Southern California Defense Blog

The California Court of Appeal recently held that a Court abuses its discretion when it fails to make clear the statement of calculation method it used in ordering restitution to the victim of the crime.

In People v. Jones, No. C063113, the defendant entered a plea of no contest to driving under the influence and admitted prior DUI convictions. As part of a plea agreement, a charge of hit and run was dismissed. Nonetheless, the trial court ordered Jones to pay restitution to the victim of the hit and run.

At the restitution hearing, the victim testified that Jones damaged a camper that the victim used in her business. She testified that it took nine months to complete the repairs and sought $5,606.62 for lodging and meal expenses, wages she had to pay to others to run her business, and the cost of repairing her car’s bumper, which was torn off when she came to court. The court ordered restitution in the sum of $4,468.40, noting that the time it took to fix the camper was unreasonable. The court did not otherwise explain the method of calculating that figure.

Jones appealed the case arguing that the trial court erred in failing to explain its calculation method. The court of appeal agreed and reversed and remanded to have the trial court explain it’s calculation methods. Under Penal Code Section 1202.4, if a victim has suffered economic loss due to the defendant’s conduct, the court must require the defendant to make restitution to the victim. Courts must employ a method of calculating restitution that is rationally designed to determine the victim’s loss, and make a clear statement of the method used and how that method justified the ordered amount. Here, the trial court failed to make a clear statement of the calculation method it used.

If you or a loved one is facing a criminal charge, it is possible that you may also face restitution. It is important that you speak with an experienced attorney who can make sure the court follows the proper procedures when dealing with a determination of a proper restitution amount. At Wallin & Klarich, our Southern California criminal defense attorneys have over 30 years of experience. We will fight to defend your rights and 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.

Medical marijuana users and local governments are paying close attention to the ruling in Qualified Patients Association v. City of Anaheim (G040077). This is a case of first impression that is being heard by the Court of Appeal. The issue is whether local governments can enact regulations entirely prohibiting the operation of medical marijuana dispensaries.

California decriminalized medical marijuana in 1996 which is codified in Health & Safety Code Section 11362.5. The California Legislature enacted Senate Bill 420, also known as the Medical Marijuana Program in 2003. SB 420 established guidelines on using and distributing medical marijuana. It also created a state approved voluntary identification card system for patients. The medical marijuana identification cards assisted law enforcement in identifying whether a person legally or illegally possessed marijuana.

The Anaheim ordinance made it unlawful for any person or entity to own, manage, conduct or operate a medical marijuana dispensary within the city. The ordinance was the first law to give a definition to a medical marijuana dispensary. It states that a medical marijuana dispensary is any facility or location where medical marijuana is distributed or made available by or to three or more qualified patients, person with identification cards or primary caregivers. Violating the ordinance may result in an arrest and prosecution for a misdemeanor offense.

The City of Anaheim was victorious in the first round where the lower courts ruled that Anaheim’s ordinance was not in violation of any laws. The Qualified Patients Association appealed, arguing that the ordinance is preempted by state law in that it frustrates the purpose and intent of state law by restricting and limiting the availability and distribution of medical marijuana to qualified persons. They also argued that Proposition 215 and the Medical Marijuana Program should overrule the city’s ordinance. The Qualified Patients Association also contended that the ordinance created a new criminal penalty in an area of law that already has established state penalties.

Anaheim defended the law by arguing it is not preempted by the medical marijuana laws. Specifically, Prop. 215 is limited to decriminalizing the use and cultivation of medical marijuana. The city’s ordinance does not penalize the use and cultivation of medical marijuana. The city’s argument is that the ordinance only penalizes having a medical marijuana dispensary. Another argument was that the California medical marijuana laws are preempted by the federal Controlled Substances Act, which makes the use, distribution and cultivation of marijuana illegal. A ruling is expected from the court shortly.

If you or a loved one is facing a marijuana charge, it is important that you speak with an experienced criminal defense marijuana attorney. At Wallin & Klarich, our Orange County marijuana defense attorneys have over 30 years of experience. We will aggressively fight to get you the best possible result in your case. Contact us today at (888) 280-6839 or contact us through our website at www.wklaw.com. We will be there when you call. We will also update you with the court’s decision.

It was recently reported on LA Times that two men were arrested on suspicion of vandalism. Police officers served search warrants on suspected graffiti vandals and arrested two of the three suspects. The three men are alleged members of a tagging group called PCN, which stands for Painting City Nightly or Painters Causing Nightmares. They are accused of causing $338,000 in damage to freeway bridges and L.A. County properties. Their tagging is reported to have started approximately 1 ½ years ago. German Lara was arrested without incident. Lara used the tagging moniker “Move.” He is alleged to be responsible for $109,000 in damage. Andrew Pineda, who uses the tagging moniker “Bogus,” was also arrested. He is alleged to have caused $109,000 in damages.
Under California Penal Code Section 594, vandalism is committed when a person maliciously defaces with graffiti, damages, or destroys any real or personal property. Vandalism is a considered to be a “wobbler.” This means that the prosecution has discretion to charge the crime as either a felony or a misdemeanor. If the damages are more than $400, the prosecution has discretion to charge the crime as a felony. A felony conviction is punishable by imprisonment in state prison for up to three years and a fine of up to $10,000. If the damages are less than $400, the crime is a misdemeanor. A misdemeanor conviction is punishable by imprisonment in county jail for up to one year and a fine of up to $1,000. The court may also order the convicted defendant to pay restitution. These are only a few of the possible punishments for a vandalism conviction. For more information, visit our website at www.wklaw.com and read our Vandalism section.
If you or a loved one is facing a charge of vandalism, it is important that you speak with an experienced vandalism attorney. At Wallin & Klarich, our Southern California vandalism attorneys have over 30 years of experience. We will closely review the facts of your case and aggressively defend your rights. Call us today at (888) 280-6839 or contact us through our website at (888) 280-6839 or contact us through our website at www.wklaw.com. We will be ther

A police officer stopped a juvenile, M, for riding a bicycle without proper lighting. The officer asked M to step away form the bike and take off his backpack. M said he would not consent to a search of the backpack. The officer believe this was a “red flag” and, concerned that M might be armed, he pat-searched M and found a loaded revolver in M’s jacket. M challenged the constitutionality of the search in the juvenile court and his challenge was denied. On appeal, the California Court of Appeal reversed the juvenile court and found that M’s refusal to consent to a search cannot, by itself provide the reasonable suspicion necessary for a lawful pat-search.

Any search conducted n the State of California without a search warrant is presumptively unconstitutional. That means that the burden of proof is on the Government to prove that the search was in fact lawful. In this case, the juvenile court held that the search in this case was lawful but that decision was overturned by the appellate court who ruled that the search in this matter violated M’s constitutional rights. It is important to know your rights and to have competent criminal defense attorney review your case if it involves a warrantless search of your person or property.

Juvenile Criminal law in California is very different in many ways from adult criminal law. If your child is facing criminal charges in California it is important to hire a law firm that is familiar with the unique procedures in juvenile criminal court. Nothing is more important than the safety and freedom of your child. Please don’t hesitate to contact the experienced and aggressive Los Angeles juvenile criminal attorneys at the law firm of Wallin & Klarich. We’ll be there when you call.

The OC Register reported that, Craig Lowden says he was twirling and driving with his cell phone in his hand last November when he got pulled over in Westminster. "I got a violation for holding the phone in my hand," said Lowden, 37, a Long Beach resident. "I'm going to fight it."
On a recent Monday morning, Lowden was one of dozens waiting in line at the traffic counter at the Westminster branch of Orange County Superior Court. He showed up to get a court date.
"When I went into court right now she (the judge) basically told me that it's against the law to actually hold it in your hand," he said. The judge said her fine would come to nearly $150. Paying that much would be a hassle, he said.
For a first offense, using a hand-held phone while driving is supposed to bring a $20 fine. But when state-mandated fees, surcharges and "penalty assessments" are tacked on, the total fine comes to more than seven times that amount.
The additional fees have been added by the state legislature over the years as a way to fund state and county programs and court costs.

If you or a loved one have been accused or charged and with this or any other traffic violation, it is important that you speak with an experienced Southern California traffic attorney, like the attorneys at Wallin & Klarich. We have over 30 years of experienced handling these type of matters and can assist you in obtaining the best possible result. Call the law firm of Wallin & Klarich today at, (888) 749-0034 to speak to an experienced criminal defense attorney about your case.

Evidence of a prior offense is most often used by the prosecution to increase seriousness of the crime or to increase the sentence. For example, a defendant with a prior conviction for driving under the influence, will face much harsher punishments if the prior convictions occurred within 10 years.

The California Penal Code allows a foreign conviction to be used as a serious felony prior when the record of conviction for the foreign offense shows conduct that qualifies as a serious felony in California. In other words, if the defendant’s actions in the foreign jurisdiction would amount to a felony in California, then the prosecution may use the prior conviction against the defendant in the new case.

There are a number of circumstances where a prior felony conviction from a foreign jurisdiction may not be used against a defendant. Hiring an experienced aggressive criminal defense firm is the best way to ensure you are not exposed to potentially stricter punishments.

If you or a loved one have been charged with a crime, it is imperative that you hire an aggressive, experienced criminal defense firm. Hiring an experienced Southern California criminal defense lawyer can greatly increase your chances of keeping your freedom, and ensuring you receive the lowest possible sentence. The attorneys at Wallin & Klarich have been helping people for over 30 years.

Please feel free to contact Wallin & Klarich to discuss your case. You can reach us 24 hours a day, 7 days a week at (888) 280-6839 or go to our website at www.wklaw.com for more information. We will be there when you call.

State law makers and local police are looking to keep convicted sex offenders from online social networks such as MySpace and Facebook, where authorities said sexual predators now roam looking for victims. As minors continue to flock toward social sites such as MySpace and Facebook, so do sexual predators who are looking for victims, officials said. Just as minors are protected from convicted sex offenders in places such as schools and parks, they must too be protected from the cyber world where they socialize.

If you are a registered sex offender in Southern California, or if you are facing a charge that may carry with it the requirement that you register as sex offender, this development should concern you. California Penal Code Section 290 is the law that requires those convicted of certain enumerated offenses to register for LIFE as a sex offender. However there are things that can be done to terminate the requirement to register in California. One such method is to obtain what is called a Certificate of Rehabilitation.

Obtaining a Certificate of Rehabilitation is complicated process which should be undertaken with the guidance of an experienced Southern California criminal defense attorney. We here at Wallin & Klarich can guide you through that process. We have been helping criminal defendants for over 30 years. Call us at (888) 280-6839 or visit us at www.wksexcrimes.com and reads our section on Certificate of Rehabilitation for more information. We will be there when you call.

The California Court of Appeals recently ruled that the defendant in a sex crimes case did not unlawfully fail to register as a sex offender because the least adjudicated elements of her Kentucky offense did not amount to a registrable offense in California.

In In re Rodden, 2010 D.A.R. 8428, the Petitioner was charged with failing to register as a sex offender in California. The Petitioner was convicted in Kentucky for the sex crime of facilitating sodomy. The Petitioner was put on probation and did not have to register as a sex offender in Kentucky. The Petitioner then moved to California where she did not register as a sex offender.

In California, an out-of-state conviction requires a defendant to register as a sex offender in California only when the least adjudicated elements of the offense satisfy all of the elements of a crime enumerated in subdivision (c) of section 290 or when the foreign jurisdiction required the defendant to register as a sex offender.

Here, the trial court found that the Kentucky crime was comparable to California Penal Code Section 266j. Section 266j provides: “Any person who intentionally gives, transports, provides, or makes available, or who offers to give, transport, provide, or make available to another person, a child under the age of 16 for the purpose of any lewd or lascivious act as defined in Section 288, or who causes, induces, or persuades a child under the age of 16 to engage in such an act with another person, is guilty of a felony . . . .” Based on the trial court’s determination that the Kentucky crime was comparable to a California crime, the petitioner entered a plea of guilty.

On appeal, the court found that the Kentucky crime was not comparable to the California crime. The Kentucky crime did not satisfy all of the elements under California Penal Code 266j. The Petitioner was not required to register as a Sex Offender in Kentucky. Therefore, the Petitioner’s guilty plea was vacated.

This case illustrates the importance of having an experienced Los Angeles sex crimes attorney on your side. If you were convicted of a sex crime in another state, it is not an automatic requirement that you must register in California. It is critical that you speak with an experienced sex crimes attorney who can go through each elements of the crime you were convicted of and compare it to a California crime.

At Wallin & Klarich, our Southern California sex crime attorneys have over 30 years of experience. We have defending all types of sex crimes and we can help you. Call us today at (888) 280-6839 or contact us through our website at www.wksexcrimes.com. We will be there when you call.

The California Court of Appeal recently ruled that evidence supported the conviction of driving under the influence of methamphetamine where the drug was described as one that could impair driving ability and defendant was agitated, paranoid and impaired when stopped.

In People v. Benner, 2010 D.A.R. 8942, the defendant was pulled over by police officers for having expired registration tags. The defendant threw a bag out of the window before pulling over. The police found the bag and discovered about three ounces of methamphetamine. A drug recognition expert, Allen Rieckhoff, arrived on the scene. He noticed signs of methamphetamine use, which were subsequently confirmed from a blood test. Rieckhoff took the defendant to the police station where sobriety tests were administered. The defendant failed a number of the tests and was charged with driving under the influence of methamphetamine.

Under Vehicle Code section 23152, subdivision (a), it is unlawful for any person who is under the influence of any alcoholic beverage or drug to drive a vehicle. For purposes of this section, the term drug means any substance, other than alcohol, “which could so affect the nervous system, brain, or muscles of a person as to impair, to an appreciable degree, his ability to drive a vehicle in the manner that an ordinarily prudent and cautious man, in full possession of his faculties, using reasonable care, would drive a similar vehicle under like conditions.” (Veh. Code, § 312; see also People v. Canty (2004) 32 Cal.4th 1266, 1278.)

Appellant asserted there was no evidence methamphetamine could so affect a person. However, drug recognition expert Rieckhoff testified methamphetamine tends to make people jittery, anxious and emotionally erratic. He said users are prone to mood swings and are generally unable to perform tasks they are given. While decreased agility and concentration does not result in all cases, the drug tends to make it harder for people to perform “divided attention tasks,” i.e., those tasks that require a person to do more than one thing at a time. Rieckhoff put driving in that category, explaining that drivers must not only be able to operate a motor vehicle, but also react to “whatever comes [their] way, be it a red light [or] be it a kid [who] steps off the sidewalk into [their] path.”

The court found that there was sufficient evidence to convict the defendant on driving under the influence of drugs based on the defendant’s actions and the expert testimony.

If you or a loved one is facing a charge for driving under the influence of methamphetamine, it is important that you speak with an experienced DUI attorney. At Wallin & Klarich, our Southern California DUI attorneys have over 30 years of experience. Our attorneys are highly knowledgeable on the most up-to-date DUI laws. 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.

Under California Penal Code Section 261, rape is defined as an act of sexual intercourse with a person who is not the spouse of the perpetrator. Rape can be accomplished in a number of different ways. Penal Code Section 261(a) lists the different circumstances under which a rape charge can result.

Another type of rape that can be charged is when the sexual act is accomplished by force, violence, duress, menace, or fear of immediate bodily injury on the alleged victim or another.

Section 261(a)(1) states that rape can occur where the sexual act is accomplished against the alleged victim’s will by means of force, violence, duress, menace or fear of immediate and unlawful bodily injury on the person or another.

In this sense, the prosecution must prove that the defendant used some sort of force or threat of force in order to accomplish the sexual act.

“Duress” means a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted. The total circumstances, including the age of the victim and his or her relationship to the defendant, are factors to consider in determining the existence of duress.

“Menace” means any threat, declaration, or act which shows an intention to inflict an injury upon another.

If you or a loved one has been charged with rape, it is important that you talk to an experienced criminal defense attorney. At Wallin & Klarich, our attorneys have over 30 years of experience in handling all types of rape cases. Call us today at (888) 280-6839 or visit us on our website at www.wksexcrimes.com. We will be there when you call. Read our next blog as we will cover another area of rape.

It was recently reported in the OC Register that an Anaheim pastor was sentenced to six years in state prison for molesting four girls in his congregation. Jose Rama Campoverde, 46, entered a plea of guilty to one felony count of lewd acts with a minor, five felony counts of lewd acts on a child, two misdemeanor counts of child annoyance, and a sentencing enhancement allegation for lewd acts on multiple children.
Under California Penal Code Section 288, any person who willfully and lewdly commits any lewd or lascivious act upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years. Being convicted of this crime will also result in mandatory sex offender registration under the Sex Offender Registration Act pursuant to Penal Code 290. This registration requirement lasts a lifetime.
If you or a loved one is facing a sex crimes charge, it is important that you speak with an experienced sex crimes attorney. At Wallin & Klarich, our Orange County sex crimes attorneys have over 30 years of experience. We have defended all types of sex crimes cases and we can help you. Our attorneys are aggressive and passionate. We will 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.wksexcrimes.com. We will be there when you call.

On August 3, 2010, a driver for an alcohol wholesaler went to work with a semiautomatic rifle and allegedly opened fire, killing eight. The driver shot and killed himself as police approached to subdue him.

The driver, Omar S. Thornton, 34, was a new employee at Hartford Distributors in Manchester, Connecticut. The Teamsters Union stated that, despite his recent employment, he had already been identified as a disciplinary problem. A law enforcement official stated that Thornton had been suspected of stealing from the company.

Thornton was scheduled to go to work that day to meet with the Teamsters Union to discuss his disciplinary issues. It is unclear whether the meeting took place, but one of the identified victims was a local Teamsters official. Another identified victim was a member of the family that founded Harvard Distributors.

In California, murder is the unlawful killing of another human being with malice aforethought. (California Penal Code section 187(a).) Malice aforethought exists when there is a deliberate intent to cause great bodily injury or death, when the defendant acts with reckless disregard for human life, or when the death occurs during the commission of certain violent felonies. (California Penal Code sections 188, 189.) If the murder was done with premeditation and deliberation, it is first degree murder and punishable by death, life in prison without the possibility of parole, or 25 years to life in prison. (California Penal Code sections 189, 190.)

If you or someone you know has been accused of murder, manslaughter, or other criminal homicide, you will need an experienced Southern California criminal defense attorney who will vigorously defend you against these serious charges. At Wallin & Klarich, we have helped people accused of a variety of crimes, including murder, for over 30 years. Call us at (888) 764-2615 or visit our website at www.wklaw.com. We will be there when you call.

Federal prosecutors are going forward with their perjury case against former MLB star Barry Bonds. This may be a surprise move by the prosecutors after the Ninth U.S. Circuit Court of Appeals upheld a San Francisco federal judge’s ruling excluding crucial evidence to the prosecution’s case on hearsay grounds. The excluded evidence included certain blood and urine test results that the government could not link to Bonds. The government’s best chance of linking the test results to Bonds is to have Bonds’ friend and personal trainer, Greg Anderson, testify. Anderson has refused to testify and is serving jail time for that decision. Both sides stated the earliest a trial date can be set would be in March 2011. Prosecutors must prove that Bonds lied when he told a grand jury that he did not knowingly use anabolic steroids and human growth hormone.

Under 18 U.S.C. Section 1623 of the United States Code, it is a federal crime to make false statements before any court or grand jury of the United States while under oath. A perjury conviction shall be punished by up to five years in federal prison.

This case illustrates the importance of having an experienced attorney at your side. Although some may say that it was obvious that Barry Bonds used performance enhancing drugs, it is the prosecution’s duty to prove the crime was committed beyond a reasonable doubt. The prosecution can only use admissible evidence, which includes evidence that is legally obtained. It will be tough for the prosecution to prove that Bonds lied to the grand jury when crucial evidence is not admissible.

If you or a loved one is facing a perjury charge, the attorneys at Wallin & Klarich can help you. Our Southern California perjury attorneys have over 30 years of experience. We will fight for your rights and provide the best possible perjury defense. Call us today at (888) 280-6839 or contact us through our website at www.wklaw.com. We will be there when you call.

Starting July 1, 2010, a new law requires anyone convicted of DUI in Los Angeles County and three other counties, even first-time offenders, to install an ignition interlock device (IID) in his or her vehicle. (California Vehicle Code section 23700(a)(7).)

IIDs require the driver to blow into a device before the vehicle’s ignition will start. If the IID determines that the driver’s blood alcohol content is above a certain threshold, the vehicle will not start. The purpose of the IID is to prevent previous DUI offenders whose blood alcohol content is above the threshold from driving.

Prior to the new law (and what is still the existing law in the non-pilot program counties), a California court had the discretion to require an IID for a first-time DUI offenders if his or her blood alcohol content was over .15%. (California Vehicle Code section 23575(a)(1).) With the new law, any first-time DUI offender in the affected counties will be required to install an IID unless the offender no longer owns or has access to a vehicle. (California Vehicle Code section 23700(a)(7), (8).)

A first offender must have the IID installed for five months. (California Vehicle Code section 23700(a)(7)(A)(i).) If the first offense involved an injury, the IID must be installed for a year. (California Vehicle Code section 23700(a)(7)(B)(i).) Subsequent DUI convictions and if the DUI caused injury will increase the mandated time the IID must be installed. (See California Vehicle Code section 23700(a)(7)(A), (B).) If the offender’s license was suspended or revoked, the mandatory time the IID must be installed starts when the offender regains his or her right to drive. (California Vehicle Code section 23700(a)(3).)

The type and cost of an IID varies by county, but the offender is usually responsible for installing and maintaining the device. (California Vehicle Code section 23700(a)(10).) In addition, the offender must pay the monthly lease for the device. Thus, the cost of an IID can be substantial.

Note that this law applies to convictions after July 1, 2010, even if the incident leading to the conviction happened before July 1. (California Vehicle Code section 23700(a)(7)(a).) The IID requirement does not apply to motorcycles: a person who must install an IID cannot ride a motorcycle during the IID installation period. (California Vehicle Code section 23700(e).)

The pilot program is expected to last until January 1, 2015, and the Department of Motor will report its findings on the effectiveness of the program. (California Vehicle Code section 23701.) If the Legislature approves the findings, the new law may be applied throughout California.

If you or someone you know has been convicted of driving under the influence of alcohol or drugs, you will need an experienced Los Angeles County DUI attorney who can aggressively defend you. At Wallin & Klarich, our DUI lawyers know the particular laws of each Southern California county we serve, and we have helped people accused of DUI for over 30 years. Call us today at (888) 764-2615 or visit us at our website at www.wklawdui.com. We will be there when you call.