Southern California Defense Blog

There is a strong movement under way in California to have the voters of California decide very soon whether our state should abolish the death penalty. In place of the death penalty would be life sentences without the possibility for parole. Many legal scholars have written well researched articles on this topic and have come to the conclusion that the death penalty is a financial burden that our state cannot continue to bear. Further, the evidence is clear that it is almost impossible for the state to find competent appellate lawyers for those on death row.

The proposed ballot measure states that those convicted of crimes that currently subject them to the death penalty would be required to work and pay restitution to victims families of their crimes. The proposal would also set aside 100 million dollars to be used by law enforcement to help solve unsolved murder and rape crimes that cannot currently continue for lack of funding.

The bottom line is that since 1978 only 13 people have been put to death under our current death penalty law. The cost of housing and providing lawyers for the thousands of men and women on death row has exceeded four billion dollars and the cost continues to grow. It is very difficult to find lawyers to take on death penalty appeals. Persons on death row are allowed to continue to appeal their sentences. In some cases the appeals have gone on for over twenty years. Many cases sit and go nowhere while a search goes on to find a lawyer willing to take on the case.

The time has come to realize that any deterrent effect the death penalty may have had over thirty years no longer exists today. When a person who is considering committing a serious crime in 2012 they do not take into consideration that they could be put to death for the crime. This is because there is an extremely small chance under the current law a death sentence will ever be carried out.

When this proposal reaches the ballot we urge everyone to seriously consider voting to support this change which will save taxpayers billions of dollars and allow our courts other cases to go forth at a much more rapid pace.

Now that the US Supreme Court has told the California prison systems they have two years to reduce the California State Prison population dramatically many experts are asking how that will be accomplished. Here are some of the real possibilities

Prison inmates serving time for non-violent offenses may be granted parole earlier than their current release date and placed in half way houses or other local facilities

Many prison inmates will be transferred to serve the balance of their time in county jail facilities

More prison inmates will be transferred to facilities in other states

District Attorneys offices will be told to file more cases as misdemeanors that could be filed as felonies to avoid possible new prison sentences.

What is certain is that the conservative justices on the US Supreme Court were very unhappy that this was happening. They would have preferred that inmates continue to live in deplorable overcrowded conditions. One of the justices went so far as to warn that this decision will lead to scores of new victims who will be preyed upon by prison inmates released from prison only to commit new serious offenses.

If you care about basic human rights then this is a good day for you. If you care about human beings being provided with basic human decency when they are incarcerated then this is a good day for you.

However, we know so little about what will actually happen now that the US Supreme Court has come down on the side of basic human rights. Wallin and Klarich will be tracking developments as to how inmate release will take place in the not too distant future. Feel free to call us or continue to read our blog for updated information. You can reach us at 877-466-5245. We will be there when you call

Judge rules that FBI misled the court and FBI’s statements to court were blatantly false

A United States District Court Judge has ruled that the government misled the court in a case involving government surveillance in Southern California’s Muslim-American Community.

In 2007, The American Civil Liberties Union filed a lawsuit on behalf of six Muslim groups and five individuals who were attempting to obtain records under the Freedom of Information Act, which they believed would show that the FBI had been unfairly targeting Muslims.

U.S. District Judge, Cormac Carney, ruled that the FBI did not have to turn over documents due to national security concerns, however he explained that lawyers for the government had mislead the court about the existence of the relevant documents.

The Judge denied the request by Muslim groups to see records of FBI surveillance, yet he criticized the government for making “blatantly false” representations.

According to media sources, Judge Carney stated “The Court is charged with the humbling task of defending the Constitution and ensuring that the government does not falsely accuse people, needlessly invade their privacy or wrongfully deprived them of their liberty...the court simply cannot perform this important task if the government lies to it.”

Judge Carney also stated, “the government's representations were then, and remain today, blatantly false," and that "the government cannot, under any circumstance, affirmatively mislead the court."

We often learn from our clients that law enforcement has exaggerated or altered facts. This is why it is vital if you or a loved one has been charged with a criminal matter to hire an experienced and aggressive criminal defense attorney who can see through dishonest and unlawful law enforcement tactics.

At Wallin & Klarich, our attorneys have over 30 years of experience in handling all types of criminal matters. Our knowledgeable attorneys will aggressively defend your rights and fight to get you the best possible result. Call us today at (888) 749-0034. We will be there when you call.

For people who have been convicted of lower-level crimes (misdemeanors) but still have work or school obligations, it may be possible to enroll in an inmate worker program – also referred to as “pay & stay.”
If permitted by the court, a convicted person can seek to work or attend school during the day and check into a city-run detainment facility in the evening. The inmate worker program is designed to be an alternative to serving a sentence in County Jail.
This is a fee-based program that is only available to qualified applicants. To help you with this process if it becomes necessary and to best ensure that your rights are protected, you need the legal counsel of a criminal defense attorney.
At Wallin & Klarich, our attorneys have been in practice for over 30 years and can help you achieve the best possible results in your case. Don’t let a mistake affect the important aspects of your life – call us today at 888-749-0034 or visit us online at www.wklaw.com. We will be there for you when you call.

Prison: Alternative Custody for "Female inmates, Pregnant inmates, or Inmates Who … [Are] Primary Caregivers of Dependent Children" (Stats. 2010, Ch.644 [S.B. 1266])

A new law that went into effect January on 1, 2011, which authorizes the Secretary of the Department of Corrections and Rehabilitation (DCR) to offer a program for female inmates, pregnant inmates, or male/female inmates who are caregivers of dependent children a chance to participate in voluntary alternative custody programs, instead of serving time in state prison.

Alternative sentencing will allow pregnant inmates or primary guardians to continue to take care of children while serving their sentence. Options for alternative sentencing will include confinement to a residential home, a residential drug or treatment program, or a transitional care facility that offers the appropriate services.

The DCR will have the authority to enter into contracts with county agencies such as not-for-profit organizations, for-profit organizations, and other programs to promote alternative custody options. The Secretary of the DCR will have the authority to set the rules and regulations pertaining to the sentencing programs such as participation requirements and compliance verification procedures.

If you are or a loved one is serving a time in prison and believe that you are eligible for an alternative sentencing program, it is imperative that you seek the legal assistance of an experienced criminal defense attorney. At Wallin & Klarich, our attorneys have over 30 years of experience handling sentencing modifications. We will work hard to ensure that your rights are preserved while helping you present the best possible defense in your case. Call us today at 888-280-6839 or visit us online at www.wklaw.com. We will be there for you when you call

In a recent decision by the California Court of Appeals, it was held that the trial court erred in admitting irrelevant and highly prejudicial gang evidence of the defendants' membership in a motorcycle club, where there was no evidence that the club was a street gang or a criminal enterprise, and where the prosecution offered this evidence in its case-in-chief primarily to show defendants’ criminal disposition to commit murder. (People v. Memory (March 5, 2010) Case No. Co54422.)

In California, evidence that defendants are members of a certain street gang is relevant to prove identity of those individuals suspected of violating the law. Moreover, gang evidence is relevant and admissible when the very reason for the underlying crime is related to gang activities. In Memory, however, the prosecution offered gang related evidence that the defendants were members of the Jus Brothers motorcycle gang. The prosecution wanted to show that membership in this gang required the members to carry knives and to fight when challenged by other people.

The court held that evidence of gang membership could not be introduced to prove intent or culpability of the defendants. The court found the evidence to be irrelevant. The evidence could not be admitted at trial where its sole relevance was to show defendants’ criminal disposition or bad character as a means of creating an inference that the defendant committed the homicide. By admitting this highly inflammatory and irrelevant evidence, the trial court committed reversible error resulted in a miscarriage of justice requiring reversal of defendants’ convictions.

Continue reading "Court's Erroneous Admission of Gang Evidence Resulted in Reversal of Murder Convictions" »

It was recently reported that a California court held that a juror in a criminal trial was engaged in prejudicial misconduct. The court found that a juror engaged in conversations with a non-juror friend about trial matters concerning the merits of the case, including discussions about the defendant's decision not to testify. (People v. Cissna (Feb. 26, 2010) Case No. D053464). It was thus decided a retrial would be granted.

Jurors who are selected through jury selection take an oath to follow a court’s instructions designed to eliminate outside influences and generate decisions based solely on the evidence presented at trial. In this case, one juror ignored these rules and violated his sworn duties by speaking on a daily basis about the merits of the case with his non-juror friend. After the defendant was found guilty, the defendant learned of this juror’s misconduct and moved for a new trial.

Continue reading "Juror Misconduct Results in the Reversal of a Defendant's Criminal Conviction" »

The California Supreme Court has overruled a 35-year-old court precedent that allowed defendants in criminal trials to assert nonmutual collateral estoppel. (People v. Sparks, Feb. 8, 2010, No. S164614.) The high court ruled that a verdict regarding one defendant has no effect on the trial of a different defendant because courts should determine the propriety of a prosecution based on that prosecution's own record, not a different record from another criminal case.

In Sparks, the defendant was charged with two felony murders. Before his case came to trial, two other persons were tried for the same murders. One was convicted of voluntary manslaughter, and the other was acquitted. Applying the doctrine of nonmutual collateral estoppel, the trial court determined that those two earlier verdicts did not allow the prosecution to try the defendant for a crime greater than voluntary manslaughter.

The Supreme Court disagreed and effectively overruled its previous decision authorizing the use of collateral estoppel in criminal cases. Nonmutual collateral estoppel provided a defendant with the benefit of a favorable verdict in a previously tried case stemming from the same facts of the defendant’s case, but involving a different person.

Continue reading "Nonmutual Collateral Estoppel Does Not Apply to Verdicts in Criminal Cases" »

In 2007, the California Supreme Court held that a DNA expert could testify about evidence from a test he or she did not perform. (People v. Geier (2007) 41 Cal.4th 555). This state has followed a long established practice where supervisors testify about lab tests, instead of technicians who actually tested forensic evidence.

However, the validity of the California decision has been questioned by the 2008 United States Supreme Court’s ruling, which held that a defendant had a right to demand live testimony at trial from crime lab technicians who actually performed their tests. (Melendez-Diaz v. Massachusetts (2008) 129 S. Ct. 2527). In particular, the Court has ruled that a trial court violated defendant's rights under the Sixth Amendment during his trial on a charge alleging that he distributed cocaine, when it admitted certificates signed by state laboratory analysts which stated that material police seized was cocaine because the certificates fell within core class of testimonial statements covered by Confrontation Clause.

The Court’s decision was the latest test of a defendant’s Sixth Amendment right to be “confronted with the witnesses against him.” The Confrontation clause was revived in 2004 when the justices rejected a prosecutor’s use of an absent witness’ tape-recorded statement to the police. Justice Scalia writing for the majority of the Court emphasized that when testimonial evidence is at issue, the Constitution gives the defendant a right to confront and to cross-examine the witness. (Crawfowd v. Washington (2004) 541 U.S. 36).

Since then, the Supreme Court has issued opinions clarifying what qualifies as testimonial evidence. Three years ago, the Supreme Court has found that a recorded 911 call for help was not testimony, and, therefore, the words could be played for the jury if the victim were missing. At the same time, a police officer’s crime-scene interview with an abused spouse was like testimony, and could not be introduced as evidence if she failed to testify. (Davis v. Washington (2006) 547 U.S. 813).

Continue reading "California's DNA Testing Procedures Questioned by the U.S. Supreme Court - Protect Your Sixth Amendment Rights" »

It was recently reported that two San Bernardino officials have been charged with over a dozen felony counts, including bribery and misappropriation of public funds. Former Board of Supervisors Chairman Bill Postmus and former Assistant County Assessor Jim Erwin are accused of accepting $100,000 apiece from land development company Colonies Partners to settle a lawsuit the company filed against the city for $102 million. The lawsuit was filed because the city allegedly failed to make payments for flood control improvements for a development project near Upland.

Postmus is charged with five felony counts, including conspiracy to commit a crime, conflict of interest, misappropriation of public funds, and two counts of accepting a bribe. Erwin is charged with nine felony counts including bribery, misappropriation of public funds, forgery, and two counts each of corrupt influencing and extortion to obtain an official act. Both are awaiting trial on other corruption charges.

Continue reading "Two Elected San Bernardino County Officials Charged with Bribery and Why You Need an Experienced Southern California Defense Attorney to Represent You - California Penal Code Section 641" »

In answering the question of whether discretionary procedural rulings are "automatically inadequate" to bar federal habeas corpus review, the United States Supreme Court has ruled that a state procedural rule is not automatically "inadequate" under the adequate state ground doctrine because the state rule is discretionary rather than mandatory. ﴾Beard v. Kindler ﴾Dec. 8, 2009﴿ 08-992, 2009 U.S. LEXIS 8944﴿.

Under the adequate state ground doctrine, a federal habeas court will not review a claim rejected by a state court if the decision of the state court rests on a state law ground that is independent of the federal question and adequate to support the judgment. Federal courts frame the adequacy inquiry by asking whether the state rule was "firmly established and regularly followed." The Third Circuit determined that since state courts had discretion to hear an appeal filed by the fugitive, meaning that courts could apply procedural rule in one case and deny its application in another, the Pennsylvania fugitive forfeiture law was not "firmly established" because it was not consistently applied in the majority of cases.

The Supreme Court granted certiorari in a case of a fugitive from justice, who had been convicted of capital murder in Pennsylvania state court and escaped to Canada at the time when the trial court was considering his post-verdict motion challenging defendant’s conviction and sentence. The trial court subsequently dismissed Kindler's post-verdict motions because of his escape. Once recaptured and brought to the United States, the defendant sought to reinstate his post-verdict motion.

Continue reading "Discretionary Procedural Rulings In Appellate Matters Are Not Automatically Inadequate For the Purposes of the Adequate State Ground Doctrine" »

Anyone who has been charged with corporal injury on a child, under California Penal Code Section 273d, should be prepared to retain an experienced criminal defense attorney. An experienced criminal defense attorney will know how to examine all the circumstances surrounding your case to secure the most favorable result.

Corporal injury on a child is defined as an infliction of a physical punishment on a child that results in a traumatic condition. Physical punishment can be any form of physical contact with the child that results in an injury. The type of contact can range from punching to pushing a child.

To prove that a person is guilty of the crime of corporal injury on a child in California, the prosecution must prove an individual willfully inflicted cruel or inhuman physical injury on a child. The prosecution must also show that physical punishment was unreasonable or unjustified. The child must also have suffered a traumatic condition.

Continue reading "I am Accused of Corporal Injury on a Child - What Should I Do? - California Penal Code Section 273d" »

In the recent case of People v. Santos Dominguez (2010) 2010 WL 60237 (hereafter Dominguez), the California Court of Appeal held that the amount of force required for false imprisonment of an unresisting infant or child is the amount of physical force required to take and carry the child away a substantial distance for an illegal purpose or with an illegal intent. The court also clarified what constitutes “violence, menace, fraud or deceit” for felony false imprisonment.

In Dominguez, the defendant lived in the same apartment building as two female girls, ages four and six. The defendant did not know the two girls and was not related to either of them. According to the prosecution, the defendant repeatedly hugged the two girls, twice asked the six-year-old where her mother was, and told the six-year-old he wanted to take her to a restaurant. The defendant physically carried the four-year-old outside of the apartment building while the six-year-old followed. When the defendant came upon another man in the building, the defendant stopped and put the four-year-old down.

The defendant claimed he never saw the two girls before the incident and denied picking up or touching the four-year-old. The defendant said that he was merely trying to stop the girls from leaving the apartment building gate to play, wanting them to stay inside. The defendant denied asking the girls if they wanted to go to a restaurant.

Continue reading "California Court of Appeal Clarifies "Force" Requirement of False Imprisonment - PC Section 236-237" »

Recently, a California appellate court has concluded that even if you have a signed lease to enter your apartment, that may not constitute a complete defense to burglary when there is sufficient evidence to conclude that the defendant did not have “an unconditional possessory interest” in the apartment rented with another person at the time of commission of burglary.(People v. Ulloa (Cal. App. 4 Dist., Dec. 21, 2009, No. E045880) 2009 WL 4895082.)

In Ulloa, the defendant was convicted of first degree residential burglary, receiving stolen property, and misdemeanor vandalism as a result of breaking into an apartment leased together with his then-wife, and taking her purse and $900 from her wallet following a domestic violence confrontation. On appeal, the defendant contended that he could not possibly commit burglary as a matter of law because he was a cotenant in the apartment where the alleged burglary occurred.

The appellate court has disagreed. Although both the defendant and the victim jointly signed an apartment lease, and the lease was in full force and effect at the time of the charged crimes occurred, the defendant did not own the property, and his possessory interest was not “unconditional” due to abandoning his unconditional possessory interest in the apartment by moving out.

Continue reading "A Person Can be Convicted of Burglary of the Apartment Which He Leases: California Penal Code Section 459" »

In California, “an officer must activate a red light when in pursuit of a traffic offender who attempts to flee.” (People v. Copass (Dec. 14, 2009, No. B211281) 2009 WL 4757252 (hereafter Copass).) But what if a police officer loses a traffic offender during a pursuit and deactivates the light, only to moments later spot the traffic offender and reactive the light to resume the pursuit? The California Court of Appeal recently determined a police officer can deactivate the red light during the period the officer momentarily loses sight of the offender.

In Copass, a police officer observed a motorcyclist traveling at 90 miles per hour. The officer activated his red light, and a chase ensued. At some point the police officer lost sight of the motorcyclist, and the police officer turned off his emergency lights while continuing to search for the suspect. Within 5 minutes, a CHP surveillance airplane located the suspect and notified the officer of the suspect’s location. The officer did not immediately turn on his red light because he wanted to wait until he got close enough to the suspect. The officer turned his emergency lights and siren back on when he saw the suspect commit a traffic violation. The officer eventually forced the suspect to stop, and the suspect was arrested.

Continue reading "The Proper Use of Police Officers' Emergency Lights When Pursuing Traffic Offenders in California - California Vehicle Code 2800.1 " »

In a recent California Court of Appeals case (People v. Tuggles) the court ruled that the trial judge has the power to subpoena any juror that he or she feels may have been involved in misconduct during the trial. The judge can do so at the request of the defense or of the prosecution.

California Code of Civil Procedure sections 206 and 237 allow jurors to prevent the release of information to parties, their attorneys, investigators working for counsel, and members of the general public. The court must heed the wishes of reluctant jurors to bar disclosure of their personal identifying information to these persons. However, Code of Civil Procedure sections 206 and 237 do not infringe upon the trial courts' inherent power to investigate strong indicia of juror misconduct. (People v. Cox, 53 Cal.3d)

Continue reading "Trial Judge Has the Power to Subpoena Jurors that May Have Been Involved in Misconduct" »

In California, a police officer does not have to be behind you with his or her lights on in order to pull you over. A recent California Court of Appeals case (People v. Pakes) held that the police only need to make a reasonable effort to overtake your vehicle in order to technically be in pursuit.

Evading a police officer is a violation of the California Vehicle Code Section 2800.2. Section 2800.2 states that if a driver flees a pursuing police officer, and the pursued vehicle is driven in a willful or wanton disregard for safety, the driver can be punished by serving jail time. In the Pakes case mentioned above, the defendant argued that the "pursuing" officer needed to be behind his vehicle for a violation of Section 2800.2 to occur. Looking at Section 2800.2's plain meaning, the court found that the word "pursue" includes "the concept of overtaking for capture," which does not require that a pursuing officer place himself behind a suspect.

Continue reading "Evading a Police Officer in California, Vehicle Code Section 2800.2: How Knowing the Law Could Spare You Jail Time" »

A recent California Court of Appeals decision in People v. Hirata held that a search warrant is invalid after the passing of a substantial period of time. In this case, the period of time was 84 days.

The defendant (Hirata) was charged with possessing drugs and being part of a drug conspiracy ring. Investigators had built substantial evidence against Hirata and a number of other co-conspirators. Armed with this information, the authorities put together an affidavit and were able to secure a search warrant for a number of the residences believed to be a part of the conspiracy. The search warrant was signed and put into effect on June 14; however, it was not executed (when the search actually took place) until September 4.

Continue reading "Good Faith Exception to the Exclusionary Rule Does Not Apply Where the Search Warrant is 84 Days Old - Penal Code Section 1538.5" »

A recent California Appeals Court decision (People v. American Surety Insurance Co.) held that bail was not forfeited when a defendant failed to appear at an arraignment.

California Penal Code Section 1305 provides that a trial court shall not have jurisdiction to declare a bail forfeiture if no complaint is filed within 15 days from the arraignment. In this case, the defendant appeared at his initial arraignment, but the case was not officially called on the court calendar.

The district attorney in charge of the case wrote the defendant a letter, informing him that he would have to appear on the new date. When the defendant failed to appear on the date requested, the trial court ordered that bail be forfeited and contacted the insurer of the bail company.

Continue reading "District Attorney's Letter Does Not Substitute For a Court Order: Why Having a Good Defense Attorney Can Save You Money-Penal Code Section 1305 and the Law of Bail Forfeitures" »

Valencia is a planned community in California that forms Santa Clarita along with three other major communities. Aside from being used for the location of many TV series, Valencia is well known for being a safe neighborhood and having a convenient network of walkways (paseos) that connect the community without crossing streets at grade. Valencia is home to approximately 32,642 residents and attracts several visitors throughout the year. As a busy city, it is no wonder that arrests are made once in a while for driving under the influence (DUI) in which a Department of Motor Vehicles (DMV) hearing is very liable to take place.

It is normal for motorists to be unsure of their legal rights or defense opportunities when charged with DUI in Valencia. Many individuals arrested for drunken driving do not realize that the officer who arrests them will take away their driver’s license. A DMV hearing is available to arrested individuals as a way to retain driving privileges. However, a person has only ten days from the date of arrest to schedule a DMV hearing. Failure to do this will result in the automatic suspension of a DMV hearing and will suspend a person’s driving privileges for thirty days from the date of arrest.

The skilled Valencia DMV hearing attorneys at Wallin & Klarich understand how important it is for those arrested for DUI to understand their legal rights and receive quality counsel and representation. Our aggressive Southern California criminal defense lawyers have been defending the rights of individuals charged with DUI and other offenses for more than 30 years. We know what it takes to help our clients reach a positive outcome at their DMV hearing and in their DUI case. Call Wallin & Klarich today at 1-888-280-6839 for a case evaluation or visit www.wklaw.com for more important information.