Southern California Defense Blog

A recent decision of the Court of Appeals held that a defendant was wrongfully accused of possession of methamphetamines, a felony. The substance was found on a nightstand in a bedroom that the accused shared with his girlfriend. The District Attorney did not present any evidence to prove that the defendant knew the substance was methamphetamines. The defendant denied he knew the substance was a drug of any kind. The defendant was found guilty by the jury.

The Court of Appeals ruled that an accused cannot be found guilty of the crime merely because the drugs are found in a room he sleeps in. There must be evidence to proof he knew the substance was illegal.

In many cases drugs are found in a car that is occupied by a driver and many passengers. The police often arrest many or all of the occupants of the vehicle. It is very important your lawyer know the law and these recent case. It can be the difference between you being found guilty or not guilty of the crime.

If you find yourself arrested of a drug offense you need to speak to an experienced criminal defense firm who can help you protect your legal rights. Feel free to call Wallin and Klarich at 888-280-6839. We can make the difference between jail and freedom.

A recent opinion by the United States Court of Appeals for the Sixth Circuit recently addressed this issue. Warshack v. United States (6th Cir. Dkt. 06-4092, 6/18/2007).

In this case, the US government was investigating Mr. Warshack for suspected mail and wire fraud, money laundering, and other federal crimes and they wanted to obtain Mr. Warshack’s stored e-mails from his internet service provider.

Typically, before government investigators can obtain personal information from a person, they are required, by the Fourth Amendment to the US Constitution, to obtain a search warrant from a judge. A judge is only permitted to issue a search warrant when the government can demonstrate “probable cause” to believe that what the government wants to search will reveal evidence of a crime. In 1986, however, Congress passed the “Stored Communications Act” (18 U.S.C. §§ 2701-2712) (SCA). The SCA outlines how the government may go about obtaining “electronic communications” (such as e-mails) in a “remote storage service” (such as an internet service provider (ISP) e-mail account). The SCA gives the government the option of either obtaining a search warrant, or obtaining a court order for disclosure of the communications. The government does not have to demonstrate “probable cause” to obtain a court order (they can obtain a court order based on less than “probable cause”), but they must give the holder of the account notice of their intent to obtain the order and an opportunity to appear in court and oppose the disclosure of the records to the government. Like much else in the law, there is an exception to the rule requiring advance notice to the account holder. This exception allows the government to delay giving notice to the account holder where the government shows that, if notice is given, the account holder might destroy evidence, or physically harm or kill another person or flee or otherwise jeopardize the government’s investigation of the case. The SCA allows the government to delay giving notice for 90 days, with the ability to seek extensions if required.

Continue reading "HOW EASY SHOULD IT BE FOR YOUR UNCLE (YOUR UNCLE SAM THAT IS) TO SNOOP THROUGH YOUR E-MAIL ACCOUNT?" »

The US Supreme Court’s recent opinion in Morse v. Frederick brings to the forefront how far a public school may properly go in restricting student speech.

In this case, Joseph Frederick was a student at a public high school in Juneau, Alaska, and, on January 24, 2002, the Olympic torch was due to pass in front of Mr. Frederick’s high school, en route to the winter games in Salt Lake City, Utah. Students at the school were permitted by school officials to stand on the sidewalk outside the school to watch the torch relay, which took place during regular school hours. As the torch neared the school, Mr. Frederick, and other students, unfurled a 14 foot banner that read “BONG HITS 4 JESUS.” Principal Deborah Morse saw the sign, which was visible to other students lining the sidewalks on either side of the street in front of the school, and approached Mr. Frederick and the other students and instructed them to take the banner down. The other students complied, but Mr. Frederick did not. Mr. Frederick was summoned to Ms. Morse’s office and suspended for 10 days from school. Ms. Morse stated that she acted consistent with a school policy that expressly forbids students from advocating “the use of substances that are illegal to minors.”

The first issue the Court addressed was whether the activity was a “school activity,” thereby permitting Ms. Morse to apply school rules to Mr. Frederick’s conduct. The Court had no difficulty in determining that the activity was a school activity, given the fact that the students were assembled during the school day and were supervised in the activity by school officials.

Continue reading "US SUPREME COURT: “JUST SAY ‘NO’” TO “BONG HITS 4 JESUS” " »

Anybody who has not been hiding under a rock lately has heard about the legal troubles facing a certain high profile professional athlete and his purported involvement in Dog Fighting. The legal problems facing Michael Vick stem greatly from the participation across state lines in betting on, “sponsoring” and even hosting dog fighting events. Nobody knows exactly what this athlete’s involvement was in these accusations, and until the court process runs its course we’ll all just have to sit back and watch it unfold.

However; have you ever wondered how California feels about this practice? What possible punishment might you face? And how involved do you really need to be to get in trouble? Let’s just say, the law is pretty broad. In a word the practice is illegal, even if all the activities remain exclusively in California, never crossing any state lines.

For instance, if you host, bet, wager, receive a bet or wager, or even pretend to bet or wager, or lets say you attend an event and your friend asks you to hold money that he has bet on the event, you have committed a crime. If you maintain facilities used primarily for purposes of hosting these events such as a shed, or a fighting pit, or a filing cabinet filled with records, or maintain records in your home of transactions processed at these events, paperwork, or even dog kennels you could be at risk for arrest. Even if you are simply an owner of a home that is being used by someone else living there to host these dog fighting events, you can be arrested and prosecuted with either a misdemeanor or a felony.

Continue reading "How does California feel about Dog Fighting?" »

In a recent serious case handled by Wallin and Klarich, the police reports had one independent witness providing very incriminating evidence against our client. We realized that if this witness were to come to court and state the things that the police officer recorded in his report it would likely lead to his conviction. Wallin and Klarich did what we had to do to win the case. We immediately jumped into action and sent two of our staff to interview this witness.

When we interviewed this witness, we found out that what the witness would testify to was NOT what was stated in the police report. Often we find that police officers record things in their report that are not accurate and are often adverse to our client’s position. In fact this witness said things very favorable to our case.

We subpoenaed this witness to testify on the day of trial. We also taped the interview we had with the witness. We then transcribed the interview. On the day set for trial, we told the prosecutor that the police report was in error. We then told the prosecutor he could read the statement we had taken. The prosecutor read the statement and then asked to speak to the witness who we had made sure was in court. After the prosecutor spoke to this key witness he realized the police report was in error. This resulted in the charges being dismissed against our client.

Continue reading "A Key Witness Leads to Court Victory" »

A defendant was found guilty of beating his elderly grandfather to death in 2005. The defendant was sentenced to prison for life. A California Court of Appeal has reversed his conviction and granted him a new trial on the basis that the prosecution failed to turn over a tape recording made of the defendant when he was arrested.

It appears that the defendant’s trial lawyer did not seek discovery of this tape. The court of appeals held that the DA’s office had an obligation to turn the tape over to the defendant even absent a formal request. The defendant’s appellate lawyer successfully convinced the court of appeal that if the jury had heard this tape recording it could have resulted in a different verdict.

The lawyer that you hire to defend you has to aggressively seek all possible discoveries from the prosecution. You need a law firm like Wallin & Klarich on your side that has tremendous experience in filing all necessary motions. Our firm will make sure all the evidence is received from the prosecution to allow us to properly defend you. If you would like a consultation with an experienced Wallin & Klarich lawyer contact us at 888-280-6839. We can make the difference between jail and freedom.

In many criminal cases the difference between winning and losing has little to do with the truth. In most cases, it has much more to do with who the lawyers who are representing the parties. Often whether a defendant is found guilty or not guilty depends upon which side was able to present the best set of facts to the jury. This all starts with which lawyer will be doing their homework and research to be ready for the trial.

Investigation of the facts of every criminal case is the key to success. When you select a lawyer you need to determine if that lawyer is willing to look into the facts of your case thoroughly before offering you an opinion on the strength and weaknesses of your case. Many people when they first call a criminal defense attorney want an immediate answer to the key question: “Can you win my case?”

However, in reality no lawyer should be willing to give you an answer to that important question until they have done a complete review of the facts of your case. As part of that review, a lawyer must work with a highly skilled investigator to make sure that the defense can bring forth all of the witnesses that can help you win your trial. The failure of your lawyer to fully investigate your case can lead to you being found guilty in a case when you should have been found not guilty. It is a vital part of your case.

Continue reading "Investigation Is the Key to Success in Most Criminal Cases – Who You Have as Your Lawyer Can Make the Difference" »

It is thought by many people that a person who is accused of crime is entitled to a lawyer if they cannot afford one. Unfortunately this is not always the case.

If you are under investigation for a crime, you are not entitled to have a lawyer appointed for you.
If you are asked to take part in a line up where you are a possible suspect and you have not been formally charged, you are not entitled to have a lawyer appointed to you.
If you are in custody and have been arrested but have not yet appeared in court, then you are not entitled to have a lawyer appointed to you.

It is critical to protect your legal rights. You must have a lawyer working on your case when you are first being investigated for a crime. It is almost never a good decision to speak to a lawyer about the accusations at any time. This means that it is very important you retain the services of a private lawyer as soon as you become aware you may be charged with a crime. Often a lawyer can assist you with the location of a reputable bail bondsman who can work to have you or your loved one released from custody.

Please feel free to contact Wallin and Klarich when you first become aware you are being investigated for a crime. People who wait to consult with an experienced criminal defense firm until it is too late often regret that decision. You can reach us at 888-280-6839.

A parolee that is arrested for a parole violation will have a “parole hold” placed on him or her at the time of arrest. This parole hold makes it so the parolee cannot be bailed out of custody.

If the parolee is arrested for a NEW CRIME, it is best to have the parolee waive his right to a speedy probable cause hearing until the court case is disposed of. The parolee will need to sign a waiver and when the new case is complete, you contact the board of prison terms and speak with the person in charge of setting the hearings and ask to schedule the hearing.

If the criminal case was won or dismissed, this is good evidence; however, the burden of proof for a criminal case is beyond a reasonable doubt. In a parolee hearing it is a preponderance of the evidence (or a tip of the scale). So, just because the criminal case is dismissed or a not guilty verdict is returned, the parolee is still not guaranteed that the parole charges will be dismissed.

If the parolee was convicted of the new case or pled guilty, most any defense attorney will know to make sure to ask that the time is ran concurrent with any parole violation. Then when you call to schedule the probable cause hearing and get a date for that hearing, you will speak with the Commissioner conducting the hearing and let them know what time they received the new crime. With a new conviction, it is almost guaranteed that the parolee will receive a 1 year sentence and it will be run concurrent to the conviction sentence. But if the new crime the parolee pled to was a misdemeanor and he or she received less than 1 year, depending on the circumstances at the probable cause hearing, you may want to set it for a revocation hearing if you are not able to get the Commissioner to give the parolee something less than 1 year. (ie. The same time they received on the misdemeanor charge).

Continue reading "WHAT YOUN NEED TO KNOW IF YOU ARE FACING A PAROLE VIOLATION - YOU HAVE THE RIGHT TO HIRE YOUR OWN LAWYER" »

In the state of California, it is against the law for minors to have sex with each other or for anyone to have sex with a minor. This law is true even though nearly 50 percent of high school students have reported that they have already had sexual intercourse.

The laws that make it illegal for minors to consent to sexual intercourse are called statutory rape laws. Under these laws no minor can consent to sexual intercourse and the act itself is considered rape even if the minors are in love and enter freely into the sexual relationship. The penalty for breaking this law varies based on the age of the victim and the person who committed the crime.

Continue reading "WHAT DO I DO IF I AM ACCUSED OF STATUTORY RAPE OR UNLAWFUL SEX WITH A MINOR? " »

In a recent survey taken, nearly half of all high school students have reported that they have tried alcohol at one point or another in their lives. Although many underage teens and children drink, the legal age to drink and purchase alcohol in the state of California is 21. In some instances, people who are under the age of 21 are not even allowed to be in places that serve alcohol, with some exceptions applying.

It is also illegal to supply anyone under the age of 21 with alcohol. Parents who supply alcohol are held criminally liable for contributing to the delinquency of a minor. If the underage drinker is involved in a traffic collision, the parent or guardian who supplied the alcohol could face a misdemeanor charge and receive up to a year in jail and a $1,000 fine.

Continue reading "WHAT WILL HAPPEN IF I AM ACCUSED OF MINOR IN POSSESSION OF ALCOHOL? (MIP)" »

Prosecutors in Orange County charge more YOUTHS AS ADULTS using their discretionary power than those in any other county (according to the most recent data provided by the California attorney general—157 between 2003 and 2005).

When compared proportionally to felony juvenile arrests, Orange County stands out even more: It has the highest proportional use of the “direct file” law among the state’s 15 largest counties. Orange County prosecuted teens as adults nine times as often as Los Angeles.

Before Proposition 21 when California minors could first be sent to adult court, they had to go through a fitness hearing in juvenile court. A judge would take into account their criminal sophistication, delinquent history, and likelihood of rehabilitation.

Continue reading "PROPOSITON 21 - DA DIRECT FILING CASES" »

Just the other day, I ran a motion to suppress evidence in a drug related matter. The Detective testified that he was investigating the defendant for the potential sale of drugs. He testified that he was investigating a male Hispanic for this matter, but the police report indicated that he was investigating a male Caucasian. He finished his testimony and sat back down in his chair.

Then Police Officer took the stand and testified that he was investigating a male Caucasian involved in a prostitution case, but he approached a male Hispanic subject. Once that came out, the people moved to dismiss. Enough said. You make the inference.

Continue reading "Racial Profiling in the Buena Park Police Department" »

There are a couple of ways that an unwed father can establish legal paternity to get custody and visitation of his child through the court system. Even when there is no dispute as to biological paternity, legal paternity must be established.

When an unmarried woman gives birth to a child the woman and the man can reach an agreement that the man is the father of the child.

The natural father can also establish paternity by executing a voluntary declaration of paternity. Once this document is filed with the State Department of Child Support Services (DCSS) it establishes the legal paternity of a child and has the same effect as a judgment for legal paternity issued by a court of competent jurisdiction. By doing this, the father then has a basis for requesting child custody, visitation and/or child support.

Continue reading "Can a father of a child get custody when he has never been married to the mother of the child?" »

The rapid increase in the use of the Internet by people of all walks of life in the past decade has led to a steady increase in Internet crimes. Law enforcement agencies take Internet related crimes very seriously and go to great lengths to lure potential offenders.

Internet service providers are willing to work with law enforcement to make sure their on-line users do not facilitate crimes such as child exploitation and pornography, adult pornography, computer hacking and forms of child molesting or annoying minors. As such there are many “sting” operations within law enforcement agencies that attempt to lure curious on-line customers into chat rooms, to promote sending and downloading picture files and of course seek out potentially interested on-line users to meet persons they have spoken to over the web and carry out illegal activity.

The first crime law enforcement attempts to solicit is the passing of Obscene Material, which is found in C.P.C. § 311. This statute applies to all possessing and publishing for sale or distribution of sexual conduct by a minor. This statute was updated in 1999 to include storing images on hardware, software or any storage medium including CD-ROMS and any printing of a computer generated image.

Another popular law for law enforcement is the Sexual Exploitation of Minors found under C.P.C. § 311.3. This law is slightly different in that the defendant has to duplicate, develop, print or exchange an image or photo showing a minor engaging in an act of sexual conduct. This charge is aimed at the user rather than the distributor.

Continue reading "What Kinds of Crimes Can Be Committed On The INTERNET?" »

The popularity of the internet has grown and continues to grow among young people today as the internet can be used for a number of different resources ranging from talking with friends online to researching papers for school. A recent study found that 2 out of 3 preschoolers have already used a computer in their lives and have been on the internet. Although the internet may open new doors to many children, it may also expose them to unwanted sexual material and solicitation. Nearly 1 in 7 children ranging in age from 10-17 have received a sexual solicitation while online, and an even higher number have received unwanted sexual material while on the internet. It is important to know your rights and what is legal and illegal while on the internet.

It is against the law for any adult to send sexually explicit or obscene material to a minor while on the internet. It is also against the law for an adult to try and seduce a minor or arrange a meeting while online. Even if the adult does not show up to the arranged meeting, they can still be convicted of a misdemeanor and serve up to a year in prison. If the meeting does take place, an adult can serve up to four years in jail for online enticement.

The best way to prevent your children from being exposed to the dangers online is to monitor their activity while on the internet and make sure that they are visiting only safe, protected websites that you know about and have visited.

If you have any questions about laws regarding the internet or think we might be able to help you, please call Wallin & Klarich at 888-280-6839.

It is important to understand HEARSAY evidence and its relevance at probation and parole violation hearings.

PAROLE revocation and PROBATION revocation after the imposition of a sentence are constitutionally indistinguishable. Parole and probation revocation is NOT part of a criminal prosecution and therefore not all of the rights due a defendant in a criminal procedure apply.

However, due process does require that a defendant at a probation revocation hearing be afforded, at a minimum, certain rights including, the right to confront and cross-examine adverse witnesses.

The well-trained and well-respected attorneys at Wallin & Klarich understand when and how to object to adverse hearsay evidence.

The Habeas PetitionA petition for habeas corpus asks that a court issue a writ, requiring that the prisoner be produced before the court at a particular place, date and time.

In its original use, a petition for habeas corpus was filed to request that the custodian of a prisoner be ordered to bring a prisoner to a county court to testify in a legal matter. This use of a petition for habeas corpus still exists, where a prisoner is in the custody of another county or penal system, and the prisoner's presence is required for a legal proceeding. Typically, a prisoner will be transported to the local jurisdiction by the local Sheriff's department, which will be responsible for guarding the prisoner during court proceedings and returning the prisoner to the other jurisdiction at the conclusion of the proceedings.

However, when most people think of a writ of habeas corpus, they have something more significant in mind - a petition demanding that the custodian of a prisoner explain in court the lawful basis upon which the prisoner has been detained. This type of writ is generally considered to be an "extraordinary remedy", meaning that the prisoner has exhausted all other avenues of relief or appeal, and no other adequate remedy remains. A writ of habeas corpus may seek relief on grounds not available on direct appeal. It is this second meaning which is discussed in this article.

Continue reading "Get A Loved One Out of Jail…File A WRIT OF HABEAS CORPUS:" »

Depositions can be used to impeach a witness, to refresh the recollection of a witness, to serve as a past recollection recorded, to act as an admission or statement of a party, and to operate as evidence of a witness’ former testimony.

The deposition of a party to the action is admissible for any purpose when it is offered by an opposing party, subject to the standard objection of relevancy, competency and etc. The court however, may not allow cumulative portions to be read. Keep in mind that depositions are inadmissible as a whole unless they fall within a hearsay exception or non-hearsay (see above paragraph). The objections that are usually prevalent in depositions are “vague and ambiguous” (as to time place, manner or as to the question as a whole); “argumentative”; “leading”; “asked and answered or cumulative”; “constitutional objections” (ie: right to privacy); “speculative”; and “competence”. Some of said objections and almost all other objections may be reserved for trial irrespective of whether or not the questions were objected to or not during the deposition.

Depositions are costly, but they serve as great discovery tools. So spend the extra money on a deposition to dig up the dirt on your adversary prior to trial. Chances are that you’ll find yourself in a better position to negotiate during settlement talks and better armed during trial times.

At the end of an evidentiary or argumentative hearing, the judge makes a final decision with findings and makes court orders. As you have probably noticed, sometimes these hearings can be confusing, tense, and even chaotic, with people talking over one another.

When this happens, it is easy for the parties, the lawyers, and even the judge to lose themselves in the conversation. When a judge gives orders in this type of atmosphere, it can be sometimes difficult to know what it is precisely that the judge ordered. Sometimes judges give orders along with recommendations. When this happens, again, it can be difficult to know what has been ordered, and what has been merely recommended to a party by a judge. Sometimes people don’t know what the judge ordered simply because they weren’t paying attention or because they didn’t write it down and just forgot.

Continue reading "What if the Court Makes an Order and Nobody Knows it?" »

You might know that California law prohibits convicted felons from possessing or owning firearms. California Penal Code Section 12021 makes it illegal to possess a firearm in California for any person who has previously been convicted of any Felony offense in California. That prohibition is for life.

But, I’ll bet you did not know that same law makes it illegal to possess a firearm for a period of ten (10) years if you have been convicted of any of the following Misdemeanors:

Continue reading "FIREARMS AND THE LAW" »