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Articles Posted in Criminal Defense

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Earlier this year, under President Trump’s aggressive immigration policies, Immigration and Customs Enforcement (ICE) agents began keeping a watchful eye on people coming in and out of courthouses, seizing an opportunity to detain immigrants for possible deportation. ICE argued that courthouses made for a safe area to detain suspected illegal immigrants because the security measures at courts help remove the possibility of an armed confrontation.Illegal-Immigrants-300x145

In March, California Chief Justice Tani Cantil-Sakauye wrote to Attorney General Jeff Sessions and Department of Homeland Security (DHS) Secretary John Kelly asking their departments to cease the “stalking [of] undocumented immigrants in our courthouses to make arrests.”

In her letter, she made the argument that the threat of deportation prevents witnesses and victims of crimes from coming forward, which makes the communities in which they live less safe.

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The California Department of Justice recently released its annual report on crimes. For the year 2016, several notable trends were spotted. Here is a look at some of the important statistics in the report.California-300x145

Violent Crime Increased for the Second Year In a Row

In 2016, violent crimes, including homicide, rape, robbery and aggravated assault, increased by 4.1 percent compared to 2015. There were 8,113 more violent crimes committed in 2016 than the previous year. This is the second year in a row in which violent crimes have increased.

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After you are arrested, the court will typically assign bail. Bail is a monetary payment made by the defendant in order to be released from custody while the case is pending. The money is held by the court as a way to ensure the defendant will show up to his or her court dates. The money will eventually be returned to you if you do not miss any of your court dates, but the process may take more than a year.Money_Jail_Handcuffs-300x145

This system has been in place in California for many years. However, there is growing sentiment that the California bail system unfairly punishes poor people. Now, California lawmakers have turned to Kentucky as a possible example of how to reform the bail system.

Is California’s Bail System Unfair?

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Dumped in a lake. Dissolved in acid. Fed to pigs. In movies and TV shows, murderers often find creative ways to dispose of one key piece of evidence: the victim’s body. In reality, disposing of the body may not prevent a murder conviction in California. Murder_4-300x240

Several people in California have been convicted of murder in cases where the body was never found. One of the most famous cases involved Donald “Shorty” Shea, who disappeared during the summer of 1969. Charles Manson, one of the most infamous serial killers, and two other men, Steve Grogan and Bruce McGregor Davis, were eventually convicted of Shea’s murder despite the fact that his body had not been found at the time of his conviction.

How Can It Be a Crime Without a Body?

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Hate-speech-300x168Gun control has long been a controversial topic, but the conversation has become even more heated with the rise of mass shootings and domestic terrorism. In an effort to balance gun rights with public safety, California lawmakers have introduced a bill that would prevent people who are convicted of hate crimes from owning guns.

Assembly Bill 785 – introduced by Assemblyman Reggie Jones-Sawyer (D-Los Angeles) – would prohibit people who have committed a hate crime from possessing or purchasing a firearm for 10 years after their conviction.

Expanding Current Law to Hate Crimes

Under current law, you are prohibited from possessing or purchasing firearms if you are convicted of a violent misdemeanor or misdemeanor involving the use or threatened use of a firearm. However, Assemblyman Jones-Sawyer has pointed out that the law has an “absurd” loophole.

According to Jones-Sawyer, the list of misdemeanors classified under this law does not include PC 422.6, which makes it a crime to use force or threats of force to injure, intimidate or threaten another person based on that person’s race, ethnicity, religion, nationality, disability, gender or sexual orientation. Therefore, people convicted of this crime are not prohibited from possessing a firearm for 10 years.

AB 785, which is being called the Disarm Hate Act, would close that loophole. Jones-Sawyer says it will “help keep weapons out of the hands of those who have demonstrated a dangerous readiness to escalate bigotry into criminal threats and violence.”

Why Pass This Law Now?

Opponents to AB 785 worry that the language is so broad that it could apply to petty crimes. Jones-Sawyer believes this proposed law would help curb gun violence without infringing on the Second Amendment rights of law-abiding citizens. Continue reading →

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fight_assault_battery_gangsSocial media allows us to share the most compelling moments of our lives. All too often, those moments include fist fights and criminal activity. It’s almost impossible to see a fight in public without also seeing dozens of cellphones recording it while people shout “World Star!” Now, it seems that some young people may even think it’s “cool” to commit crimes on video.

For this reason, California lawmakers have introduced a bill that would make it a crime to film or record violent crimes.

Jordan’s Law (AB 1542)

Assembly Bill 1542, which was introduced by Assemblyman Matt Dababneh (D-Encino), proposes to make it a crime to record video of any violent felony.

The bill is being referred to as “Jordan’s Law” because it was proposed based on an incident involving 14-year-old Jordan Peisner. Jordan was punched in the head by an unprovoked teen in 2016. While the incident took place, a teenage female who had prior knowledge of the perpetrator’s planned attack recorded it and posted it on the social media app Snapchat.

Dababneh hopes Jordan’s Law will address an increase in violent attacks being conducted for the sole purpose of filming and sharing them on social media. At a news conference at Peisner’s school, Dababneh said that the crime was “no different than someone driving the getaway car in a bank robbery.”

Posting Fights on Social Media Could Be a Crime (PC 667.95)

If passed into law, AB 1542 would add Section 667.95 to the California Penal Code, making it illegal to willfully record a video or conspire with another person to record a video of a violent felony.

If you are the person committing the felony and you conspire with another person to have the act recorded, you face an additional one year added to the punishment you face for committing the violent crime. Say, for instance, that you’re accused of assault with a deadly weapon. A felony violation of this crime carries up to four years in prison, so you would face up to five years in prison if you conspired with someone to record the incident. Continue reading →

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California gun laws are extremely complex and can be difficult to understand. You have the right to own firearms, but that doesn’t give you the right to take a gun wherever you please.

A new California gun law answers one question regarding your gun rights: Do you have to lock your gun in the trunk if you leave it in your car?

California Passes Secure Gun Law (PC 25140)

Concealed-weapon-2-1-300x199Senate Bill 869 passed last year and went into effect on Jan. 1, 2017. The bill adds California Penal Code Section 25140 to California law. Under this new law, you must secure a handgun inside a vehicle before you leave the vehicle unattended.

The handgun must be locked in the trunk of the vehicle, locked in a container with the container placed out of view, or locked in a container that is permanently attached to the vehicle and not in plain view, such as a glove box. This means any person authorized to carry a concealed weapon permit must secure and conceal their firearm in their vehicle, including law enforcement officers.

Violating this law could result in an infraction punishable by a fine of up to $1,000.

Why Did SB 869 Pass?

The passage of this new law is a result of several high-profile incidents where a gun was stolen from the vehicle of a law enforcement officer and then used to kill another person. Last year, a gun stolen from the car of a Federal Bureau of Land Management ranger was used to kill a 32-year-old woman. Two months later, a 27-year-old man was killed by someone using a gun that was stolen from the car of a Federal Immigration and Customs Enforcement Officer. Continue reading →

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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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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.