Southern California Defense Blog

On November 17, 2010, sometime between 4:30 and 5:00 PM, paroled sex offender Lawrence Brown was released from prison. At 5:29 PM, police stopped his vehicle, arrested him for a parole violation, and he was headed back to prison.

One of Brown’s parole terms was that he not be alone with another female in a vehicle. After his release, Brown was picked up by a female friend. His friend was on the phone with his parole officer asking for directions to the office when police stopped the vehicle. Authorities had followed the vehicle the entire trip.

Brown stated that he had so many parole terms that he did not know that he could not be in a vehicle alone with another female. His female friend also stated she was not aware of this parole condition and he did not tell her.

In 1985, Lawrence Brown was convicted of seven counts of kidnapping and sexually assaulting two young girls. He was sentenced to 49 years in prison, but was scheduled to be released early after four mental health professionals determined that he was suitable for release.

On the day of his release, the Orange County District Attorney’s Office tried to block Brown’s release and pressured one mental health professional to change her opinion and designate him a violent sexual offender. This would have required Brown to be admitted into a mental institution until he was no longer deemed a violent threat. The OCDA placed a hold on his release until 11:59 PM, but the warden at Chino State Prison overruled the hold and released him in the late afternoon.

The OCDA also stated that a new alleged victim has contacted them and stated that she was sexually assaulted by Brown when she was a young girl. Her statements may be used against him at his parole violation hearing.

In a press conference by Orange County District Attorney Tony Rackauckas on November 16, Rackauckas called Brown “the boogie man of every child and their parents’ worst nightmare. . . . Free to roam our streets, this monster is a ticking time bomb.” Rackauckas later asked, “isn’t it only logical that Brown knows he can never again be caught violently kidnapping and sodomizing a young girl, and next time he will murder his victim. . .? What does Brown’s next victim look like?”

A person who is convicted of a crime is usually granted parole at the completion of the sentence. Parolees do not have the same rights as persons who have never been convicted or pled guilty to a crime: they must agree to various parole conditions upon release, and a parole violation may subject the parolee to re-incarceration. (Penal Code section 3041.5(b)(1).) If arrested for a parole violation, the parolee has a right to a parole revocation hearing to argue either that he did not violate parole, or that mitigating circumstances exist so that parole revocation is not warranted. (Penal Code section 3044.)

If you are arrested for a parole violation, DO NOT speak to law enforcement besides to state that you do not want to answer their questions and that you wish to speak to your Southern California criminal defense attorney. Do not admit that you committed a parole violation and do not sign anything without first consulting an attorney. Note that the burden of proof for a prosecutor is lower in a parole revocation hearing than in a criminal trial, and the prosecutor may present witnesses who will testify in favor of revoking your parole. Thus, it is imperative that you do not harm your case by communicating with police.

At Wallin & Klarich, we have helped people in a variety of criminal matters, including parole violations. Call us today at (888) 280-6839 or visit us at our website at www.wksexcrimes.com. We will be there when you call.

On November 19, 2010, San Bernardino officials stated that Jimmy Alfred Walker, a Barstow police officer, faces misdemeanor assault, hate crime, and disturbing the peace charges for an incident that occurred in August.

Sometime after midnight, the Hesperia Sheriff’s Department received a call from a 911 operator about a fight in progress. When sheriffs arrived at the scene, Walker was allegedly assaulting a man and a woman. Walker, who is white, also allegedly made racially insulting toward them. It is unclear what race the alleged victims were.

Walker has been placed on paid leave while police officials investigate the matter.

“An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (Penal Code 240.) An assault can be either a misdemeanor or a felony depending on the circumstances.

Disturbing the peace is a misdemeanor that includes unlawfully fighting in a public place, or being in a public place and using offensive words that are likely to provoke a violent reaction. (P.C. section 415(a), (c).)

Under Penal Code section 422.6(a), it is a crime to threaten or intimidate on the basis of their race, ethnicity, gender, sexual orientation, or other characteristics. (P.C. section 422.55.) Hate crimes can be either misdemeanors or felonies.

If you have been accused of a hate crime, do not speak to the police except to say that you will not answer your questions and that you wish to speak to your attorney. Being charged with a hate crime is a serious allegation and can be a crime in and of itself, or if another crime was committed because of the complaining witness’s characteristics, it can be used to profoundly lengthen your sentence. Thus, it is important not to talk to police, even if you believe that you can defend or explain yourself. Police are trained to use your statements against you, so do not give them more ammunition.

For over 30 years, the Southern California criminal defense attorneys at Wallin & Klarich have helped people accused of a variety of criminal matters, including hate crimes and assaults. 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 October 25, 2010, in People v. Graves, the California Court of Appeal reversed the trial court’s dismissal of appellant’s case even though, on the day of trial, the prosecution requested to trail beyond the statutory deadline without good cause.

On December 23, 2004, appellant Michael Graves was charged with misdemeanor battery against his wife and his mother-in-law. He did not show up to his original arraignment date and a bench warrant was issued; he was finally arraigned on June 30, 2008 while in custody and pled not guilty.

Trial was set for July 28, 2008. Under Penal Code section 1382(a)(3), a person in custody accused of a misdemeanor must be brought to trial 30 days after his arraignment or plea or the person’s case will be dismissed. July 28 was 28 days after Graves’ arraignment and plea.

Graves’ wife and mother-in-law considered the incident giving rise to the complaint a misunderstanding and did not wish to cooperate with the prosecution. On the record and at the request of the prosecution, the trial court ordered the wife and mother-in-law back to court on July 28, but the prosecution apparently failed to serve them with subpoena notices.

On July 28, the defense stated that it was ready for trial. The prosecution asked to trail the case—meaning to place the case at the end of the court calendar that day—because the complaining witnesses had not shown up and the statutory period within which a misdemeanor defendant must be brought to trial had not elapsed. The trial court refused to trail because the prosecution could not show proof that the subpoenas were served and, therefore, no good cause existed to trail. The court deemed the prosecution ready for trial.

Under Penal Code section 1050(a) and (e), in order to reduce case congestion in superior court, a continuance—or an agreement to reschedule a court date to a later date—in a criminal proceeding must be justified by good cause. However, failure to show good cause does not mandate dismissal of the criminal proceeding against the defendant. (P.C. section 1050(k)(1).)

After the court refused another request to trail, the prosecutor asked that the court dismiss the case on its own motion. The court refused the prosecutor’s request and denied the appellant’s motion to dismiss.

During voir dire, the prosecution announced that it would not participate in the trial proceeding. A jury was sworn and impaneled, but the prosecutor refused to give an opening statement and reiterated to the court his desire not participate.

During the defense’s opening statement, the defense attorney informed the jury that the prosecution had presented no evidence that appellant had committed the charged crime. At sidebar, the prosecutor again requested to trail the case and was again denied. Defense counsel moved for an entry of judgment of acquittal. The prosecution declined to be heard on the motion and appellant’s motion for entry of judgment of acquittal was granted.

The prosecution appealed to the appellate division of the superior court. The appellate division acknowledged that the statutory period had not elapsed at the time of trial and that a judge in open court had requested the alleged victims’ presence at trial, but appellant had been acquitted after a jury had been sworn and impaneled. Thus, the appellate division held that he could not be tried again because of the constitutional bar against double jeopardy.

The court of appeal reversed. The appellate court cited federal and state cases supporting the rule that jeopardy does not attach unless defendant had an actual risk of being convicted, even if judgment had been entered after a jury had been impaneled and sworn. The court of appeal stated that courts do not reflexively apply double jeopardy rules: they may look to whether a trier of fact had honestly and actually considered the factual elements of the case in analyzing whether prosecution is barred because of double jeopardy.

The court of appeal characterized the trial proceeding against appellant as a sham trial and concluded that jeopardy did not attach because there was no chance for Graves to be convicted under the circumstances at his trial.

Next, the court of appeal recognized the tension between the statutory deadlines in Penal Code section 1382 and the granting of continuances governed by Penal Code section 1050. However, the court of appeal cited analogous California cases supporting the rule that the trial court cannot dismiss a case if the 10 day grace period under Penal Code section 1382 deadlines has not elapsed, even if the prosecution did not show good cause.
Penal Code section 1050 states that continuances in criminal prosecutions will only be granted upon a showing of good cause, but the statute clearly states that a violation of section 1050 does not mandate dismissal.

The court of appeal remanded to the trial court so that the misdemeanor complaint could be reinstated.

If you or someone you know has been accused of a crime, you will need a skilled Southern California criminal defense lawyer who will vigorously defend you and who knows your statutory and constitutional rights. At Wallin & Klarich, we have helped people accused of crimes for over 30 years. Call us today at (888) 280-6839 or visit us at our website at www.wklaw.com. We will be there when you call.

Approaching the release of the highly anticipated video game, "Call of Duty: Black Ops," two men armed with semi-automatic weapons held up a Gamestop and made off with over 100 copies of the game.

The robbery took place on Saturday as the employees of the Baltimore-area gaming retail store was closing shop for the night. Although no one was injured, the bandits reportedly took cash, some video game consoles, and over 100 copies of the unreleased first-person-shooter. They then fled the scene in a white mini-van.

Having hit stores yesterday, "Call of Duty: Black Ops" retails at $60. Designed by video game developer, Treyarch, this first-person-shooter puts players in the boots of a foot soldier during the Cold War. In the single-player campaign, players can use an arsenal of weapons from that era to engage in battle missions based on actual historic events. With a mature rating, "Call of Duty" features graphic violence that includes ample amounts of blood and dismemberment.

This heist marks the second Gamestop retailer in the area to be robbed in anticipation of the release. The Hartford County Sheriff’s department believes that the incidents are related and are investigating the matter.

Robbery is a serious criminal offense in California that carries with it the possibility of heavy penalties and fines. Under California Penal Code 211, robbery is defined as the unlawful taking of another person’s property from their immediate possession or presence – against their will – with the use of force or threats.

Robbery is always prosecuted as a felony offense. The severity of the penalties will depend on the circumstances of the incident. If convicted of first-degree robbery in which you willfully acted with two or more other people, the penalty may result in a three, six, or nine-year sentence in state prison. Any other first-degree conviction may result in a three, four, or six-year sentence. Second-degree robbery, which includes all other circumstances in which the robbery does not take place in an inhabited home or commercial vehicle, is punishable by imprisonment for two, three, or five years in state prison.

A robbery charge is serious. It can lead to costly and debilitating consequences. If you are facing robbery charges, it is imperative that you seek the legal counsel of an experienced criminal defense attorney. At Wallin & Klarich, our Orange County attorneys have amassed over 30 years of experience in handling robbery cases and will put that experience to use in defending you in your case. Call us today at 877-466-5245 or visit us online at www.wklaw.com. We will be there for you when you call.

A recent ruling by the U.S. Court of Appeals for the Ninth Circuit, allows government agents to enter onto your property and plant a GPS device on your car without a warrant. According to this ruling, this does not violate your Fourth Amendment rights, because only individuals with gates, fences, or a no-trespassing signs can have a reasonable expectation of privacy in their driveway. The ruling on August 12, 2010 gives the government far more rights to use GPS devices to monitor peoples whereabouts.

The origin of the ruling began in 2007, when the Drug Enforcement Administration (DEA) entered onto Juan Pineda-Moreno's Oregon residence and attached a GPS tracking device to his vehicle. The DEA suspected Mr. Pineda-Moreno of growing marijuana, but he challenged the DEA's actions and requested the evidence obtained through the GPS be suppressed. In January 2010, a three-judge panel from the Ninth Circuit ruled that it was perfectly legal, leading to a further review by a larger panel of judges. On August 12, 2010 the panel let the ruling stand, explaining the "curtilage" a legal term for an area around a home- of this particular driveway was open to strangers such as the neighborhood children and delivery people.

The ruling however is likely to be appealed to the United States Supreme Court, since the District of Columbia Court of Appeals ruled on August 6, 2010 that GPS tracking for a extended period of time is an invasion of privacy and requires a warrant. The Supreme Court will likely have to determine which legal position to accept. Certainly people who care about the privacy rights of the people of our nation will hope that the Supreme Court adopts the view taken by the District of Columbia Court of Appeals. However, until and unless this ruling is changed you need to be aware that unless you park your car in your garage the government can without a warrant place a GPS tracking device on your vehicle to monitor everywhere you go.

If you or a loved one has been arrested, it is imperative that you hire an aggressive and experienced criminal defense firm that will fight for your constitutional rights to be upheld. Hiring an experienced criminal defense law firm can greatly increase your chances of winning our case. 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 877-466-5245 or go to our website at www.wklaw.com for more information.

It was recently reported that probation conditions prohibiting marijuana apply when the restriction of marijuana is reasonably related to a defendant’s current criminal case.

In December 2006, Thomas Theodore Brooks was arrested after being found in possession of cannabis and methamphetamine. The trial court placed him on formal probation for three years. One of the terms of his probations required that he not be in possession of illegal drugs unless on the recommendation of a physician.

In January 2009, Brooks was arrested again after two pounds of marijuana was found in his car during a traffic stop. Although he had a physician’s recommendation for medical marijuana use, he was arrested for possession of marijuana for sale because of the quantity of marijuana he had. Instead of being charged separately for this offense, the prosecution moved to revoke Brooke’s probation. A probation violation hearing was held the following month. Brooks testified that the marijuana was for his personal use and the quantity he possessed was justified because he cooked the marijuana into a variety of foods instead of just smoking it. His doctor also testified on Brooks’ behalf, saying the medical marijuana was recommended for asthma, irritable bowel syndrome, and shoulder pain.

The court, however, found that Brooks possessed marijuana for sale, not for personal use, thus violating the terms of his probation. The probation was then reinstated, but modified to prohibit Brooks from any use or possession of controlled substances. The court found that “the trial court has the discretion to impose probation conditions that prohibit even legal activity” and Brooks presented “no compelling reason for making an exception for medical marijuana.”

Possession of marijuana for sale is a very serious offense in California. California Health and Safety Code Section 11359 makes the possession of marijuana for sale a felony and those convicted can be punished by imprisonment for up to three years in state prison. Actual sales or offers to sell can result in a penalty of up to seven years in state prison. See California Health and Safety Code Section 11360-11361.

If you or a loved one has been charged with drug possession or sales, please don’t hesitate to contact the experienced drug defense attorneys at Wallin & Klarich. The defense attorneys at Wallin & Klarich have been handling drug cases in Southern California for more than 30 years and know how to aggressively attack the charges. Contact Wallin & Klarich today at (888) 280-6839 for an evaluation of your case, and visit us on the web at www.wklaw.com. We will be there when you call.

Pablo Santiago, age 21, was arrested recently by Carlsbad police after trying to get away from them by running. Santiago was allegedly driving under the influence of drugs when an officer spotted him driving erratically on the streets of Carlsbad. The officer attempted to pull Santiago over but Santiago sped away. According to the report by San Diego 10 News, Santiago later stopped the car, exited, and began to run on foot. Officers pursued him and finally caught him after he had fallen into a swimming pool and left them a water trail to track him down. Santiago is on parole and now faces the following charges in connection with this incident: suspicion of auto theft, possession of stolen property, evading officers, driving under the influence of drugs and violating parole.

Evading law enforcement in the state of California is a serious offense often connected with other serious charges like driving under the influence, as in the case above. Evading charges can be either a misdemeanor or felony. If other people were endangered due to the evasion, often the prosecutors will push for a felony evading charge. Potential consequences of a conviction include jail time, suspension of driver’s license, and substantial fines or probation.

If you or a loved one has been charged with multiple crimes like evading police and DUI, it is vital that you contact an experienced San Diego Criminal Defense attorney as soon as possible. An experienced and knowledgeable San Diego Criminal Defense attorney can start investigating the facts of your case right away to look for opportunities for dismissals or reductions to your criminal charges. At Wallin and Klarich, our San Diego Criminal Defense attorneys have expertise in all areas of criminal defense in order to provide you with the best legal counsel and advice. Contact us today.

In upholding 18 criminal case dismissals, a ruling passed down by the California Supreme Court unanimously rejected Riverside County District Attorney Rod Pacheco’s argument that that all available courtrooms should have been converted to help deal with the severe backlog of criminal cases that were awaiting trial.

The backlog of pending criminal cases in Riverside County was so overwhelming that a number of them had been dismissed due to the state’s inability to meet speedy trial deadlines.

In 2007, a Judicial Council task force found that one in four of the county’s jail inmates had been awaiting trial for more than one year. Of those inmates, 127 have been waiting for more than two years, and 32 have been waiting for their trial for over four years.

Pacheco argued that the state should have done more to prevent the 18 criminal cases, including a felony burglary charge, from being dismissed due to the failure to prosecute in a timely manner. He stated that because state law gives preference to criminal cases, courtrooms normally reserved for civil or juvenile law matters should have been utilized to hear criminal trials.

The Supreme Court disagreed, stating that the law does not require courts to devote all of their resources to criminal cases and that the burden is on the state to begin trial in a timely manner. The Court ultimately ruled that the dismissals were proper, adding that a chronic lack of resources is not a valid excuse for failing to meet speedy trial deadlines.

A criminal defendant’s right to a speedy trial is an inalienable right guaranteed in the 6th Amendment to the United States Constitution. By virtue of California state law, any failure of the prosecution in honoring this right can result in a complete dismissal of the case. Therefore, it is very important that you have an attorney who will ensure that your rights are being adequately represented.

At Wallin & Klarich, our Orange County attorneys have been diligently providing our clients with personalized legal services for over 30 years. We will work hard to not only help you raise the best possible defense in your case but to also ensure that your rights are not violated. Call us today at 877-466-5245 or visit us online at http://www.wklaw.com/. We will be there for you when you call.