Southern California Defense Blog

The criminal appeals process in California begins when you file a Notice of Appeal. If you have been convicted of a felony you have 60 days from the day you were sentenced to file a Notice of Appeal. If you were convicted of a misdemeanor you have 30 days.

Your appellate lawyer will then prepare an Opening Brief, which is your first opportunity to explain why your conviction at the trial level should be reversed. The Attorney General will then have the ability to file a Respondent Brief which responds to the issues presented in your Opening Brief and provides reasons why the prosecution thinks your conviction should be upheld. You also have the ability to file a Reply Brief as a response to the Respondent Brief.

After the briefs have been filed the Court of Appeals will offer an opportunity for the appellate lawyers to participate in an oral argument. At the oral argument your appellate lawyer can work to persuade the Judge to reverse your conviction.

If you are unsatisfied with the results of the appeal you may petition the Court of Appeals for a rehearing. If the Petition for Rehearing is denied you then have the option of filing a Petition for Review with the California Supreme Court.

The criminal appeals process can be lengthy and technical. Further, criminal appeals are difficult to win in California. It is important that you contact an experienced criminal appeals attorney to assist you to appeal your criminal conviction. The attorneys at Wallin & Klarich have over 30 years of experience successfully representing clients in criminal appeals. Contact us today at 1-888-280-6839 or visit us online at www.wklaw.com. We have offices in Los Angeles, San Bernardino, Riverside, Ventura and Orange County. Let us show you how we can get through this together.

A defendant, Tyrone Miles, claims ineffective assistance of counsel by alleging that his attorney advised him to reject a plea offer of six years without alerting him that his crime was a third strike and punishable up to 25 years to life in prison. He later entered an open plea and the judge sentenced him to 25 years to life in prison.

In 1993 he participated and was convicted of 2 robberies, and went to prison for three years. In 2005, he picked up a case involving second degree burglary, forgery and cashing fictitious checks, with an allegation of two prior strikes, which were the 1993 robberies.

Lawrence Meyer was appointed to represent Miles. Meyers and Miles met on at a bail hearing and the next time at the preliminary hearing. There was no agreement reached and the case moved to superior court where the information was filed. He was offered a plea admitting the two prior strikes and would not be precluded of raising a motion to strike one or more of the strikes, called a Romero motion. The judge informed him that if he made this deal, “25 to life is probably what you are going to get”. Miles pled guilty anyways.

The trial court declined to strike the prior strikes and sentenced him to 25 to life. Miles alleged that when he met with Meyer, that there was a six year offer he could have accepted. However, Miles alleges that Meyer encouraged Miles to reject the offer and negotiate further. Miles alleges if he knew his exposure, that he would have accepted the deal. Miles alleges that he was never told by Meyer that he was exposed to 25 years to life in prison.

The Court Of Appeals, found that Meyer performed deficiently. The standard for ineffective assistance of counsel is to show that counsel’s performance was deficient and that the defendant was prejudiced. Strickland v. Washington,(1984) 466 U.S. 687. The Court found both of these conditions to be true and reversed the decision and remanded the case back to the trial court.

If you or a loved one is facing any criminal charges, contact the criminal defense attorneys at Wallin and Klarich. We at Wallin and Klarich have many years of experience successfully defending people charged with all crimes. We will work to aggressively defend you by investigating all aspects of your case. We will work to ensure that your rights are protected and that you clearly understand the legal process. The attorneys at Wallin & Klarich can be reached by phone at 888-280-6839 or through our website at www.wklaw.com. We will be there when you call.

A prime example of why you should never give up if you believe you were wrongfully convicted of a crime by a jury is the case of People vs. McDonald.

McDonald was a decorated Vietnam war veteran who was accused of brutally murdering his wife and two young girls to death. He was tried by a federal jury and was found guilty of murder in 1979. That was 32 years ago.

McDonald has denied his guilt from the first day he was advised of the accusations against him. He was so strong in his commitment to his innocence that he has refused to consider being paroled because he would have to go the parole board and admit he committed the crimes.

All of his appeals were denied and in 1982 the United States Supreme Court turned down his appeal. However, Mr. McDonald has refused to quit because he believes he is innocent.

In fact, a federal court has granted him a new hearing based upon some DNA evidence that was discovered in 2006. This evidence involves DNA findings that were taken from the hair of one of the his daughter body that definitely does NOT match McDonald. There are other issues before the court that deal with federal prosecutor misconduct allegations.

The federal judge will decide whether this new evidence warrants giving McDonald a new trial. If the judge decides to grant him a new trial it would be up to the prosecutors to attempt to retry him for the murders or to set McDonald free.

If anyone in you or a loved one has been convicted by a jury of a crime and you believe that their rights were violated you should contact Wallin and Klarich who can review the history of the case and help you determine if there may be legal grounds to attack the conviction. As the McDonald case proves, it is possible in some cases to challenge your conviction 32 years later.

We will keep you posted as to developments with this case to see if McDonald is granted a new trial based upon this new DNA evidence.

Call us at 888-280-6839.

Death Penalty is Costing Tens of Millions of Dollars while we are Sinking Further into Debt

There’s one question that our Los Angeles criminal appeals attorneys at Wallin & Klarich keep thinking about in regard to the death penalty: when will the California legislature put an end to the death penalty in California?

This past week the California Supreme Court decided that a man who has been on death row for almost twenty years should receive a new competency hearing and likely a new trial. For almost twenty years the taxpayers of California wasted a tremendous amount of money to keep this man on death row. Now, after almost twenty years, the court is giving this guy a new hearing. Does this sound nuts to anyone else?

How can it take close to 20 years for the highest court in our state to reach this conclusion? If this defendant was in fact denied a fair trial, why wasn’t that decided 18 years ago? The answer is that our criminal justice system is completely broken when it comes to death penalty appeals.

It often takes years for the court to find a lawyer willing to take on a death penalty appeal. The appeals take literally hundreds of hours to prepare by any competent appellate lawyer. Additionally, the Attorney General must reply and that takes a tremendous amount of time. Then, the defendant’s appellate lawyer can file a reply brief.

This year alone four different death penalty verdicts have been overturned. In each of those cases, the decisions have come years after the original conviction. It was reported two weeks ago that Scott Peterson’s appellate lawyer finally filed their opening brief eight years after Mr. Peterson was sentenced to die.

This is not justice. Justice should be fair, but it also should be swift so both the accused and the victims can have a resolution of the legal matter. The current death penalty law in California must be tossed out.

In November of this year California voters will have a voice. They can either continue to allow this craziness to go on, or they can do the right thing for everyone and say we no longer can “afford” the luxury of “attempting to execute” people for crimes they commit in California. This is both a moral and economic issue. The United States is one of the few civilized nations that permit the death penalty. California is billions of dollars in debt, and we are spending millions on keeping death penalty inmates segregated while in custody. We are paying millions of dollars to lawyers (when we can even find them) who spend years acting as appellate lawyers for death penalty inmates. What makes it even worse is in the last eight months four death penalty convictions were reversed. This means the District Attorneys in these cases may try them all over again, which will cost even more money the state doesn’t have.

We sure would like to know your feelings on this important topic.

The California criminal defense attorneys at Wallin & Klarich count with over 30 years of experience defending clients facing all types of criminal charges. If you or a loved one has been accused of a crime in California, please call Wallin & Klarich today at 888-280-6839 to receive our immediate assistance. We’ll be there when you call.

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.

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!!!

The Court of Appeal reversed a defendant’s conviction for driving under the influence of marijuana after the trial court failed to properly instruct the jury on defendant’s theory of defense. The defendant was charged with driving under the influence of marijuana, causing injury, and driving with a suspended license.

At trial, the defendant argued that he was not under the influence of marijuana and lost consciousness as the result of his low blood sugar condition. The court failed to instruct the jury on “unconsciousness” and the jury found the defendant guilty. The defendant’s appeals attorney argued that the trial prejudicially and erroneously failed to instruct the jury on the defense of unconsciousness and that the instructions prevented the jury from considering his defense.

The Court of Appeal held that the trial court has an affirmative duty to give instructions on a defendant’s theory of defense where it is obvious that the defendant is relying upon such a defense, or if there’s substantial evidence that supports it.

This duty requires the court to tailor the instruction to the particular facts of the case. The Court of Appeal explained that the defendant was clearly relying on involuntary unconsciousness as a defense. The evidence and testimony at trial involved discussion of defendant’s unconsciousness and low blood sugar. His defense clearly asserted that he should not be found guilty because he passed out due to low blood sugar, and there was sufficient evidence to support his defense. As a result, the court’s failure to instruct the jury on unconsciousness effectively removed the defendant’s principle defense from the jury’s consideration.

In a case that is going to affect millions of individuals, the Supreme Court has voted 5-4 in favor of allowing criminal defendants who received bad advice during pre-trial plea agreements to have the sentences overturned. Having taken over hundreds of cases bungled by public defenders, our criminal defense lawyers are all too aware that this decision will have massive implications here in Southern California and beyond.

Given today’s economy, more and more people are turning to public defenders to handle their criminal cases. Unfortunately, this means that the public defender’s office is often overwhelmed and does not have the resources to devote the individual attention to each and every case. In order to lighten their case load, a public defender is much more likely to plea bargain without the best interest of their client in mind. This often results in defendants taking less than optimal plea agreements.

According to statistics, 97% of all federal convictions and 94% of all state convictions stem from guilty pleas from defendants who opted for a deal rather than a trial. Needless to say, there are millions of people who will be contacting an appeals attorney to see if they can get their conviction overturned.

The Supreme Court’s ruling stems from two separate cases in Michigan and Mississippi. In one case, the defendant rejected a plea deal due to the fact that his criminal defense attorney assured him that the prosecution would lose their case if it went to trial. The defendant was found guilty on all counts. The second case involved a defendant whose attorney failed to present him with two separate plea offers. The defendant eventually pled guilty to all charges and was sentenced to 3 years in jail, much more than the original plea offer.

What do you think? Will this ruling flood the courts with frivolous appeals or will it help to reduce the overcrowding in our jails and prisons?

As we reported a few weeks ago, a California appeals lawyer is trying to get Sirhan Sirhan, the man convicted in the assignation of Robert Kennedy, released from prison, or at the very least get him a new trial. Amongst other things, the appeals attorney is not only citing new analysis of an audio recording, but according to documents released by the courts, is also claiming that the prosecution in the original case used substitute bullets instead of the actual bullets pulled from Kennedy and another survivor.

The use of substitute bullets alone could be seen as grounds to grant an appeal, and the California Attorney General even conceded that Sirhan’s appeals attorneys might be able to prove that there was indeed a second gun involved in the shooting. However, they argue that there is no need for a second trial as Sirhan’s conviction was based heavily on eyewitness testimony rather than ballistics evidence.

The most controversial aspect of Sirhan’s appeal is the notion that he was hypnotized into the attempted assassination. For years, Sirhan maintained that he had no recollection of the shooting. While hypno-programming is a real thing, many people view the notion as a bit too conspiracy theory to be rooted in reality. That said, a Harvard psychologist claims to have resurrected Sirhan’s memory of the shooting and claims that Sirhan believed he was actually shooting at paper targets, not Kennedy, on the day of the assignation.

Whether or not Sirhan is granted an appeal, and ultimately a new trial remains to be seen. If Sirhan was to be granted a new trial, the new evidence would raise more questions than answers in what is one of the most infamous days in US history.

Aside from Nicolas Cage using a traffic camera to help him decipher an ancient Olmec tablet in National Treasure 2, those little cameras mounted next to traffic lights have caused nothing but headaches for people. Today, the 2nd District Court of Appeal dealt a heavy blow to the validity of those traffic cameras in all future cases.

Before we get into the decision, we need to rewind just a bit. Annette Borzakian, an attorney in Beverly Hills was issued a ticket after a traffic camera allegedly caught her blowing through an intersection. The validity of these traffic camera tickets have been fought, and deemed nearly unenforceable. But Borzakian took it one step further by asking for an opinion to be written on traffic cameras that can be cited in any traffic court in California from now on.

The opinion essentially states that the police officer who ultimately issues the ticket is not an expert on the technology involved in the traffic cameras, and as such, the officer has no credibility. This means that photos and videos of the incident are inadmissible in traffic court.
The written opinion affirms a 2010 case in the same jurisdiction. (People vs. Khaled 30-2009-304893)

In short, this means that it will be virtually impossible for any jurisdiction in California to enforce a traffic camera ticket without bringing in the manufacturer of the traffic camera to testify. Of course, if you don’t know the law, local law enforcement might try to pull a fast one and get you to pay that ticket anyway.

So share this will all of your friends and tell your family. You might end up saving them a few hundred dollars.

One of the most infamous assassinations in US history is making headlines agains as a California appeals attorney is trying to get the man found guilty in the assassination of Robert Kennedy a new trial. Kennedy, the younger brother of JFK was shot and killed in the kitchen of a Los Angeles hotel in 1968. His assassin, Sirhan Sirhan, still sits in prison.

A little known audio recording of the actual assassination has been analyzed by an acoustics specialist, and that specialist has determined that at least 13 shots were fired during the attack. Sirhan’s gun only held 8 shots, and eyewitnesses all report that Sirhan did not reload his weapon.

If this acoustic analysis is to be believed, it means that there had to be a second gunman and conspiracy theorists may have their day of vindication.

California States Attorneys initially dismissed the analysis, but have been forced to acknowledge the “new” evidence. They have even gone as far as to say that “if” there was a second gun, it still doesn’t dismantle their original case against Sirhan.

Even if there was a second gunman, under California law, Sirhan would still be guilty of the crime he was convicted of. His legal defense is claiming that he was a victim of hypno-programming, and was simply meant to be a diversion so that the real assassin could take advantage of the chaos. The hypnosis argument has some merit, as it was derived based on the report of psychologist Dan Brown, an associate professor of psychology at Harvard, following 60 hours of interviews with Sirhan.

What comes of this is anyone’s guess. But one thing is certain; federal lawyers will definitely be arguing the merits of this case for some time, and a Pandora’s box has been reopened for conspiracy theorists everywhere.

In one of the most important criminal appeals decisions by the high court in years, the United States Supreme Court ruled that law enforcement cannot place a GPS device on or within your vehicle without your knowledge unless they first obtain a search warrant. The police and prosecutors argued that this was not an unconstitutional invasion of a persons privacy to use such a GPS device to track the whereabouts of a person.

In a shocking development ALL NINE JUSTICES ruled that the police and prosecutors were violating the constitutional rights of persons when they failed to first obtain a search warrant to track a person by use of a GPS device. The justices split on their reasoning but all nine agreed that the police could not legally continue to do this. Some of the justices concluded that it was definitely an invasion of a persons “privacy” rights under the constitution. The majority of the justices concluded that this was a “search” under the Fourth Amendment to our constitution and as a search required the police to obtain a search warrant.

It is very gratifying to know that even with the majority of our current Supreme Court being “conservative” on most criminal law matters, that they were willing to see that secretly putting a GPS device on your vehicle just is not legal under our constitution. One of the justices went so far as to say that putting a GPS device is similar to allowing the police to track every cell phone call you make or to monitor every Google search you do the internet. This justice said that the government cannot do these things as they are in violation of every persons privacy rights.

I hope everyone is as happy about this decision as we are at Wallin and Klarich. The protection of our clients rights is why Wallin and Klarich exists. This new decision will help us in our daily battle with prosecutors to see that justice is done.

We would love to hear your thoughts on this important decision.

People often call us and ask if there is anything that can be done for their loved one who is in prison after their initial criminal appeals have been denied. The United States Supreme Court recently answered that question in Smith vs. Cain decided on January 10, 2012.

In this case the accused was serving many years in prison. After he was convicted it was discovered that the police had failed to turn over critical evidence to the defense. There was only one eye witness who placed the accused at the scene of the robbery. This witness had told the police in the initial reports that he could never identify the robber and all he could say is that it was a “black man”.

Even after this new evidence was discovered all of the state courts turned own the accused appeals including the state supreme court. If the accused had stopped fighting he would be spending many more years in prison. However, he was wise enough to appeal his conviction to the United States Supreme Court. Even the very conservative US Supreme Court realized that this conviction could not stand. By a vote of 8 to 1 they reversed his conviction and granted Mr. Smith a new trial. There is a great chance that at a new trial with all of the evidence presented Mr. Smith will be found not guilty.

Please remember that if you give up on your appellate rights you will lose any chance of receiving a new trial. While this type of result does not occur very often, what is critical to remember is that it DOES HAPPEN and if it is your loved one spending years or decades or life in prison don’t you owe it to that loved one to keep fighting for them?

We are interested in knowing what you think about this injustice and you have to wondering how law enforcement can get away with “hiding the ball” from the defense. We certainly are

Dr. Conrad Murray was sentenced today to four years in the Los Angeles County Jail under California’s new sentencing laws that went into effect October 1, 2011. The judge sentenced Murray to the maximum sentence allowed by law which seems extremely harsh considering his lack of prior criminal record as well as the many outstanding things he had done for the community.

However in some ways Dr. Murray is very lucky due to the “timing of his sentencing”. Prior to October 1, 2011 Dr. Murray would have been sentenced to four years in state prison. This would mean he would have done two full years in prison. At the conclusion of his prison term he would have been placed on three years of parole. It is horrible to be on parole as you are monitored closely as to all aspects of your life. The good news for Dr. Murray is that under the new law he will spend his time in the Los Angeles County Jail and not prison. What this means is it is extremely likely he will not serve anywhere near a two year sentence. In fact, based upon the nature of his crime and lack of prior record and the overcrowded condition of the Los Angeles County Jail, he could serve as little as a few weeks or months in custody.

What is even more important for Dr. Murray is that after he is released from custody he CANNOT be placed on parole or probation. This means he will be “free” to do what he wishes to do and not be “hounded” by parole officers. He will not have to answer to anyone as to what he chooses to do.

It is unfortunately that the judge imposed the four year maximum sentence on Dr. Murray. However, in reality Dr. Murray is extremely fortunate that his sentence took place after October 1, 2011.

The 6th Amendment to the US Constitution guarantees the right to effective assistance of counsel to every defendant in a criminal case. "Effective assistance of counsel" doesn't mean perfect counsel. A lawyer's representation of a client is "ineffective" only if it falls below an objective standard of reasonableness and prejudices (has a negative impact on) his defense.

The burden is on the defendant to establish ineffective assistance of counsel. There is a strong presumption that a lawyer's conduct falls within the wide range of reasonable professional assistance. The courts won't second-guess the attorney's tactics or strategies. That is, when deciding if an attorney's assistance was effective, a judge typically won't think to herself, "I wouldn't have done that if I was the defendant's lawyer." Rather, the courts presume or take for granted that an attorney's conduct was proper and that he gave his client adequate assistance.

It's up to the defendant to show that there's a reasonable probability that, but for the lawyer's unprofessional errors, the result of the case would have been different.
Courts realize that a person ordinarily doesn't realize his lawyer's errors and evaluate his professional performance. A person may very well not know he hasn't been competently represented until after trial or appeal, usually when he consults another lawyer about the case. So many courts will allow a person to file a claim to set aside his conviction for ineffective assistance of counsel in federal court, even if he didn't directly appeal his state conviction and sentence or file to withdraw his guilty plea.

If you've missed the filing deadlines for a motion for a new trial or to file a notice of direct appeal, you might first try to reduce the sentence under your state's laws for post-conviction relief. If that fails, and you believe there are grounds to support it, you can attempt to file what's called a "habeas corpus" petition in federal court alleging ineffective assistance of counsel.

With over 30 years of experience as Criminal Lawyers, and appealing cases, Wallin & Klarich will assist you in this difficult time. Visit our website at www.wklaw.com or call us at 888-749-0034. We will be there when you call.

In the American justice system, you are presumed innocent until proven guilty in a court of law.

How, then, is it legal for police to require you to give a DNA sample immediately after your arrest? According to a recent California court decision, it is not.

In People v. Buza, a state appellate court ruled that it was unconstitutional for police to draw a DNA sample from suspects of a felony crime to include in a DNA databank designed to link suspects with unsolved crimes. As an unreasonable “search and seizure,” the court deemed this practice as a violation of the 4th Amendment of the U.S. Constitution.

Therefore, requiring a felony arrestee to submit a DNA sample without independent suspicion, a warrant, or probable cause is unconstitutional.

Be sure that your rights are adequately protected if you are ever facing criminal charges. The best way to do this is to hire a knowledgeable criminal defense attorney. At Wallin & Klarich, our attorneys have been in practice for over 30 years and can help you ensure the protection of your rights. Call us today at 888-749-0034 or visit us online at www.wklaw.com. We will be there for you when you call.

In a case out of Sacramento, a man was placed on felony probation for a DUI.  One of the terms and conditions of his probation was that he “not drink any alcoholic beverages, possess any alcoholic beverages, or be in any place where it is the chief item of sale”.  The issue was- that this term and condition did not have a qualification that to violate his probation, he must commit the proscribed conduct “knowingly”.  The court raised the point that unlike the term and condition that one must not “knowingly own, use, or possess any deadly or dangerous weapons” the term regarding the alcohol had no “knowingly” qualification.

This becomes important for the probationer in this case.  For instance, if goes with friends to go bowling- and the bowling alley serves alcoholic beverages but the probationer did not know that- his probation officer could not arrest him for violating his probation.

This ruling by the court prevents the probation department from violating a probationer for doing something that they DID not know was in violation of his or her probation.  In a felony case- where being put on probation is the alternative to going to prison- a violation could easily put the probationer in prison.  This would be extremely unjust if the probationer did not know that his or her conduct was in violation.

If you or a loved one have been charged with a Probation Violation contact the experienced Southern California criminal defense attorneys at Wallin & Klarich.  We’ve have been helping criminal defendants for over 30 years.  Call us at (888) 280-6839 or visit us at www.wklaw.com.

The right to appeal in a criminal case is conferred and defined by statute. (California Penal Code 1237) Appeal is initiated by filing a notice of appeal with the Clerk of the Superior Court within 60 days from rendition of the judgment or challenged order. The appeal must be taken from a final judgment, which is defined to include an order granting probation, insanity commitment, mentally disordered commitment, or an addiction commitment. The defendant may file a general notice of appeal, simply appealing from the judgment following a jury or court trial or a contested probation revocation. This notice does not require any specification of issues and counsel on appeal is not limited by any designation of issues by trial counsel.

If appellate counsel discerns a defect in the notice of appeal or the absence of a certificate of probable cause, the problem must be immediately addressed. If it is less than 60 days since the imposition of judgment, counsel can file an amended notice of appeal or an application for a certificate of probable cause. If it is too late to proceed in the trial court, relief from default must be sought in the Court of Appeal.

The appeals process can be lengthy and complex. Without the aid and knowledge of an experienced appeals attorney, the whole undertaking can be overwhelming. Our appellate lawyers at Wallin & Klarich have over 30 years of experience handling difficult appeals cases and will work diligently to file a timely appeal that will help you overturn your conviction. Call us today at 888-749-0034 or visit us online at www.wklaw.com. We will be there for you when you call.

Your Wallin & Klarich appeals attorney will obtain and thoroughly review a transcript of your trial to determine what legal errors were made. Such errors include the wrongful admission or exclusion of evidence, jury instructional error, or jury misconduct. Additional investigation may be necessary to uncover the evidence needed to prove such errors. Then, a written brief will be prepared which all such issues and justifications for reversal are presented and argued, supported by legal authority and the declarations of additional witnesses.

Constructing a comprehensive case of appellate issues increases the chances that a judge might grant a new trial because the motion is based on a variety of issues. Raising all pertinent issues at this stage assures that the client's best defense is presented and that those points are preserved for federal court review should that be required at a later date.

The appeals process can be a highly complex process. Without the aid and knowledge of an experienced appeals attorney, the whole undertaking can be overwhelming. Our appellate lawyers at Wallin & Klarich have over 30 years of experience handling difficult appeals cases and will work diligently to file a timely appeal that will help you overturn your conviction. Call us today at 888-749-0034 or visit us online at www.wklaw.com. We will be there for you when you call.