Issues

Bookmark:

Many people were shocked to hear that Paris Hilton’s jail sentence was changed. It was altered from 45 days of actual jail time to time served in jail (4 days) plus the balance of her 45 day “jail sentence” to be served watching TV and sitting by her pool in her million dollar mansion (home incarceration).

However, with the right law firm a person’s jail sentence can be altered to something other than doing hard time or it can be reduced drastically in most cases.

Over the last 25 years, our law firm has arranged for our clients all of the following alternatives to jail time.

l. Community Work Service - Our clients are often allowed to do volunteer work for a worthy cause such as a battered women’s shelter, Red Cross or senior citizen center to avoid jail time.

2. Work Release - Often our clients are allowed to go to their place of employment and receive “day for day credit” as if they were doing all of their time in a jail cell.

3. Drug and Alcohol Programs – Usually we are able to have our clients do their jail time in a drug or alcohol program in lieu of actual jail time for drug and alcohol related charges.

4. Home Confinement - In some cases our clients are allowed to do their jail time while at home. During home confinement, the incarcerated must wear a tracking bracelet and is not able to leave their residence except for pre-approved extenuating circumstances.

There are many other creative ways to alter, reduce or eliminate the possible sentence in a case where you are facing jail time.

If you have a question about how we might be able to help you with your case, please call Wallin & Klarich at 877-4NO-JAIL. We can make the difference between jail and freedom.

Posted by Wallin & Klarich | Permalink | Email This Post

Posted In: Law & Information

Bookmark:

Here are some examples on how you should exercise this GOLDEN RULE:

Officer Q: Can I search your car?
A: No

Officer Q: Can I search your pockets?
A: No

Officer Q: Can I search your house?
A: No

You get the point? Always, under any and all circumstances, just say NO.

The law says that ANY search conducted WITHOUT a Search Warrant is presumed ILLEGAL. Which means, generally speaking, if an officer or agent of the government seizes something of yours as a result of a search which he didn’t have a warrant for, it can’t be used against you. Now, of course, like any other area of the law, there are loopholes, more like “loop-valleys” filled with a hundred and one exceptions – but I won’t boggle you down with those. (That’s why you hire an attorney.) All you need to know is say NO. Because if the day comes, and you said yes, when none of these one-hundred-and-one exceptions applied, you just lost any chance you had of getting the evidence kicked out. Why? Because you gave up your right to privacy, when you gave the officer consent to search you.

Continue reading "JUST SAY NO TO SEARCHES" »

Posted by Wallin & Klarich | Permalink | Email This Post

Posted In: Law & Information

Bookmark:

In today’s society, it is becoming ever more common that children are raised by parents who live separate and apart. Add to that the drastically rising cost of living in many Southern California areas and you are left with many parents who want to move to another area and take their child or children with them against the will of the other parent. This type of case in Family Law has now come to be known as a “move away” case.

What follows is a brief summary of the state of “move away” law and what we can do to help you if you and your family are in the midst of such a case.

Ordinarily when one parent has sole custody of a child and wants to move, the burden is on the party objecting to the move to show the Court that such a move would be detrimental to the child, a fairly difficult thing to do and given that the party who wants to move in those