Southern California Defense Blog

Individuals are often confused by the distinctions between appeals and Writs of Habeas Corpus. The latter, translated “you shall have the body” is in many instances used when a person convicted of a felony seeks to have his case reconsidered. Whether a person should file one or the other, or indeed both, is a matter that can be rather complicated. Both are used in the appellate process.

In a nutshell, one may think of the difference between a Writ of Habeas and an appeal as whether the issue is within the file of the case file or outside of it. As such, an appeal can be filed if it is believed that a legal error was made at the trial. New evidence may not be brought in. For an appeal to be considered, then, the issue must relate to some error in pre-trial motions or at trial. Generally all of the following must apply:

• The trial judge committed an error;
• The defense lawyer objected to the error at the time;
• The error harmed the defendant.

An appeal is made within a limited time after sentencing. An individual is required to file a Notice of Appeal within 60 days if convicted of a felony or 30 days if convicted of a misdemeanor.

Four outcomes are possible in an appeal: the conviction and sentence can be affirmed; the defendant may be granted a new trial; the sentence can be overturned, and a new sentencing hearing ordered; or the conviction can be overturned and the case cannot be retried.

A Writ of Habeas Corpus, by contrast, can be brought for new evidence. It is, then outside of the file. Such an issue, by its nature, could not have been made on direct appeal. Most Writs are brought when a defendant believes he received ineffective representation by his attorney. A Writ may also be brought if an individual loses his direct appeal. Generally the issue must relate to a denial of a constitutional right. If an individual fails in a Writ of Habeas Corpus he may be able to file an appeal in Federal court.

Whichever avenue you take, the appellate process is complex. It is very important that you hire a Los Angeles criminal defense attorney to assist in navigating the waters of appeal. The attorneys at Wallin & Klarich have the experience and expertise you need to ensure your best chances. Call us today for a consultation at (888) 749-0034.

Shoplifting in Orange County is so common that many people who otherwise consider themselves upstanding citizens have committed an offense at one time or other. Just switching a price tag with another from a less-expensive garment is stealing. Indeed, some minor offenses may not even seem unethical to many. However, shoplifting is serious, and can carry harsh penalties.

Shoplifting is an equal opportunity offender. Individuals from every background imaginable are caught. Even movie stars shoplift, as evidenced by troubled actors who have made the headlines in recent years. According to the National Crime Prevention Council, approximately 25% of shoplifting arrestees are 13-17 years old. Adults account for the remainder, and, surprisingly, a large percentage of shoplifters are employees.

Indeed, the Wall Street Journal reports that 75% of employees have stolen at least one time. The loss for stores just from employees amounts to as much as $50 billion annually, according to the U.S. Chamber of Commerce. Employees naturally have an advantage among shoplifters. They know something about store security measures, and have access to areas the public doesn’t. What would motivate an employee to shoplift? Temptation certainly is a factor. Working around products one desires to own but cannot afford can lead an employee to become bitter about his paycheck. This is a mere step away from taking the item, rationalizing that he has earned it.

Teenagers often shoplift out of a desire to own what they can’t buy as well. Peer pressure for young people can be acute, and may lead them to rash acts they otherwise would never consider. However, another surprising motivation for teens caught shoplifting is boredom.

Adults, similarly, shoplift for often surprising reasons. The stereotype of the poverty-stricken woman stealing a loaf of bread to feed her starving children does not hold as a general motive in reality. While desiring an item certainly is many times a factor, adults often cite that they were reacting to the pressures of daily living. Somehow shoplifting gives them a kind of psychological relief.

Many shoplifters even suggest that they experience a “high” from the experience which has been compared to the effects of a substance such as methamphetamine. Individuals have recounted that they began shoplifting out of need, but continued because of the pleasure it provided. In some cases they actually become addicted.

It is difficult to imagine that a jail sentence will benefit a person who shoplifts under such a circumstance. Yet the penalties do not generally work to assist defendants in overcoming their habit. Rather, for an offense that involves less than $950, the defendant may be charged with petty theft and, if convicted, given a fine up to $1,000 and a maximum six months in jail. For items totaling more than $950 the charge is grand theft, a felony which carries a maximum one year in state prison.

Whether a person is charged with petty or grand theft, it is almost always in his best interests to hire a Los Angeles attorney who can help clear him. If you are so charged, the attorneys at Wallin &Klarich may be able to help. We have over 30 years of experience assisting individuals with their legal issues. Call us today at (888) 280-6839.

Yesterday a 20 year old young man by the name of Robert came into my office. He was brought to our country by his parents when he was 2. His parents struggled to find work and somehow their young boy was able to eat 1 or 2 meals a day. He worked hard at school and graduated from high school with a 4.2 GPA. All he wants to do is go to college and become a lawyer.

...The problem is our country chooses to treat him as some sort of criminal. He cannot receive a scholarship since he is not here "legally". In the state of California, he cannot obtain a drivers license in order to purchase or drive a car. He walks miles a day to 3 different jobs (where he can find someone to let him work) so he can try to save up enough money to pay the rising tuition at a junior college. Daily he worries that he will be stopped and "found out" and be sent back to a country that he does not know.

How can Americans call themselves "caring people" when we allow this to happen. What crime did this young man commit? His parents cared enough about their 3 sons to risk their lives to get to California so their children could have a better life. Should his parents be imprisoned for wanting the best they could find for their sons.

It impossible for me to understand how any person who cares about human beings would not want to do everything in his or her power to help this young man and thousands like him obtain a college education and be productive members of our society.

How can anyone support a presidential candidate, such as Mr. Romney who has clearly stated that he wants to send this 20 year old boy back to a country where he has no connection, no family, nothing, after he has been in our country doing all he can to survive for 20 years? Does this sound like a position that a compassionate man would take!!??

The overall answer to our current immigration problem is a difficult one. However, as Americans we should never forget that we are a compassionate people who care about others.
During WWII a boatload of Jewish children and mothers were able to escape a concentration camp and asked for our country to accept them when they approached Florida. Our country sent them back to die in the concentration camp. We cannot forget these type of acts and try to learn from them.

Please do everything you can to support the DREAM ACT, which would permit young men and women like Robert to no longer live in the shadows, to get a college education, and to live the dream that all Americans would want for their children.

California roads and highways are frustrating places to be nowadays. Myriad drivers sit in traffic each day during their commutes to work or school. Minutes snail by, drivers honk or attempt impossible lane changes, pedestrians on the shoulder of the road pass by. Maintaining equanimity under such circumstances can be monumentally difficult. And as drivers lose patience, are late, just feel they can’t take it anymore, they sometimes make rash decisions that can cost them dearly. Road rage has a price.

Using one’s car against another can be construed as assault with a deadly weapon. An incident some years ago occurred on a Los Angeles freeway involving a big rig operator who snapped in heavy traffic, driving on ahead and plowing through the mass of cars. He was arrested for assault with a deadly weapon, and probably lost his right to drive permanently, not to mention his job.

The punishment for assault with a deadly weapon can be severe, indeed. Often individuals are sentenced to state prison and slapped with hefty fines. Even when they are released their problems are not over, either. They will find they can no longer drive in California. Ever.

California Penal Code 245 mandates that individuals who receive felony convictions for assault with a deadly weapon using a motor vehicle lose their driving privileges. The DMV by law must revoke a person’s license, and “shall not reinstate a privilege revoked under any circumstances. As such, an individual convicted of the crime will face a lifetime revocation of driving privileges.”

Such a penalty can make getting to work or school problematic. Forget taking that driving trip to Yosemite. Don’t even think of driving your daughter to her softball game or dentist appointment.

The price of a moment’s indiscretion can cost you for a lifetime. So what do you do? It certainly doesn’t appear that roads are going to become less congested. Ultimately, you need to take measures that will ensure you don’t become one of the many who can never drive again in California. Learn relaxation techniques; listen to calming music; get lots of exercise in your spare time; leave for work early or try to change your schedule.

If you are charged with assault with a deadly weapon, particularly when it pertains to the use of a vehicle, you need an aggressive criminal defense attorney in your corner that will fight to help you keep your license and your freedom. The attorneys at Wallin & Klarich have over 30 years’ experience successfully defending people like you. Call us today at 1-888-280-6839.

Today’s so-called Smart Phones hold a great deal of information that has little relevance to phone calls. As such, some argue that police should be required to obtain a search warrant before inspecting the contents of a cell phone. They submit that obtaining evidence from cell phones without a warrant amounts to a violation of the Fourth Amendment protection against illegal search and seizure.

Our forefathers lived in a time predating even the most rudimentary communications devices by over a hundred years. How they would have regarded right to privacy issues with cell phones, then, can only be speculated upon. Case precedent, interpretation of the law, and higher court rulings must be relied upon for this reason. A case from 2007 has left many with continued questions, however, about the rights of an arrestee in regard to his cell phone. The lines have been drawn, and people are divided.

The case in question involves the arrest of an individual in 2007 for purchasing methamphetamine from a police informant. Upon the defendant’s arrest officers seized a cell phone they found in his pocket. Following an unproductive round of questioning a DEA agent searched the cell phone and found incriminating evidence. The defendant was ultimately convicted, and his case was appealed.

The California Supreme Court ultimately ruled that the search was lawful, indicating, “in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.” The court went on to suggest that police have the right to search anything found on the defendant’s person at the time of arrest. Moreover, they do not have to conduct the search immediately. The evidence may be obtained at a later point, such as during questioning.

The implications are interesting. That your personal phone and text data can be used against you, and police do not need a search warrant to obtain them from your electronic device, suggests that warrantless searches of any electronic device are permissible. Those unhappy with the decision vow to take the issue to the U.S. Supreme Court.

If you have been arrested for a crime, it is in your best interests to hire a strong and experienced attorney. Call the Law Offices of Wallin & Klarich today for a free consultation at 1-888-749-0034.

Let’s face it – if you have been convicted of a crime in California, your prospects for employment are significantly diminished. That pair of shoes you shoplifted twenty years ago could haunt you every day. Until recent years, however, prospective employers and others were unlikely to obtain this information unless it was offered. Unexplained gaps in verifiable employment would likely have been the only tell-tale sign. The Information Age has changed all that, but there may be a way out.

The advent of the Internet has led to an unprecedented gathering of information about criminal convictions. For just a few dollars anyone can obtain information about any offenses you may have had in the past. However, attorneys at Wallin & Klarich may be able to help. California Penal Code 1203.4 allows for expungement of certain crimes from an individual’s record.

In a nutshell, expungement is a process by which a petition is made to the court to review your conviction, set aside the conviction, and dismiss the case. To qualify, you must meet certain criteria:

• You must have successfully completed any probation associated with your conviction.
• You must have paid all fines and restitution.
• You must have completed court programs that were assigned. You cannot be “about to finish” that Anger Management class.
• You cannot currently be on probation for any criminal offense.
• You must not have been sent to California state prison for the conviction.

A person is also ineligible for expungement if he has a conviction for certain sex crimes involving minors, including PC 286(c), 288, 288a9c), and 261.5(d).

Provided none of the exclusions detailed above apply to you, you should be able to have your record expunged. The most significant benefit is that, while records may still show that you were arrested, an employer is not allowed to use this information in deciding to hire you. Section 432.7 of the Labor Code prohibits an employer from even asking about information regarding the arrest if you were not convicted.

If you were previously convicted of a crime, and believe you qualify to have it expunged based on the criteria above, you owe it to yourself to hire a competent firm to handle your situation. The attorneys at Wallin & Klarich have over 30 years of experience in handling matters such as yours. Call us today to begin the process of cleaning up your record at (888) 280-6839.

About 90% of all criminal cases in the U.S. are settled by plea bargain. Given the number of cases being heard in courts these days it would be difficult to imagine our legal system bearing the burden of full jury trials in every case. But is justice really served when a prosecutor and defendant enter into such an agreement? Are courts allowing financial and logistical difficulties to dictate how the system operates?

There is, indeed, a great deal of controversy regarding plea bargains. One judge in a small Alaska county disallowed them completely. Many in other countries can’t understand them, especially when their own justice system does not include plea bargains as an option to trial. The United Kingdom’s Human Rights Act of 1998 criticizes its use, arguing that rewards, threats, and potential coercion undermine the foundation of justice.

A further argument against plea bargains is that they don’t so much reflect true justice as act as an expedient way to clear court dockets. Plea agreements between defendants and prosecutors, as such, amount to a sort of barter – give up your constitutional rights, and I will go easy on you, so to speak.

However, such arguments are viewed as cynical to many who work with defendants and prosecutors on a daily basis. Clearly there is a benefit to be reaped by both under such an agreement. Absent coercion, a defendant has the right to reject an offer. He may, however, see it as his best option. Similarly, it is difficult to imagine that a prosecutor would make an offer when he has a clear avenue to conviction. Indeed, often plea bargains are made when the prosecution knows that a conviction may be problematic if the case is taken to trial.

Justice can become muddled, however, if a defendant is not aware of his rights. He may not be aware from the outset that the prosecution carries the burden of proof beyond a reasonable doubt. Further, without the assistance of a criminal defense attorney he may not be aware that a plea agreement entails surrendering his legal right to a jury trial.

Whether plea bargains ultimately sustain our justice system or work to diminish it is an argument that will continue. However, it is clear that they serve a purpose that can help both defendants and prosecutors, as well as relieve courts of what would otherwise be a formidable burden indeed.

Whether a plea bargain being offered to you in your specific case is in your best interest depends upon many factors. Once you accept a plea bargain you will likely never be able to withdraw it. It is critical that you seek a “second opinion” from an experienced criminal defense law firm like Wallin & Klarich to help you determine whether you should accept the plea bargain or go to trial.

If you are facing criminal charges, it is essential that your rights are protected. Securing the services of a knowledgeable criminal defense attorney is essential for this purpose. The attorneys at Wallin & Klarich have over 30 years of experience in criminal defense. Call us today at 1-888-749-0034.

Quite often these days jury trials are broadcasted. Indeed, viewers are even privy to issues over which jurors are removed from the courtroom, such as evidentiary matters which might otherwise bias those who ultimately will determine the defendant’s fate. And when the verdict is read, often viewers are baffled by the jury’s decision.

It is fine to make independent judgments about trial evidence from home, but as a juror you are bound to a strict standard. In fact, there really can be no more important role for a juror than to follow procedures to the letter. If you have ever been selected for duty as a juror, or even were part of a pool of potentials, you have been given strict instructions on conduct.

A juror is admonished to listen to all the testimony, and consider all evidence without bias. Under no circumstances is it ever acceptable to investigate issues independent of the other jurors. Media coverage, including news articles and editorials, is to be avoided. High-profile case juries are often sequestered for this very reason. Even discussions about the case with family or friends can unduly influence a juror. Indeed, jurors are not even allowed to discuss the case with each other until they enter into deliberations. Only then has the case been handed over to them by the judge for consideration, with detailed and explicit instructions on how to conduct deliberations:

“You must decide all questions of fact in this case from the evidence received in this trial and not from any other source. When a witness has testified through a Certified Court Interpreter, you must accept the English interpretation of that testimony even if you would have translated the foreign language differently. You must not independently investigate the facts or the law or consider or discuss facts as to which there is no evidence. This means, for example, that you must not on your own visit the scene, conduct experiments, or consult reference works or persons for additional information. You must not discuss this case with any other person, including, but not limited to spouses, spiritual leaders or advisers, or therapists, except a fellow juror during deliberations when all twelve of you are together in the jury room, and then only after the case is submitted to you for your decision and only when all twelve jurors are present in the jury room.”

The value of juries in maintaining a just legal system cannot be overstated. However, only when jurors conduct themselves in strict accordance with the rules and instructions governing their position can fairness prevail.

For anyone facing a criminal proceeding, the importance of a fair jury takes on an even greater dimension of importance. If you or a loved one is facing a legal matter, you need the assistance of a criminal defense team that is both experienced and aggressive. Call Los Angeles criminal defense attorneys Wallin & Klarich for an evaluation of your case at 1-888-280-6839.

Let’s face it. Courts make mistakes. Sometimes sentences that are handed down are too harsh. Prosecutors, and even jurors, may engage in misconduct. Evidence can be admitted wrongfully, and laws are occasionally applied incorrectly. And any of these reasons can be grounds for filing an appeal in California.

Unfortunately, however, the appeals process can be complex and slow, given to tight time constraints followed by months of waiting. If you wish to file an appeal for a felony, you have only 60 days from the date of your sentencing to do so. For misdemeanor convictions the window of opportunity closes even sooner – 30 days from the date of sentencing. Missing the deadline precludes you from being able to exercise an important right.

The first step in filing an appeal is to secure the services of a seasoned appellate attorney such as you would find at Wallin & Klarich. Your attorney will thoroughly review your case file, after which he will file an opening brief. This will detail any legal issues in your case that offer grounds for a new trial.

Under the provisions of California Penal Code 1237, one can appeal both errors that occur during the trial, itself, and the sentencing. The appellate court has the power to reverse the guilty verdict and order that you be given a new trial. It may also determine that the sentence that was imposed was too harsh, and send your case back for re-sentencing.

All the above takes time. You may become frustrated as months pass without any seeming progress in your case. If this occurs, remember that a strong appeal takes time to develop. Moreover, appellate courts tend to be weighed down with cases awaiting consideration. It may help to keep in mind that the right of appeal is one of the great safeguards in our system, and that it may be your opportunity for a new trial.

If you have been convicted of a crime and wish to appeal, the Law Offices of Wallin & Klarich are here to help you. We have over 30 years of experience handling appellate cases. Call 888-749-0034 for a review of your case.

Even after an accused is found guilty, his criminal defense lawyer must competently represent him at his sentencing hearing. In many cases a judge has great discretion at the sentencing hearing of an accused found guilty of a serious felony. In some cases the court has the power to sentence a defendant to decades in prison or can decide to place the accused on probation.

In the case before the court - the case in question - the defendant was found guilty of murder and was sentenced to death. All of the state courts had turned down his appeal. However, after many years the 9th circuit federal court of appeals reversed his death sentence. The court ruled that his lawyer provided inadequate legal representation by failing to properly investigate his clients background to present to the court at his sentencing hearing.

After a jury has returned a guilty verdict, the attorney must become creative and do everything possible to convince the judge to impose a probationary sentence. The prosecution will be asking for a lengthy prison sentence or even the death penalty in some cases. If your lawyer is not prepared with critical information to provide to the judge, your are very likely going to receive a very harsh sentence.

If you would like to discuss your serious case with the criminal defense attorneys of Wallin and Klarich, feel free to call us at (888) 280-6839. We will be there when you call!!!

Know your rights in case of an infraction. This case that we debated on Fox News is a great example of an officer abusing the constitutional rights we all have when it comes to traffic stops. In order to make a traffic stop an officer must have probable cause to believe that a violation of some sort took place---whether an infraction, misdemeanor of a felony.

In this case, the officer initially indicated he saw the “trekkie” Mr. Huff’s vehicle swerve within two lanes of the road. When both passengers denied that, he seemed to change his story to stopping the car because it was driving in an are where there was a great deal of gun and drug trafficking. The first excuse for the stop, if true, would have established probable cause. The second did not.

After a lengthy conversation, the officer then told Mr. Huff he was going to search his vehicle apparently because the passenger in the vehicle “looked nervous”. Absent anything more, that does not sufficient legal cause to search a vehicle. The officer, who had a history of this type of behavior, clearly violated the Fourth Amendment rights of the men---rights to be free of unlawful search and seizure.

If you are stopped by an officer, be cooperative, but document to the extent possible everything the officer does and/or requests of you. Remember, as the video here proves, most officers may know general police procedure, but they are not schooled in many of the constitutional requirements of the 4th, 5th and 6th Amendments! When your freedom---on any level—is at stake because of a stop, search and seizure by law enforcement contact the California Criminal Defense Attorneys of Wallin & Klarich at (888) 280-6839…we are experts in dealing with all types of criminal and traffic charges!

The question the court faced was whether the police needed to obtain a search warrant when they smell a strong odor of marijuana coming from a hotel room. In a decision that will be very good news for all persons who smoke marijuana in the privacy of their home or in a hotel they may visit, the court of appeals threw our the defendants convictions and ordered that all of the evidence seized during the search of the hotel room must be suppressed. Without this evidence the cases will have to be dismissed.

The courts decision was based upon the fact that the marijuana possession of less than 28.5 grams is a “non-jailable” offense. This means it is not a serous offense and thus the police cannot claim that they must be allowed to enter your home or hotel room without a warrant in order to seize this evidence. The court reasoned that since all the police can do if they in fact find you in possession of less than 28.5 grams of marijuana is issue you a citation there is no “emergency” so great that would allow the police to enter your residence or hotel without first obtaining a search warrant.

Why is this so critical to those persons that want to be free from unlawful searches and seizures of their home and property under our constitution? It is so important because police have been using the “smell of marijuana” coming from the residence excuse to unlawfully break into peoples home for decades. The “risk’ of harm when police storm into your home is great. Often police will handcuff everyone they see in the home and they will conduct a search of your entire home looking for anything “unlawful” they might find. With this court having the guts to see through this police “ploy” this will no longer work for law enforcement when they would like to enter your home or hotel room to attempt to find evidence so they might arrest you.

While this is good news for those that smoke marijuana in their homes or in a hotel room, it is even better news for the people of our state and nation who will no longer have their constitutional rights violated by this unlawful police conduct.

We would like to know how you feel about this. If you are facing a criminal case and would like our help as to a possible search and seizure issue feel free to call the criminal defense attorneys at Wallin and Klarich at 888-280-6839. We have been helping people fighting for their freedom for over 30 year and we will be there when you call.