Southern California Defense Blog

Many California jails are overcrowded and to comply with the law must release inmates early from their sentence. Due to this fact many of those accused of crimes are choosing to serve their entire sentence and reject probation.

This is happening because it is becoming a well known fact that inmates are not serving the jail sentence imposed by the court.

Los Angeles County Jail is probably the best example of abuses of our legal system. In one case a defendant was sentenced to 2,390 days and was released from custody after serving only 21 days. This is less than 1% of his sentence. This also means that the defendant is not on probation for this offense because he has served his entire sentence.

District Attorneys from around the state have expressed their anger and frustration with the current system. Many other counties are being forced to release inmates prior to them doing 50% of their time.

It will be very interesting to see how things develop on this issue over the next few weeks.

If you are accused of any crime you need to contact Wallin and Klarich to help you decide what are the bst options for you in your case. Call us at 877-466-5245 toll free 24/7. We will be there when you call.

In a story straight out of the wild wild west, two men broke into the Siskiyou County courthouse in the early morning hours and smashed open a display case containing approximately $3 million in gold nuggets. This particular act of burglary was brazen to say the least, and if caught, the duo will need one heck of a criminal defense attorney to wriggle out of this one.

Siskiyou County is located on the border between California and Oregon, and was part of the Gold Rush that prompted settlers to move west in search of fortune. And just as crime was rampant back then, it seems as though these two bandits have gotten away with burglary and grand theft.

The case they broke into was protected by an alarm system, but the system malfunctioned and the alarm never sounded. The thieves knew what they were looking for too. The surveillance video shows the pair ignoring most of the smaller pieces and historical items, focusing rather on the larger pieces of gold.

It wouldn’t be too hard for a thief to case the courthouse and determine what was worth taking and what wasn’t. The gold nugget collection is prominently displayed in the courthouse for tourists and citizens alike to enjoy.

If caught and convicted, the thieves could face as many as 5 years in prison, including enhancement for stealing more than $3 million worth of assets. For the sleepy little town on the Northern California Border, this theft has been the talk of the town, and bringing the criminals to justice is priority number one.

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

For hundreds of years California criminal judges have been allowed to make an “offer” to a defendant facing a felony charges when the District Attorney refuses to do so. This has been called an “indicated sentence”. The judge tells the defendant that if he pleads guilty to all of the charges pending against him he will give him an “indicated sentence” of a number of years in state prison. This offer is almost always a substantially better offer than what the District Attorney is willing to make to the accused.

The court of appeals in People vs. Clancey threw out a judicial “offer” that had been made by the judge to the defendant. The court of appeal ruled 2 to 1 that judge cannot make offers to defendants. The court said that they cannot make anything more than a “prediction”. For years the court would tell a defendant that if he plead guilty he would receive a set sentence and if after the judge read the probation report the judge did not feel that sentence was sufficient then the defendant could withdraw his plea.

After this decision, this type of “judicial-defendant” agreement is no longer legal.

What this means is that a defendant will have to either accept the District Attorneys offer (which is normally not a very good one) or plead guilty to all the charges and “hope” that the judge gives him a fair sentence based upon the judge’s “prediction” as to what he might do. However, the judge is no longer bound by that “prediction” and that will mean that thousands of defendants will risk very little by going to jury trial. When this occurs the result will be that it will likely be impossible to provide enough courts for all of these jury trials. This will mean the court will have to dismiss some serious felony cases if a defendant is not permitted to have his jury trial within his statutory right to a jury trial, which is within sixty calendar days of his arraignment.

Unless our California legislature takes quick action to change the law to permit judicial offers to be made to defendants all hell is going to break loose in our criminal courts system very soon.

The Miranda decision was decided decades ago. When the decision was reached by the United States Supreme Court they made it clear that when you are arrested you must be read your Miranda rights and unless you clearly waive those rights the police are not allowed to speak to you without your lawyer being present. This was decided because of decades of abuse by the police in obtaining “tainted” confessions due to intimidation and other coercive measures. This lead to hundreds of persons being wrongfully convicted based upon invalid admissions or confessions.

However, over the past ten years the current United States Supreme Court, lead by a conservative majority have slowly but surely weakened our citizens rights under “Miranda” so that they are now considered all but worthless. The burden is now on the accused to make absolutely and 100% clear that they do not want to speak without a lawyer. Making any statements short of those exact words and the police will be allowed to continue to badger you in an attempt to get a confession out of you.

Recently, even though a juvenile who was accused of a crime repeatedly begged to have his mother present before he answered questions, the court of appeals held that did not mean the police had to stop questioning him. In other cases, where the defendant says things such as “I think I need my lawyer” or “Don’t I need to have my lawyer” or “can you get me a lawyer” that has been held NOT BE GOOD ENOUGH to convince the court that what the defendants were saying is that they didn’t want to speak to the cops without a lawyer.

So spread the word to everyone you know. If you are a loved one is arrested, repeat the following sentence when the police come to speak to you over and over:

“I REFUSE TO SPEAK TO YOU WITHOUT MY LAWYER BEING PRESENT”. No matter what the police say to you or how they ask you a question just keep repeating the one sentence above. Then stop talking and do not say another word. IF you follow this advice then you will be protecting yourself and you will make it easier for our criminal defense law firm to work with you to win your case.

We would sure like your comments on this blog and whether you have had an experience with the police where they tried to get you to make statements to them after you had been arrested.

The Committee on Judicial Performance has removed Judge Richard Stanford from serving as a judge. This is sad. Judge Stanford has been a brilliant judge for over 20 years and I have personally known him to be fair and to treat all those that come before him with the utmost respect. He was a former prosecutor before becoming a judge, but as a judge he has shown the ability to make sound legal decisions over his lengthy career.

Many years ago Judge Stanford made the mistake of suspending some fines for members of his family on minor traffic offenses. Of course it was an error in judgment to do this. He should have not have been handling cases that came before him where the accused were members of his family. However, we think it is an incredibly harsh punishment to remove Judge Stanford for the bench for these errors in judgment.

Every day our clients commit crimes far more serious than this and we are able to have them placed on probation and they more often than that never see a day in jail. They certainly do not lose their job or career for their commission of a criminal offense. So it is fair for Judge Stanford to lose his “entire career” as a judge over these few errors in judgment. This is a sad situation and we encourage your comments on this situation.

How can this happen in our country?

One of our clients was formerly prosecuted for child molestation. The evidence against him was weak but the DA pressed the case to trial. The jurors and the judge heard the evidence and 10 jurors voted not guilty. We then asked the judge to dismiss the case but the DA wanted to have another chance with another jury trial. The judge said no and went on for over ten typed pages as to why the evidence would never get better and the judge threw out the case.

Now two years later the District Attorney has refilled the charges and convinced a judge to set our clients bail at 1.3 million dollars. Today, finally, we were able to show the new judge the transcript from the prior case and the judge had no choice but to throw out of court these old dismissed charges.

You just have to wonder what else will the District Attorneys office try to do to persecute and harass those that have been exonerated by our court system. Thank god that our client was able to locate Wallin and Klarich and have them fight for him until the battle was won. Our client will be released from custody today.

Justice can prevail if you have the right law firm at your side.

An officer who encounters a person under circumstances which reasonably indicate that such a person has committed or was about to commit a crime may temporarily stop that person. The surrounding facts and circumstances dictate (1) the reasonableness of such a police stop and (2) whether the stop rose to the level of a "detention.” Being stopped briefly and subsequently held and detained triggers numerous constitutional protections and exceptions.

Depending upon the surrounding facts and circumstances known to the officer, a lawful stop or police contact may be justified. An officer may extend that stop to a "detention" and perform what is known as a "stop and frisk."

A "stop and frisk" is generally constitutional when an officer has:
(1) A reasonable suspicion of criminal behavior and/or;
(2) A reasonable concern for officer safety.
These elements apply both at the scene of a routine traffic stop and on the street.

An officer will need more than a mere "hunch" of criminal activity or officer safety concerns. The reasonableness of a challenged "stop and frisk" will depend upon a careful analysis and critique of the officer's police report. The court will look for an indication that a "stop and frisk" decision was reasonable and rational under the circumstances.

Be sure that your rights are adequately protected if you are facing criminal accusations. 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.

Most people think they are arrested when a police officer says "You Are Under Arrest" or puts you in the back of the police car. This is incorrect. An arrest is the act of legal authority taking actual physical custody of a citizen thus causing a restraint on that citizen's liberty. An arrest occurs when there is a submission to authority causing a seizure of your person.

The standard to be considered and understood is the "free to leave" standard. Whether the suspect was free to leave - therefore making the police encounter consensual and not an arrest. What is difficult to understand is the interplay between a stop, detention, and arrest. Understand that an arrest is more than a stop. It is more than a detention. Further, mere contact, interaction or discussion with the police is not necessarily an arrest.

Also note that the infamous constitutional rights of Miranda do not apply until after you are placed under arrest. This is an important issue to discuss with your attorney, to make sure your attorney's arsenal is full before approaching arguments with the prosecutor and court.

Be sure that your rights are adequately protected if you are facing criminal accusations. 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.

The US Supreme Court is deciding that very issue. The case stems from a Florida case, where a police dog in the front yard of a house smelled marijuana, thus prompting police to enter the house and search the premises. Police found marijuana inside the residence and made an arrest.

After being found guilty of the related charges, the defendant appealed and the Florida Supreme Court overturned the ruling, saying that the search was a violation of the defendants 4th amendment rights.

The police and the DA say that this is legitimate “police investigative work”. However, defense lawyers and citizens are strongly protesting this police conduct.

The argument is clear on behalf of those who support the constitutional right of all citizens to be free from unlawful searches in their home. Isn't a police dog nothing more than an extension of law enforcement? Shouldn’t the law require that police obtain a search warrant before busting into your home and arresting you because a dog “sniffs” out what he or she believes is unlawful drugs?

The Florida Supreme Court said the police went to far this time and threw out the drug conviction. However, the US Supreme Court is considering taking on the “dog sniffing case” and if they do nobody knows how they will rule.

What are your thoughts?

Both the prosecutor and the defendant may reap benefits from plea bargaining. Without plea bargaining, prosecutors would be forced to conduct trials in nearly all criminal cases. Prosecutors are reluctant to try cases where they may not be able to meet their burden of proving each elements of the charged offense beyond a reasonable doubt. Therefore, prosecutors have a strong incentive to offer plea bargains to defendants in order to induce them to give up their right to a trial. Understand that each defendant has an absolute constitutional right to a trial in every misdemeanor or felony case. The prosecutor has the sole burden of proving each offense beyond a reasonable doubt. The constitutional rights to a trial and proof beyond a reasonable doubt are fundamental privileges that one should not readily surrender.

Defendants also benefit from plea bargaining. Depending upon the facts and circumstances of a case, it may be in the defendant's best interest to give up certain constitutional rights and plead guilty. Whether to accept a plea bargain is based upon the strength of evidence against the defendant, and the negotiation process between defense counsel, prosecutor, and judge.

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.