Articles Posted in Felony Offenses

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In a recent California state court ruling, the First District Court of Appeal determined a the law that permitted police to gather a DNA sample from any individual arrested on suspicion of a felony was unconstitutional. On the other side of the country however, in Maryland, a very similar law was upheld by the high court, giving the police the right to collect DNA samples from anyone arrested in connection with a serious crime.

DNA samples unconstitutionalOn the surface, the two laws appear to be indistinguishable but upon further review, there are minor discrepancies that may clarify the reasoning behind each court’s decision.

California Law vs. Maryland Law

Under a former First District California ruling, those arrested for any felony were required to immediately submit to DNA analysis. The current Maryland law does not require a DNA sample to be processed until after the arrestee is officially charged with the particular crime. Furthermore, while the Maryland law mandates the automatic expungement of the DNA if the subject is found not guilty, the California law placed the burden on the arrested individual to pursue an expungement, which is not always guaranteed.

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On April 13, 2014, a routine airport trip for a San Francisco 49ers linebacker took a drastic turn. According to ABC News, Aldon Smith was arrested after allegedly making a bomb threat at Los Angeles International Airport (LAX).


According to LAX police, Smith was randomly chosen for secondary screening by TSA agents while going through Terminal 1. At that moment he became belligerent, arguing with security and refusing to cooperate. While in the heated exchange with TSA, the NFL player then allegedly made a threat that he was in possession of a bomb. 2

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Many people think that they will automatically be sentenced to jail time if they are convicted of a felony. That is simply not true. Our skilled criminal defense attorneys may be able to help you get formal felony probation instead of serving time in prison for a felony conviction. Our criminal lawyers have the experience it takes to mitigate the punishment, sentence and consequences of your felony conviction.

If you have no prior convictions, and the present felony offense was not a serious or violent felony, our attorneys can help you avoid a prison sentence by seeking a grant of formal probation.

Am I Eligible for Probation?

Felony Crime AttorneyFormal probation is a privilege and not a right. We can investigate all facts and circumstances about your case to argue that you are a strong candidate for probation. Having the right attorney representing you makes a considerable difference in helping you avoid a prison sentence. The Wallin & Klarich criminal defense attorneys have over 30 years of experience successfully helping our clients obtain formal probation instead of a prison sentence. We can help guide you through the legal process and answer any questions you may have.

The court will look at several criteria when determining whether to grant you probation, including the facts relating to the crime and the facts relating to you. (California Rules of Court rule 4.414). Facts relating to the crime include:

  • The nature of the crime;
  • If the victim was vulnerable;
  • Whether you inflicted personal or emotional injury on the victim;
  • Whether you were an active or passive participant in the crime; and
  • Whether you took advantage of a position of trust or confidence to commit the crime.

Facts relating to you include:

  • Your prior criminal record;
  • Your prior performance on probation or parole;
  • Any negative consequences a felony conviction will have on your life;
  • Whether you were remorseful for your actions; and
  • Whether you will be a danger to others if you are not imprisoned.

In certain serious felonies, probation will not be available to you and the court must sentence you to a prison term. However, in the vast majority of cases, you will be eligible for probation and the court has the discretion to either grant probation or sentence you to a prison term. For more information about whether you are eligible for probation, contact a Wallin & Klarich attorney today.

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In a recent case, federal prosecutors had deported a critical witness for the defense in a pending felony prosecution.

There was no question that the defense witness was an undocumented alien and could legally be deported. However, the witness had been living in the United States for a substantial period of time. This key witness was only deported after it became known to the prosecution that she was illegal.

The question before the federal court of appeals was whether the prosecutors could legally deport a witness knowing that the defense in the criminal case needed this witness to testify.

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It was reported in the Los Angeles Daily Journal that prosecutors have filed felony perjury charges against two LAPD cops for filing a false police report. This criminal case stems from the two officers becoming involved in a DUI “checkpoint.” The two officers allegedly lied in their police report by claiming that a driver did not stop at a traffic stop – which was the reason they gave for pulling the driver over. Then, one of the officers testified under oath at a DMV hearing to similar facts. The DA’s office claims they have evidence to prove that the two officers lied in their report and that one officer lied under oath at the DMV hearing.

So if you wonder if police officers will lie under oath, the answer is yes. Cops are human. Cops get caught up in wanting to “win the case” and want to make sure that the accused person they arrest is convicted. Some officers unfortunately are willing to lie under oath and to lie in their police reports to achieve the goal they want.

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On October 1, 2011 in response to a federal court order that the State of California reduce its horribly overcrowded prison population, the legislature changed the California felony sentencing law and made many lower level felonies in California punishable by time in county jail and not in state prison. What has been the impact of this important law change?

In an 8 month period, since the changes to California’s felony sentencing law, the state prison population has dropped by about 24,000 inmates down to 136,187. This is good news. We now rank 2nd to Texas in total inmates in our state prisons. We should be happy to give up first place because the goal is to save millions of dollars by no longer housing low level offenders in state prison.

However, the very bad news is that county jail inmate populations in the state have swelled by over 12,000 inmates. The problem with this is that the county jails were already overcrowded before this new law was passed. Now the conditions are completely unlivable in most counties. In fact, it is reported that 31 out of our 58 counties are at their “cap” and cannot accept any more inmates. Thus, when a new inmate comes into custody, the county jail must release that inmate from doing his jail sentence, or release another inmate to make room for him. This is not how our criminal justice system was designed to run.

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In a bizarre turn of events, two Orange County attorneys are being prosecuted for a felony charge of conspiracy after being accused of unlawfully planting drugs in a parent volunteer’s automobile with the intention to have her arrested and prosecuted for a drug offense. It is alleged that these two attorneys were unhappy with the manner in which the parent volunteer supervised their son in 2010. The “drugs” found in the vehicle included marijuana, vicodin and percocet.

If the two lawyers are found guilty and convicted of felony charges of conspiracy, they are both facing a maximum of three years in custody.

When the parent volunteer vehemently denied that she knew anything about the drugs, the Irvine Police Department conducted a lengthy investigation that resulted in the prosecution of the two lawyers. Both lawyers were arrested and posted $40,000 in bail. They will be arraigned in Orange County Superior Court on July 17, 2012.

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It was recently reported that authorities are looking for two groups of men that got into a fight which left one man with stab wounds to his body. Authorities reported that a verbal altercation broke out between the groups around 11:30 p.m. inside a T.G.I. Friday’s restaurant. The argument precipitated into a violent exchange that spilled into the parking lot. During the brawl, one man revealed a handgun and another had a knife. The man stabbed was taken to a hospital and is in critical but stable condition. Police are still searching for the man who stabbed the victim, who will be charged with attempted murder.

Under California Penal Code Section 21a, an attempt to commit a crime consists of 2 requirements: a specific intent to commit the crime and a direct but ineffectual act done toward its commission. In addition, under California Penal Code Section 187, murder is defined as the killing of a person with malice aforethought. First degree murder is defined as any murder perpetrated by willful or deliberate or by means of a destructive device or by premeditation. See California Penal Code Section 189. Second degree murder is any other kind of murder. On the other hand, if the killing was in self defense or by accident, then he or she may be charged with second degree murder or manslaughter (See Penal Code Section 192).

In addition, punishment for first degree murder is a felony punishable by death, imprisonment in the state prison for life without the possibility of parole, or imprisonment in the state prison for a term of 25 years to life. Every person guilty of murder in the second degree shall be punished by imprisonment in the state prison for a term of 15 years to life.

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It’s almost never the case in incidents involving involuntary manslaughter that the defendant had intended to kill the victim, but unfortunately a death does in fact occur under the circumstances – even in the absence of any murderous intent. Consequently, the defendant will still face involuntary manslaughter charges as long as the killing was the result of the defendant’s own wrongful conduct or recklessness.

Under California Penal Code Section 192(b), involuntary manslaughter is the unlawful killing that results from an improper use of reasonable care or skill while performing a lawful act, or while committing an act that is unlawful but also not felonious.

To illustrate involuntary manslaughter charges stemming from the failure to exercise reasonable care or skill while performing a lawful act, consider the allegations against Dr. Conrad Murray, who had been Michael Jackson’s personal physician. Murray is charged with involuntary manslaughter for causing the death of the beloved pop star by allegedly treating his insomnia with lethal doses of a powerful anesthetic called propofol.

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It was recently reported that a missing 11-year-old Chatsworth boy was found safe after being reported missing the night before. Cody Burton went missing at 6:40 on a Sunday night after taking out the trash. He did not return to his apartment complex and did not have contact with his mother the rest of the night. Burton’s mother called the police when her son did not return, fearing he had been kidnapped. The next day, it was learned that he had walked to a friend’s house in Woodland Hills and spent the night. The boy is believed to be safe and unharmed. There is no evidence that a kidnap took place.

Kidnapping in California is regulated by California Penal Code Section 207, which defines kidnapping as the use of force or fear to take a person and move him or her a substantial distance. The punishment for a kidnapping conviction in California is up to eight years of state prison, which can increase if there was injury or abuse to the victim, if the victim was a child, or if the kidnapping was done to facilitate another crime.

If you or a loved one has been accused of kidnapping, it is important that you talk to an experienced criminal defense attorney. At Wallin & Klarich, our attorneys have over 30 years of experience in handling all types of criminal matters. Our attorneys will work with you to present the best possible defense for your case. Call us today at (888) 280-6839 or visit us on our website at www.wklaw.com. We will be there when you call.

About Wallin & Klarich


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.