Southern California Defense Blog

According to TMZ, officials have begun investigation into the extortion claims by Mel Gibson against his ex-girlfriend Oksana Grigorieva. Gibson claims that he has hard evidence of Grigorieva trying to extort him for money with the threat of releasing the audio recordings of a phone conversation between the two. The audio recordings may have indicated that Gibson committed domestic violence by punching Grigorieva and knocking out two of her teeth. Gibson is alleging that Grigorieva threatened to release the audio recordings if Gibson did not agree to pay her a sum of money.

Under California Penal Code Section 518-519, extortion is the obtaining of property from another, with his consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right.

Fear, such as will constitute extortion, may be induced by a threat, either:
1. To do an unlawful injury to the person or property of the individual threatened or of a third person; or,
2. To accuse the individual threatened, or any relative of his, or member of his family, of any crime; or,
3. To expose, or to impute to him or them any deformity, disgrace or crime; or,
4. To expose any secret affecting him or them.

Every person who extorts any money or other property from another, under circumstances not amounting to robbery or carjacking, by means of force, or any threat, shall be punished by imprisonment in the state prison for two, three or four years. See California Penal Code Section 520.

Attempting to extort money or other property from another is also a crime and considered to be a “wobbler.” This means that the prosecution has discretion to charge the crime as a misdemeanor or a felony. A misdemeanor conviction is punishable by imprisonment in county jail for up to one year. A felony conviction is punishable by up to three years in state prison. A fine can also be issued for up to ten thousand dollars ($10,000). See California Penal Code Section 524.

If you or a loved one is facing a charge for extortion, it is important that you speak with an experienced extortion attorney. At Wallin & Klarich, our Southern California extortion attorneys have over 30 years of experience. We will aggressively fight to get you the best possible result. Call us today at (888) 280-6839 or contact us through our website at www.wklaw.com. We will be there when you call.

Continue reading "Mel Gibson Claims he has Hard Evidence of Ex-Girlfriend Extortion – California Penal Code Section 518" »

On July 30, 2010, a defendant was sentenced for intentionally vomiting on a Philadelphia Phillies fan and his 15-year-old daughter at Citizens Bank Park in Philadelphia. The defendant was sentenced to one to three months in jail, community service, and ordered to pay $315, the cost of the tickets for the fan and his family.

The incident occurred on April 14, 2010, at a game between the Phillies and the Washington Nationals. Michael Vangelo, an off-duty police captain, brought his four daughters to the game. During the game, the defendant, Matthew Clemens, and his friend heckled, spilled beer, and spit on Vangelo and his family. Vangelo complained to security and Clemmens’ friend was ejected from the stadium.

According to the prosecutor, Clemmens then answered his cellphone and said, “I need to do what I need to do. I’m going to get sick.” He stuck several fingers in his mouth and vomited on Vangelo, with some of the vomit hitting one of Vangelo’s daughters.

In California, under Penal Code section 240, simple assault is an intentional and unlawful attempt to create a reasonably imminent fear of harmful or offensive touching of another person. The attempted touching does not have to be direct, it can occur through the perpetrator’s willful manipulation of events that leads to touching. Simple assault is a misdemeanor punishable by a fine and up to six months in jail. (California Penal Code section 241(a).)

Under California Penal Code section 415, “disturbing the peace” occurs when a person unlawfully fights another in a public place, intentionally and maliciously disturbs someone with loud and unreasonable noise, or who provokes another person with offensive words that would reasonably provoke a violent response. “Disturbing the peace” is a misdemeanor punishable by a fine and up to 90 days in jail.

Under California Penal Code section 647(f), a person who is drunk in public and who cannot reasonably care for his own safety or for the safety of those around him is guilty of public intoxication. Public intoxication is a misdemeanor punishable by a fine and up to six months in jail.

If you or someone you know has been accused of a crime, you will need an experienced Southern California defense attorney who will aggressively defend you to obtain the best possible result. At Wallin & Klarich, we have helped people accused of assault and disorderly conduct-type crimes for over 30 years. Call us at (888) 764-2615 or visit our website at www.wklawdui.com. We will be there when you call.

According to the OC Register, a 22-yesar old Huntington Beach man was arrested on suspicion of assault with a deadly weapon. A fight allegedly broke out in downtown Huntington Beach that resulted in a man getting stabbed in the chest. The victim’s injuries were not life threatening.

Assault with a deadly weapon is a serious crime. Under California Penal Code 245, any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for up to one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment. This crime is also considered a “serious felony” and will result in the defendant having a strike on his or her criminal record under the California “Three Strikes Law.”

If you or a loved one is facing a charge of assault with a deadly weapon, it is important that you speak with an experienced assault with a deadly weapon attorney. At Wallin & Klarich, our Orange County assault with a deadly weapon attorneys have over 30 years of experience. Our attorneys will fight to keep you out of jail and defend your rights. Call us today at (888) 280-6839 or contact us through our website at www.wklaw.com. We will be there when you call.

It was recently reported in the OC Register that the so-called “ho hum bandit” is alleged to have robbed an Orange County Bank. The “ho hum bandit,” nicknamed for having bland features, is suspected of robbing five San Diego banks. In the latest alleged incident, the robbery occurred in Corona Del Mar. The man gave a teller at the bank a note that demanded money. He received the money and left. Investigations are ongoing.
In California, robbery is the taking of property from another person by the use of force or intimidation. The type of fear needed is fear of injury to the victim, the victim’s family, or someone situated nearby the victim. It also includes fear of injury to any property of any of those people. There are different types of robberies. Robbery of the first degree is punishable by up to nine years in prison. Robbery of the second degree is punishable by up to five years in state prison. Robbery also qualifies as a strike within the meaning of California’s Three Strikes Law.

The prosecution can also charge the “ho hum bandit” with burglary. Under California Penal Code Section 459, burglary is committed when a person who enters a building with the intent to commit a felony. Being convicted of burglary can be punishable by imprisonment in state prison for up to six years and is also considered a strike under the California Three Strikes Law.

If you or a loved one is facing a charge of robbery or burglary, it is important that you speak with an experienced criminal defense attorney. At Wallin & Klarich, our Orange County theft attorneys have over 30 years of experience. We will help you fight the charges and guide you through the criminal court process. Call us today at (888) 280-6839 or contact us through our website at www.wklaw.com. We will be there when you call.

You must know that in California the claim of ineffective assistance of counsel may be asserted as the basis of your motion for a new trial pursuant to Penal Code section 1181. When the trial court failed to conduct any inquiry at all into the basis for your motion for a new trial, your conviction must be revered unless the record shows beyond a reasonable doubt that further inquiry into your claim would not have led to a different result in your case. As such, you will need to hire an experienced criminal law attorney who will carefully examine the records of your criminal case to make sure that you are entitled for your conviction to be reversed on appeal.

In a hearing on a motion for a new trial based on incompetence of a trial counsel, the trial court has to ask questions to the defendant in order to fully understand his or her reasons for believing that such claim is valid. However, a judge cannot simply avoid conducting such inquiry because you could have made such request at a later date, or that this issue might have been reviewed by an appellate lawyer assigned to you by the court. Rather, there are two basic principles you have to keep in mind. If you claim is based upon acts or omissions that occurred at trial or the effect of which may be evaluated by what occurred at trial, the court may rule on the motion for a new trial without substituting new counsel. If, on the other hand, the claim of incompetence relates to acts or omissions that did not occur at trial or the judge cannot evaluate your claim by what occurred at trial, then, the court must determine whether to substitute new counsel to develop the claim of incompetence. Under either of the two scenarios, the court has an affirmative duty to elicit details regarding the strength of your claim. If the court has failed to do so in your case, you might seek reversal of your criminal conviction based on prejudicial error committed by the court.

Our firm has over 30 years of experience in criminal appeals matters and has been recognized as an AV rated law firm. We have the legal knowledge and the resources to ensure that your rights and liberty are protected. Please call us at (888) 749-0034 or visit our website at www.wklaw.com. We will be there when you call.

The usage of DNA evidence has been in the media lately because of the arrest of the alleged Grim Sleeper. In that case, the police found the alleged serial killer’s DNA from a discarded pizza slice and was able to track him down using a familial DNA search.

California voters approved the state DNA program by passing Proposition 69 in 2004. The law required that people arrested for a felony must provide DNA samples to be stored in a criminal database accessible to law enforcement agencies. The DNA sample must be submitted even before they are convicted.

ACLU filed a challenge to the law last year in federal court, contending that the Fourth Amendment’s guarantee against unreasonable search and seizure bars mandatory DNA testing of individuals arrested of a felony, without suspicion or warrant, before being convicted. The ACLU is appealing the denial of a preliminary injunction to halt the enforcement of the law.

Lawyers for Attorney General Jerry Brown struggled to persuade a federal appellate panel that felony arrestees should be forced to give DNA samples as required by the enacted law.

Circuit precedent seems to be against this law. In Friedman v. Boucher, 580 F. 3rd 847, a case out of Nevada which held that extraction of DNA from an arrestee, done to generate cold hits in a DNA databank, violates the 4th Amendment.

The collection of DNA samples can be highly controversial because of the potential constitutional violations. If you or a loved one was arrested and a DNA sample was taken from you, it is important to speak with an experienced DNA attorney. At Wallin & Klarich, our Southern California DNA attorneys have years of experience in DNA evidence. We have been defending the criminally accused for over 30 years. Call us today at (888) 280-6839 or contact us through our website at www.wklaw.com. We will be there when you call.

If a person is granted probation for a domestic violence crime, California Penal Code Section 1203.097 lists the conditions of probation that must be given. The list below shows some of the conditions that may have a significant impact on a person’s life:
1. A minimum period of probation of 36 months
2. A criminal court protective order protecting the victim from further acts of violence, threats, stalking, sexual abuse, and harassment, and, if appropriate, containing residence exclusion or stay-away conditions
3. Notice to the victim of the disposition of the case
4. Successful completion of a 52 week batterer’s program
5. The court also shall order the defendant to perform a specified amount of appropriate community service, as designated by the court

These are only a few of the mandatory conditions of probation for a domestic violence crime. Under California Family Code Section 6211, the mandatory conditions of probation include crimes where the victim is a spouse or former spouse, a cohabitant or former cohabitant, a person with whom the defendant is having or has had a dating or engagement relationship, a person with whom the respondent has had a child, a child of a party, any other person related by kinship.

If you or a loved one is facing a charge of domestic violence, it is important that you speak with an experienced domestic violence attorney. At Wallin & Klarich, our Southern California domestic violence attorneys have over 30 years of experience. We will aggressively fight to get you the best possible result. We will inform you of the penalty you are facing and the conditions of probation that could be given. Call us today at (888) 280-6839 or contact us through our website at www.wklawdomesticviolence.com. We will be there when you call.

Child custody orders are given when a couple is going through a separation or divorce. The child custody orders are designed to determine who will take care of the children and who will make decisions for the children. The courts may decide that a type of joint child custody would be in the best interest of the child or children.

California Family Code Section 3004 states, “Joint physical custody means that each of the parents shall have significant periods of physical custody. Joint physical custody shall be shared by the parents in such a way so as to assure a child of frequent and continuing contact with both parents...”

California Family Code Section 3003 states, "Joint legal custody means that both parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child.”

The court may order “Joint Custody” which, according to California Family Code Section 3002, means both parents will have both joint legal and joint physical custody. This is the most common scenario in child custody cases because most parents who enjoy some time with their children, including visitation periods, should share in the decision-making as related to legal custody.

Contact our San Diego Family Law attorneys at Wallin and Klarich to help you in your child custody case. Our San Diego Family Law attorneys have the experience and expertise you will need to help you and your children. Contact us today.

In criminal law, there are many charges in the various codes that are known as “wobblers”. A wobbler is a statute that can be treated both as a felony or misdemeanor. The sentence for a wobbler will indicate that the section is punishable by jail or prison. Depending on the District Attorney’s discretion, a case can be filed either as a felony or misdemeanor. The difference to the defendant, can be enormous. A conviction for certain codes sections can have a significant impact for life.

An example of a wobbler is Penal Code Section 245(a)(1) assault with a deadly weapon other than firearm or assault with force likely to produce great bodily injury on a person, which is known as felony assault. This is also known as a strike if there is a weapon that was used in the assault. However, if a car was used as the weapon of assault and the defendant get convicted of this crime, the defendant along with any other potential consequences of the crime, will also lose his or her license to drive a motor vehicle for life.

Under California Vehicle Code section 13351.5;
(a) Upon receipt of a duly certified abstract of the record of any court showing that a person has been convicted of a felony for a violation of Section 245 of the Penal Code and that a vehicle was found by the court to constitute the deadly weapon or instrument used to commit that offense, the department immediately shall revoke the privilege of that person to drive a motor vehicle.
(b) The department shall not reinstate a privilege revoked under subdivision (a) under any circumstances.
(c) Notwithstanding subdivision (b), the department shall terminate any revocation order issued under this section on or after January 1, 1995, for a misdemeanor conviction of violating Section 245 of the Penal Code.

Even if the District Attorney decides to file the case as a felony, an experienced criminal defense attorney, may make a motion under Penal Code Section 17(b), before the outcome of the case has been decided, to reduce the charges to misdemeanors. However, after a conviction, if the defendant was given probation (instead of being sent to state prison), the defendant can apply to get your felony conviction reduced to a misdemeanor. Most criminal court judges are inclined to reduce a prior felony conviction if the defendant has successfully completed probation.

If you or someone you love has been accused of a crime in California, contact the experienced Southern California criminal defense attorneys at Wallin & Klarich today at 1-888-280-6839 or www.wklaw.com for a consultation of your case. We can help you.

Evaluations can be helpful and necessary in many types of dependency cases. In any written evaluation report, the evaluator describes the methods used and the reasoning for conclusions and recommendations. The specific purpose of the evaluation will dictate what type of assessment methods and what type of professional is necessary. A mental health, psychiatric or psychological evaluation addresses an individuals’ mental and emotional status, provides diagnostic information and makes appropriate recommendations.

A comprehensive child welfare evaluation should include more than a psychiatric or psychological evaluation of each party. In a dependency proceeding, the attorney must review the qualifications of the evaluator. The attorney should determine what type of expert conducted the evaluation and how much expertise that expert has in that specific area of child welfare. The evaluator needs to consider the emotional status of the persons being evaluated.

For mental health evaluations they can be forensic of clinic. Forensic evaluations are intended to a legal issue or question, while clinical assessments are most relevant for treatment needs and planning. To fully understand the needs of the child, the mental health evaluator should focus on things including but not limited to the need for services targeted toward a specific diagnosis of mental illness, substance abuse treatment, or the potential need for psychiatric medication.

Psychiatric and psychological evaluations frequently contain the DSM diagnosis number. The DSM number sets for fives axes on which the individual is to be evaluated. They are (1) clinical syndromes (for example depression, anxiety, psychosis and substance abuse), (2) personality disorders and specific developmental disorders (for example, borderline personality disorder), (3) physical disorders and conditions, (4) severity of psycho-social stressors, and (5) highest level of functioning past year. Those conditions on Axis 1 and 2 require treatment by mental health professionals.

Evaluations of a parent-child relationship are complex and require specialized expertise. These evaluations should include direct observation of parent and child interactions, commonly in natural surroundings, and a consideration of strengths and weaknesses. This type of evaluation should asses the relationships among the relevant adult parties and the child, the needs of the child, and the abilities of the parents or other caregivers to meet those needs. The evaluation should focus on reciprocal relationship behaviors between adult and child on many levels including parental warmth and control, the ability to read child cues appropriately, and child responsivity to the parent. The parent also has to demonstrate the ability to adequately provide for a child’s basic needs and safety.

A skilled Southern California family law attorney at Wallin & Klarich can help you through the dependency evaluation process. Contact our Southern California family law firm today by calling 888-749-7428 or visit us on our website at www.wkfamilylaw.com. We will be there when you call.

According to the LA Times, Lindsay Lohan surrendered herself today and has been booked in county jail. Lohan was sentenced to 90 days in jail after violating the terms of her probation from her DUI conviction by failing to attend the required alcohol classes.

Due to the overcrowding at Los Angeles County Jails, Lohan will most likely not have to serve the entire 90 day term. It is unspecified as to how much time Lohan must serve, but it is probable that she will only be required to serve 30% of the sentence. This means that Lohan is likely to serve approximately 25 to 30 days in jail.

It is important to complete the terms of probation. The prosecutor in the case stated, "The message to the public is don't drink and drive. If you do drink and drive and you're punished for it, complete the programs." However, you may be able to use the crowded jails to your advantage if you are facing a criminal charge. It is important that you speak with an experienced Los Angeles criminal defense attorney before you make any decisions.

At Wallin & Klarich, our Southern California probation violation attorneys have over 30 years of experience. Our attorneys will defend your rights and fight to get you the best possible result in your case. We will consult and advise you on all of your options so that you can make an informed decision regarding the charges you are facing. Call us today at (888) 280-6839 or contact us through our website at www.wklaw.com. We will be there when you call.

A woman whose 6-month-old son was attacked by two pit bulls in Murrieta after she left him alone with the animals has been charged with felony child endangerment. . The attack occurred in April inside a condominium on Arboretum Way. The baby boy was fastened in a car seat and had been bitten by a pit pull while the boy’s mother and a male friend were in another room. Police said the diaper was ripped off and the boy was bitten on the scrotum, leaving the child with permanent injuries. Both dogs, a 70-pound pit bull and a 60-pound pit bull-mix, were taken by animal control officers from Animal Friends of the Valleys and later euthanized.
Child endangerment can be charged as a felony or misdemeanor depending on the circumstances of the case and the degree of endangerment that the child is exposed to. If the child is exposed to harm under conditions where great bodily injury or death is NOT likely, and the person willfully causes or permits the child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or, having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her health may be endangered, is guilty of a misdemeanor. If, on the other hand, the child is exposed to harm under conditions where death or great bodily injury IS likely, and the person willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years.

In this case the mother of this poor infant is facing up to 6 years in prison and has already lost custody of her children. If you or a loved one are facing felony child endangerment charges in Southern California then don’t hesitate to contact the competent and experienced attorneys at the law firm of Wallin & Klarich. We’ll be there when you call or check us out at www.wklaw.com.

According to ESPN, Former NFL star Lawrence Taylor entered a plea of not guilty to charges of statutory rape and solicitation in a New York court. Taylor is accused of soliciting a prostitute in a case involving a 16-year-old runaway girl. Prosecutors say Taylor paid the 16-year-old girl $300 to have sex with him. The next court hearing is set for August 24, 2010 for a preliminary hearing.

A preliminary hearing requires the prosecution to present evidence to convince the judge that there is sufficient evidence to have Lawrence Taylor stand trial. The prosecution must show probable cause that Lawrence Taylor committed the crime for which he is accused.

If convicted, Taylor will be penalized under New York law. However, if this case was being prosecuted in California, Penal Code Section 261.5 states that unlawful sexual intercourse is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor. A minor is a person who is under the age of 18 years. Taylor would be facing up to three years in prison and a fine of ten thousand dollars ($10,000) on the statutory rape count in California.

If your or a loved one is facing a sex crimes charge, it is important that you speak with an experienced Southern California sex crimes attorney. At Wallin & Klarich, our Southern California sex crime attorneys have over 30 years of experience in handling all types of sex crimes, including rape cases. Our attorneys will be able to immediately start on your case and fight to get you the best possible result. Call us today at (888) 280-6839 or contact us through our website at www.wklaw.com. We will be there when you call.

According to the LA Times, the “Barefoot Bandit” has been caught and arrested in the Bahamas. Colton Harris-Moore, 19, has allegedly been on a crime spree for two years across four states and the Bahamian islands. His evasions and thefts had gained him a cult following. Harris-Moore has had frequent brushes with the law including a 2008 detention. He escaped from a halfway-house and it is is alleged that he began entering vacation homes to steal food, electronics, and credit cards. Nicknamed after committing his crimes while barefoot, the alleged Barefoot Bandit is accused of stealing a number of planes without formal flying lessons. The FBI offered a $10,000 reward for his capture.

Harris-Moore will most likely face federal and state theft charges. In California, a theft is the unlawful taking of someone else's property with the intent of keeping it permanently. If the value of the item stolen is worth four hundred dollars ($400) or more, the theft is considered to be a “grand theft.” See California Penal Code Section 487. The punishment for being convicted of a grant theft can be severe. Grand theft is considered to be a “wobbler.” This means the prosecution has discretion to charge a defendant with a felony or a misdemeanor. A misdemeanor conviction of grand theft is punishable by imprisonment for up to one year in county jail. A felony conviction of grand theft is punishable by imprisonment for up to three years in state prison.

If your or a loved one is facing a theft crime charge, it is important that you speak with an attorney who is experienced in handling theft crimes. At Wallin & Klarich, our theft crime attorneys have over 30 years of experience. We will aggressively fight to get you the best possible result in your case. Call us today at (888) 280-6839 or contact us through our website at www.wklaw.com. We will be there when you call.

It was recently reported in the LA Times that the police arrested the alleged “Grim Sleeper” serial killer. Police went into the South L.A. home of David Franklin, Jr., 57, and arrested him without incident.

Franklin is charged with 10 counts of murder and 1 count of attempted murder. Nicknamed after taking long breaks between killings, the Grim Sleeper is alleged to have committed murders from 1985 to 2007.

Detectives used the controversial familial DNA technique to find Franklin. The familial DNA technique traces the DNA found at the scene of a crime and links it to a family member who has a sample of DNA in a criminal database. The DNA traces a close match in the Y chromosome of a male relative. With this information, detectives can identify any family members that would fit the description of the killer. This technique is legal in only California and Colorado.

Los Angeles District Attorney Steve Cooley said detectives used a piece of discarded pizza with Franklin's DNA to make a link with Franklin’s father’s DNA. With this information, the detectives mapped out the Franklin’s family tree and narrowed down the search to either Franklin or his brother. Franklin’s brother was ruled out to be the Grim Sleeper because he was too young at the time of some of the murders.

If convicted, the allegations against Franklin could make him eligible for the death penalty.

We will continue to monitor this case as news breaks. If you or a loved one is facing a criminal charge, it is important that you speak with an experienced Southern California defense attorney. At Wallin & Klarich, our attorneys have over 30 years of experience in defending the rights of the criminally accused. Call us today at (888) 280-6839 or contact us through our website at www.wklaw.com. We will be there when you call.

On July 6, 2010, the Ninth Circuit Court of Appeal held that the district court did not violate appellants’ Sixth Amendment right to a fair trial by failing to appoint counsel in response to the self-represented appellants’ unprofessional trial behavior. Prior to trial, the district court gave appellants ample opportunity to have counsel appointed on their behalf but they insisted on representing themselves.

In 2004, appellants Kurt F. Johnson and Dale Heineman allegedly concocted a fraudulent scheme premised on relieving clients of mortgage debt. Because of this scheme, banks began to foreclose on appellants’ clients’ properties. Appellants retained an attorney who filed lawsuits against the banks. The suits were dismissed.

In 2005, the federal government indicted appellants on conspiracy and mail fraud charges. Judge Alsup, the same judge who presided over their previous civil case, was assigned to their criminal case. The appellants’ motion to recuse Judge Alsup was referred to another judge and denied.

Appellants declined to have an attorney represent them and chose to represent themselves at trial. In response, Judge Alsup conducted several Faretta hearings, which are hearings to determine a person’s competency to represent himself. Throughout these hearings, Judge Alsup repeatedly advised appellants of the wisdom in having counsel appointed and the danger of representing themselves at trial, especially since they had no legal training. Appellants insisted on representing themselves.

Due to appellants making several bizarre statements in court and because of their decision to represent themselves, Judge Alsup ordered that appellants be given a mental evaluation. The evaluating physician testified that the examination revealed no indication of mental illness in either appellant.

Though appellants refused counsel, Judge Alsup appointed standby counsel to advise them on matters of procedure and protocol only. After a month-long jury trial, both appellants were convicted and sentenced to over 20 years in federal prison.

Under relevant law, a person has a Sixth Amendment right to represent himself at trial, as long as he is advised of his right to counsel, and knowingly and voluntarily waives the right. However, the right to represent oneself can be terminated if, at trial, the self-represented person persists in serious defiant or obstructionist behavior.

The Ninth Circuit reasoned that “the behavior of the [appellants] during the trial…, while occasionally wacky, was not disruptive or defiant.” (2010 DJDAR 10480.) The court of appeal noted that though appellants insisted on wearing their prison garb, filed meritless pleadings, and were at times uncooperative, their conduct was not the serious disruption necessary to require the district court to terminate their self-representation and appoint counsel. The court contrasted cases where defendants completely refused to present a defense with the current case, where appellants gave opening statements and closing arguments, conducted cross-examination, and testified on their own behalf. On these facts, the Ninth Circuit held that the district court’s refusal to terminate appellants’ right to self-representation did not violate their right to a fair trial.

If you decide to represent yourself, the consequences can be dire, especially if you are accused of a felony. Representing yourself will rarely result in a better outcome than having an attorney represent you and, in an overwhelming number of cases, you will end up in a much worse position.

If you or someone you know has been accused of a crime, you will need a Southern California criminal defense attorney with the experience and knowledge necessary to present the best possible defense. At Wallin & Klarich, we have over 30 years experience helping people accused of crimes. Call us today at (888) 280-6839 or visit us at our website at www.wklaw.com. We will be there when you call.

Tens of thousands of veterans have completed combat tours in Iraq and Afghanistan and almost inevitably suffer from some level of post traumatic stress disorder (PTSD). Problems and symptoms include: sleeplessness, violent awakenings, flashbacks, nightmares, suicidal ideation, dissociation from events or reality, impotence, and other complications.

Unfortunately, those suffering from PTSD often self medicate by abusing alcohol and/or drugs. Military DUI charges, drug charges, domestic violence, and other acts of violence are common manifestations.

Research has shown that common symptoms of PTSD often do not express themselves for months or years after traumatic events. Although some symptoms may be present initially, problems intensify with time if untreated.

Veteran injuries may or may not be visible. Injuries to the head are referred to as traumatic brain injuries (TBI). Veterans with TBI frequently suffer from moderate to severe PTSD as well. Common disabilities associated with TBI include problems with cognition (thinking, memory, and reasoning), sensory processing (sight, hearing, touch, taste, and smell), communication (expression and understanding), and behavior or mental health (depression, anxiety, personality changes, aggression, acting out, and social inappropriateness). Moderate to severe TBI often impacts speech and language skills, and wounds may involve the jaw, tongue, vocal cords, or speech centers of the brain itself.

Orange County, California – Special Veterans Court

The idea for a special veteran’s court originated with Judge Robert Russell in Buffalo, New York in January 2008. He recognized that veteran’s disabilities were often leading them deeper into the justice system and they were often being incarcerated unjustly.

Orange County, California, Veterans Court Judge Wendy Lindley had a participant in one of her other programs who happened to be a veteran with PTSD, and he committed suicide. That made her recognize that there needs to be more services and in-depth treatment for veterans, and that is what motivated her to help launch the Veterans Court in Orange County.

The goals of the Orange County Veterans Court are to protect the public, reduce participant contacts with the criminal justice system, reduce costs associated with criminal case processing and rearrest, and introduce participants to an ongoing process of recovery designed to help them become stable, employed and substance-free while continuing mental health care through community/peer counseling groups or the Veterans Administration.

Veterans Court in Orange County, which has been operating since November 2008, aims to provide an inter-agency, collaborative treatment strategy for veterans in the criminal justice system who suffer from PTSD, psychological or substance abuse problems as a result of having served in combat. Orange County Veterans Court participants will participate in an 18-month program with four phases: After participants enter a guilty plea, they receive a treatment plan, ongoing treatment, stabilizing and mentoring and a transition to graduation. Throughout the program, participants must have no positive drug or alcohol tests. They also must attend program activities and report regularly to the VA coordinator and probation officer.

Most participants in the program are recent veterans returning from Iraq and Afghanistan. Veterans are monitored closely, and they are required to be employed, looking for work or be in college. To participate in the Orange County program, veterans must have served in combat and must live in Orange County. Those who have previous diagnoses for PTSD and TBI make a stronger case for participation.

It is critical to speak with an attorney familiar with Veterans Court eligibility. That attorney can advocate on your behalf in an effort to secure admittance into a program that provides treatment in lieu of incarcerations. Contact www.wklaw.com and we will help you through this time.

On June 29, 2010, the California Court of Appeal, Fourth District, decided People v. Honan, which ruled that mandatory sex offender registration for those convicted of indecent exposure but discretionary registration for those convicted of lewd conduct did not violate equal protection.

On February 17, 2008, defendant Donald Honan and Jose Martinez-Gutierrez were at a sauna in a gym. Martinez-Gutierrez testified that while looking at Honan, Honan smiled and stroked his own erect penis, which he had released from his shorts.

Martinez-Gutierrez testified that he was uncomfortable, left the sauna, but later returned. According to Martinez-Gutierrez, Honan was still there and he resumed exposing himself and stroking his penis. Honan was arrested, charged, and convicted of lewd conduct (California Penal Code section 647(a)) and indecent exposure (California Penal Code section 314(1)).

At sentencing, the trial court stated that it felt constrained by California Penal Code section 290’s requirement that Honan register as a sex offender because of his indecent exposure conviction. Absent the mandatory requirement in Penal Code section 290, the court would not have ordered Honan to register as a sex offender. Honan appealed on equal protection grounds.

An equal protection violation exists if, under the appropriate standard of review, similarly situated people are treated differently. The court of appeal rejected Honan’s claim that because identical conduct can support lewd conduct and indecent exposure convictions, no rational basis existed for the different sex offender requirements.

The court of appeal noted that, for an equal protection claim, the claimant must argue that he belongs to a group of similarly situated people. Though lewd conduct and indecent exposure are related offenses, the court pointed out that lewd conduct can be violated by merely reckless sexual behavior, whereas indecent exposure requires a willful commission of a sexually inappropriate manner. Due to the greater intent requirement for indecent exposure, the appellate court found that those convicted of lewd conduct and indecent exposure were not similarly situated and that the mandatory sex offender registration for indecent exposure did not violate equal protection.

Under California Penal Code section 647(a) and related case law, lewd conduct is willfully touching an intimate part of the body while in a public place with the intent to sexually gratify or offend. To be convicted, the person must know or should reasonably know that other people could potentially witness the sexual behavior. Lewd conduct is a misdemeanor punishable by up to six months in jail, up to a $1,000 fine, or both. The trial court may, but is not mandated to, require that the person register as a sex offender. (California Penal Code section 290.006.)

Under California Penal Code section 314(1), indecent exposure exists when a person willfully exposes his genitals in another’s presence who might be offended by the exposure, and the person exposed intended to direct public attention to himself for his own sexual gratification or to offend another. Indecent exposure is a misdemeanor punishable by up to six months in jail, up to a $1,000 fine, or both. In addition, under California Penal Code section 290(c), a person convicted of indecent exposure must register as a sex offender.

If you or someone you know has been accused of a sex crime, you will need a competent sex crimes defense attorney who will diligently defend you, especially considering the grave consequences of an adverse result. At Wallin & Klarich, we have over 30 years experience defending sex crimes. Call us today at (888) 280-6839 or visit us at our website at www.wklaw.com. We will be there when you call.

On July 2, 2010, the city of Oakland, California, prepares itself for possible rioting as the trial of a white police officer accused of murdering an unarmed black man draws to a close.

On January 1, 2009, Bay Area Rapid Transit police officer Johannes Mehserle, 28, shot Oscar Grant after passengers accused Grant and others of fighting on a train. Mehserle claimed that he had meant to subdue Grant with a Taser, but accidentally drew and fired his handgun instead, killing Grant.

Mehserle may be convicted of second degree murder, voluntary or involuntary manslaughter, or could be found not guilty. (California Penal Code sections 189, 192(a), (b).)

Closing arguments concluded July 2, 2010. The jury began deliberating that afternoon.

The trial has gained significant public interest. The city of Oakland posted a message on its website from Oakland’s mayor and police chief stating that though they “understand that the community is grieving,” they “are dedicated to safe expressions of emotions during this difficult time” and “will not tolerate destruction or violence” in response to the trial verdict.

Under California Penal Code sections 187 and 189, the unlawful killing of another human being with malice aforethought and absent other circumstances is second degree murder. It is punishable by a 15 year to life in state prison. (California Penal Code section 190.)

Under California Penal Code section 192(a), voluntary manslaughter is the unlawful killing of another human being while in the heat of passion. It is punishable be 3, 6, or 11 years in state prison. (California Penal Code section 193(a).)

Under California Penal Code section 192(b), involuntary manslaughter is the unlawful killing of another human being while committing a misdemeanor or while performing a lawful act in a negligent way. It is punishable by 2, 3, or 4 years in state prison. (California Penal Code section 193(b).)

Under the mistake of fact defense, a person may have committed the criminal act, but because the factual circumstances were not as he believed, he did not have the requisite intent to complete the crime. (California Penal Code section 26.) If a person’s mistake of fact is reasonable, then even if he committed the criminal act, he will be found not guilty. If a person’s mistake of fact is unreasonable, then he may be found not guilty or liable for a lesser crime, depending on the crime and the requisite intent. Mistake of fact is not a defense to some crimes, such as unlawful sexual intercourse with a minor. (California Penal Code section 261.5.)

If the criminal act is murder, as is the case with Mehserle, if the jury finds that he was mistaken in fact regarding his firearm and the mistake was unreasonable, he may still be found guilty of involuntary manslaughter.

If you or someone you know has been accused of a homicide such as murder, you need an experienced criminal defense attorney who will review the facts and the law with you to get the best possible result. At Wallin & Klarich, we have over 30 years experience defending a variety of criminal matters, including murder and manslaughter. Call us today at (888) 280-6839 or visit us at our website at www.wklaw.com. We will be there when you call.

On June 28, 2010, the United States Supreme Court decided McDonald v. City of Chicago, a closely watched case that recognized that states cannot infringe a person’s right to own a firearm for self-defense in his home. The Court ruled that a law totally banning handgun possession in the city of Chicago was unconstitutional under the Second and Fourteenth Amendments.

The Second Amendment states that “[a] well-regulated milita, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.”

Guns rights groups such as the NRA had argued that the Second Amendment protected the individual right of a person to possess a firearm. Gun control activists maintained that the right described referred to the state militia’s right to have firearms for the purpose of defending the state against the federal government.

Prior to two years ago, the United States Supreme Court’s interpretation of the Second Amendment aligned with the gun control side of the argument. In 2008, however, the Court decided D.C. v. Heller, a decision that recognized that a person had an individual right to own a firearm and that the federal government could not infringe upon that right.

Through a doctrine of constitutional law called incorporation based on the Fourteenth Amendment’s Due Process Clause, the Court in McDonald recognized that state and local governments also could not infringe on that right.

So what does this mean for current gun laws?

We know that a total firearm ban is unconstitutional, but what about other laws? Many laws limit when or where you can possess a gun, but McDonald casts a shadow on their constitutionality. What about possessing a gun in a public place, like near a school or in a stadium or an airport? What about possessing a gun in your car?

What about if a city bans live ammunition but permits the sale of only rubber bullets that can be fired from standard firearms?

The Court did describe some of the limits of the Second Amendment and asserted that most existing gun restriction laws would be constitutional. For example, the Court explicitly stated that current laws banning gun ownership for felons are valid. But under the reasoning of McDonald, don’t felons have a right to self-defense in their own homes too?

The only thing certain after McDonald v. Chicago is that a flood of litigation will follow to determine which gun restrictions laws are constitutionally valid. If a person is convicted under a gun control law that is later held unconstitutional, his conviction may be overturned.

Under California Penal Code section 12020(a)(1), selling or possessing several different types of weapons or bullets can be either a misdemeanor or a felony. Some of the banned weapons include undetectable firearms, firearms that are not readily apparent to be firearms, and short-barreled rifles and shotguns. All of these weapons could conceivably be used for self-defense in one’s home, so it’s not certain if every part of the statute will survive a constitutional challenge. Still, Penal Code section 12022(a)(1) and other California gun states remain the law and have not been explicitly invalidated by McDonald.

If you or someone you know has been accused of a weapons crime, you will need an experienced attorney who is knowledgeable about the dynamic changes occurring in criminal and constitutional law. At Wallin & Klarich, we have over 30 years experience in defending clients from gun possession charges and protecting their constitutional rights. Call us today at (888) 280-6839 or visit us at our website at www.wklaw.com. We will be there when you call.