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Articles Posted in Criminal Defense

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The legality of firearm possession for people who have committed crimes in California is often a difficult issue. If you have been convicted of certain crimes, not only are you subject to California’s laws restricting gun possession, but you are also subject to a strict federal law – the Lautenberg Amendment (18 U.S.C. 922(g)(9)) imposes a lifetime ban on gun ownership by any person who has committed a “misdemeanor crime of domestic violence.”battery_convicts_firearm_possession.html

This is easy to understand if you have a felony conviction: If you are convicted of any felony, regardless of your age or whether the conviction was in California, you are subject to a lifetime ban on gun possession under California Penal Code section 29800.1

However, with misdemeanors, the ban is less clear. California law also applies a lifetime ban on firearm possession to certain misdemeanors involving the use of a firearm, such as misdemeanor domestic violence crimes, assault with a firearm, or having two convictions for brandishing a firearm. This ban is consistent with the federal law.

Adding to the confusion is this: Under California Penal Code section 29805, California has a 10-year ban on firearm possession by anyone convicted of any of 40 different types of misdemeanors.2 Among those is the crime of misdemeanor battery.

While California’s Court of Appeal ruled in 2013 (Shirey v. Los Angeles County Civil Service Commission) that people convicted of misdemeanor battery under California Penal Code section 242 are not prohibited from possessing firearms under the federal law,3 a more recent ruling by the United States Supreme Court has cast doubt on the prospects of gun possession for people convicted of misdemeanor battery.

United States v. Castleman and the Meaning of “Physical Force”

In 2014, the Supreme Court upheld a lifetime ban on firearms for a man who had a misdemeanor conviction under a Tennessee domestic violence law for “intentionally or knowingly cause[d] bodily injury to” the mother of his child. He had successfully argued in lower courts that his conviction for firearm possession was invalid because his prior conviction did not require proving he had violent contact with the victim, which was required under the law.4

The court in Castleman changed course, holding “that the requirement of ‘physical force’ is satisfied, for purposes of §922(g)(9), by the degree of force that supports a common-law battery conviction.”5 The court reasoned that the general policy behind the Lautenberg Amendment supports “grouping domestic abusers convicted of generic assault or battery offenses together with the others whom §922(g) disqualifies from gun ownership.”

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All lawyers have an ethical responsibility to vigorously advocate for their client. In California, a lawyer must put his or her client’s interest above all—even if a client admits guilt. This is because a lawyer never knows if the client is being coerced, protecting someone else close to them, or is not of right mind when admitting guilt.

Innocent Until Proven Guilty

attorney client privilegeEvery American citizen has the constitutional right to a presumption of innocence; that means you are innocent unless the prosecution can prove beyond a reasonable doubt that you are guilty of the crime for which you’re charged.

Your defense attorney’s role is to weaken the prosecution’s evidence against you. If the prosecution has not met their burden of proof, then they have not done enough to justify convicting you of a crime.

When the founding fathers drafted the constitution, they realized that it was better to let a hundred guilty persons go free than to imprison one innocent man for crimes he did not commit. This is because freedom and liberty is held most dear. That is why the prosecution’s burden to prove that you are guilty rather than your criminal defense attorney’s burden to prove that you are innocent.

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Facebook criminal caseIf you are like most people who use Facebook, you probably enjoy reading about the good things that happen in the lives of your social circle, and you probably share the same type of information, photos and videos. In fact, a recent study found that the majority of social media users screen the photos they post online and only post photos in which they seem “socially desirable.” The study also found that social media users “are unlikely to capture shameful, regrettable or lonely moments with a camera.”1

Yet these same purposefully positive posts can be used as evidence against you in court. Because most people only post photos in which they appear happy on social media, it could hurt their case if they claim they are unhappy.

Emoticons and Birthday Wishes May Be Used Against You

Don’t think that photos and status updates are the only thing that can be used against you as evidence. All those birthday wishes from friends, family members, co-workers and people you are connected to may hurt your case as well. You may also want to stop using smiley face emojis.

Take for example, the case of a woman who was injured when her chair collapsed at work. The woman sued the manufacturer of the chair, claiming the collapse caused her to suffer a serious back injury that confined her to her home and caused her to suffer a loss of enjoyment of life. The manufacturer checked out the woman’s social media profiles and found that the woman regularly used smiley emoticons, indicating the woman was happy.2

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Credit cards are a convenient way to pay for pretty much anything. Many of us don’t think twice about handing our credit card over the counter to make a quick purchase or using it to buy something online. Those plastic cards can come in handy. However, many people do not realize that credit cards store your information on them.police-computer-300x130.jpg

Magnetic strips on the back of credit cards contain a few lines of information on them. This includes your name, account number and other details about you. Information printed on the front of the card is supposed to match that on the magnetic strip, indicating whether the card is counterfeit.

So, let’s say you were in possession of a large amount of credit cards. If a police officer was conducting a normal search of your person or other property and found these cards, it could raise suspicion,. In this case, could the officer scan your credit cards without a warrant? This question was recently answered by the Eighth District Court of Appeals.

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Ever since California voters passed Proposition 47 into law in 2014, law enforcement and others have been quick to blame the new law for leading to an increase in criminal activity.Gen-32-300x200.jpg

The same claims have been made of the 2011 Public Safety Realignment Act (PSRA), which shifted the responsibility for treatment of lower level, non-violent felons from the state to each county. While there have been no meaningful studies to show whether Proposition 47 caused an increase in crime, a new study by the University of California, Irvine, appears to show that the PSRA has not resulted in an increase in crime.1

The Overhaul of California’s Prisons

In 2011, the United States Supreme Court declared California’s prison system to be constitutionally flawed.2 Overcrowding represented a significant problem in maintaining the physical and mental health of the state’s prison population, which not only was viewed as cruel and unusual punishment, but also as a hindrance to the effective rehabilitation of prisoners. As an example of these conditions, Justice Kennedy noted in the majority’s opinion that as many as 200 prisoners had lived in a gym and as many as 54 prisoners had shared a single toilet. The court ordered California to reform its prison system.

Jail-Bars-and-Cuffs-300x225.jpgCalifornia’s answer was the PSRA, which transferred 33,000 state prisoners into the custody of individual counties. In many cases, counties determined the appropriate treatment was to parole these inmates.

The Myth of Prison Realignment Increasing Crime

Law enforcement agencies were convinced that the sudden release of so many incarcerated persons would lead to a crime wave, but the UCI study shows that the true impact on the crime rate has been negligible. “We’ve seen no appreciable uptick in assaults, rapes or murders that can be connected to the prisoners who were released under realignment,” said Charis Kubrin, a UCI professor of criminology who co-authored the study. “This is not surprising, of course, because these offenders were eligible for release precisely because of the nonviolent nature of their crimes.” Continue reading →

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In 2002, Steven Spielberg directed Tom Cruise in the movie Minority Report. Spoiler alert: the movie’s plot focused on a detective in a futuristic world where the police used the gifts of three people who could see into the future to stop crimes before they could happen. Fourteen years after that movie’s release, it seems that all Cruise’s character would have needed is some Internet savvy to find out whom he should be arresting.Gen-32-300x200.jpg

Police agencies are turning to social media platforms to predict future crimes, as it is becoming increasingly prevalent for would-be criminals to thumb out a message on Facebook or Twitter that either directly indicates that they might commit a crime, or is a part of a pattern of messages that indicates that they might commit a crime.

Analyzing the Emerging Patterns

Dr. Sean Young, a behavioral psychologist at the University of California’s Institute for Prediction Technology and professor at UCLA’s medical school, analyzes data on social media, mobile device usage and online searches to show how these digital interactions can predict future events. The goal is to find how these daily interactions that happen millions of times per minute worldwide can be used to predict tragic events and possibly prevent them from occurring. According to Young, the data can predict events ranging from disease outbreaks to violent crime.1

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In one of the stranger bits of news to start 2016, Sean Penn, the Academy Award-winning actor and director, secretly met with and interviewed one of the world’s most wanted fugitives, Joaquín Archivaldo Guzmán Loera, aka “El Chapo.” Guzmán is the head of the Sinaloa drug cartel, one of the largest criminal organizations in Mexico. Mexican actress Kate del Castillo arranged the interview after the drug lord approached her about creating a movie about his life. Following the meeting, Penn’s interview with the notorious fugitive ran in Rolling Stone.1Immigrants Arrested

Six months before the meeting with Penn, Guzmán escaped a maximum-security prison. A few months after he met with Penn, the Mexican navy raided El Chapo’s coastal hideout in Los Mochis, recapturing the fugitive and returning him to prison.

Now that El Chapo has been arrested, many people are wondering if Penn’s interaction with the drug lord could be considered a crime. Continue reading →

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There is a Latin phrase that many attorneys learn in law school: “post hoc, ergo propter hoc.” Basically, that phrase translates to “after this, therefore because of this.” When one event is seemingly related to an event that follows it, there is a tendency to assume the second event was caused by the first event. However, this principle of causation is generally not true. Applying this idea would be like claiming that the St. Louis Rams decided to return to Los Angeles because their last playoff appearance was 10 years ago.unnamed-300x199.jpg

With this fallacy in mind, it is worth asking whether a change in the way crimes are classified affects the frequency in which they are committed. According to some, this is exactly what has happened in California since voters passed Proposition 47 (also known as the “Safe Neighborhoods and Schools Act”) in 2014.

The law reduced the penalties for certain drug and theft crimes to address the problems of harshly punishing non-violent offenders and jail overcrowding. The law is both prospective and retroactive, changing how crimes are charged going forward and allowing people who are serving time or have served time to have their felony conviction reduced to a misdemeanor. Continue reading →

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It has been famously said that ignorance of the law is no defense. With that in mind, the lawyers at Wallin & Klarich are here to remind you that with each new year comes new laws that you need to know about. By keeping yourself up to date, you can avoid the embarrassment of telling a police officer “I didn’t know I couldn’t do that!”Legal-2-300x199.jpg

California Gun Laws for 2016

New laws relating to gun ownership take effect in 2016. One of them, Senate Bill 707, amended parts of the Gun-Free School Zone Act of 1995.1 Previously, persons with a valid concealed carry permit were exempt from firearm bans on public or private school campuses. SB 707 updated the law to eliminate this exemption, except for certain retired peace officers. Violating the act by bringing a gun onto a school campus is punishable by two, three or five years in state prison.

Along with SB 707, Governor Brown also signed into law Assembly Bill 1014. This gun violence restraining order law allows law enforcement officials to seize firearms from individuals who pose a threat to themselves or others.2 Once a family member or law enforcement officer asks the court to issue a GVRO against someone, that person could be banned from possessing a firearm for 2` days or one year, depending on the circumstances of the case.

Rules of the Road

Several new laws affecting drivers took effect with the new year. Senate Bill 491 makes it a crime to operate a motor vehicle while wearing headphones in both ears.3 This law applies to bicycle riders as well, and carries with it a potential fine of $160.4

Assembly Bill 208 extends to bicycle riders the requirement that slow moving vehicles pull over to allow cars to pass when five or more cars are behind them.5 Assembly Bill 604 puts regulations on the use of popular “hoverboard” scooters.6 Riders must now be 16 years old or above to operate a hoverboard and are required to wear helmets.

Drinking and Drugs

Senate Bill 212 creates additional penalties for manufacturers of methamphetamine and the marijuana concentrate known as butane hash oil.7 Judges can now impose longer prison sentences when methamphetamine is made within 200 feet of an occupied residence or structure, and when butane hash oil is made within 300 feet of an occupied residence or structure. Legislators argued that the explosive nature of the chemicals used to make those drugs warranted harsher penalties.

For those people who have been convicted of a DUI in Alameda, Los Angeles, Sacramento, or Tulare counties, Senate Bill 61 extended a pilot program that requires ignition interlock devices to be placed in cars. A first time DUI conviction will result in the device being placed in your car for five months, a year for a second DUI, two years for a third DUI, and four years for each subsequent DUI conviction.8 Continue reading →

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Gender equality is a common topic of discussion in modern times. But one area of gender equality that deserves more attention is the differences in how men and women are treated by the criminal justice system. A recent study published in the Journal of Criminal Justice highlights a number of areas where men and women are treated differently when charged with a similar crime.[1]

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Do Women Receive More Favorable Treatment?

The study examined the period of time from a defendant’s initial appearance in court until he or she was sentenced for a crime. The sample for the study was a set of felony cases referred to the prosecutor’s office of a large, northern urban jurisdiction in the United States in 2009. The defendants’ criminal charges included various violent, property and drug offenses.

Ultimately, the study found that in a number of ways, female criminal defendants were treated better than their male counterparts. Among the findings:

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About Wallin & Klarich

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Wallin & Klarich was established in 1981. Over the past 32 years, our law firm has helped tens of thousands of families in their time of legal need. Regardless of whether our clients faced criminal or DUI charges, the loss of their driving privilege, or wanted to clean up their criminal record, we have been there to help them.