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California is not doing enough to keep firearms out of the hands of the mentally ill, according to a state audit released on October 24. The breakdown is a result of the state’s failure to report a person’s mental health status to the Department of Justice (DOJ).

Why is this happening, especially in light of the ever-increasing acts of gun violence involving the mental ill, begs closer examination. The first step in looking at this issue more closely begins with the Superior courts around the state. When an individual is convicted of certain crimes, he or she loses the right to carry or possess or own a firearm. Crimes like domestic violence, restraining order violations and enumerated assault and gun possession and use offenses will cause revocation of the right.

Theoretically, the courts should automatically notify the state Department of Justice. But of the 34 courts surveyed, most weren’t even aware they had the reporting obligation, nor did they send notice of convictions to the Mental Health unit at the DOJ. Over a three-year period, 2,300 prohibited individuals did not get reported. Some courts did submit reports but they were incomplete in different ways.

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When we hear that someone has been arrested for burglary, we imagine someone breaking into a home, late at night while the occupants sleep, and stealing something. While the scenario described is a burglary under California law, you can be charged with burglary even if you don’t take anything.

Simply put, burglary is defined as someone entering another person’s property with the intent to steal something or, commit any other kind of felony once inside. Even if you don’t act on the intent, the fact that the property was entered initially with the intent to commit a theft or felony is enough to be charged with burglary.

There are two degrees of burglary and they are both considered felonies. Although, second degree burglary is a “wobbler” meaning is can be filed as a misdemeanor. Felony burglary is a serious crime with serious consequences if convicted. The punishment for a conviction of burglary may include fines, prison and payment of restitution to the victim.

Degrees of Burglary Described:

Second-degree burglary, as mentioned above, may be filed as either a misdemeanor or felony, and is committed when a person enters a commercial building with the intent to commit a felony or theft once inside.

First-degree burglary is a felony, and as you may have guessed, is the more serious of the two. This is when a person enters a residence with the intent to commit a felony or theft once inside.

For the prosecution to prove a burglary charge, it must be proven that the defendant entered the property without permission and had specific intent to commit a crime once inside. Absent the intent, the prosecution may be forced to change the charge to trespassing or drop the charges completely.

One defense to a burglary charge might be that the defendant had permission to enter the property. If the defendant had permission to be on the premises, it would be hard to prove burglary. If something had been taken, it could have been an after-thought. In other words, once inside, the defendant notices something he/she wants and decides at that moment to take. There was no intent to commit the crime prior to entering the premises. Remember, a necessary element to prove burglary is intent.

Intoxication may be a possible defense. There was no intent to commit a crime once inside but, in an intoxicated state, enters a dwelling.

Every case is different and the specific facts will dictate the type of defense your attorney will pursue.

The penalties, if convicted, will depend upon how the prosecution files the case. Whether it is filed as 1st degree burglary or 2nd degree burglary. A conviction for 1st degree burglary can carry a sentence of state prison for two, four or six years. A conviction for 2nd degree burglary could be up to one year in jail or three years in prison, depending upon how it’s filed. This in addition to fines and possible restitution to the victim.

There are situations where a court may grant probation rather than jail time. However, with a conviction for 1st degree burglary, the Court cannot grant probation unless it is in the interest of justice and there are unusual circumstances.

Hiring an experienced criminal defense attorney in the County where your case is pending is highly recommended as they will be familiar with the District Attorneys and Judges and will be in a better position to get the best possible outcome.

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Deferred Entry of Judgment, or DEJ, is part of Proposition 21, which was passed by California voters in 2000. DEJ is a sentencing alternative to the juvenile delinquency process. What it does is it allows minors who are charged with at least one felony to become eligible for a probation program. The minor must admit the charge(s) and successfully complete the DEJ probation and the Court will dismiss the case. Along with the dismissal, the Court will order the case sealed and the minor’s arrest is deemed never to have occurred.

Basic eligibility criteria for DEJ was established by Proposition 21 and if the minor meets the criteria, a hearing of held to determine whether the minor would benefit from DEJ. The benefits of DEJ are as follows:

1. It would provide immediate consequences for the minor’s actions and behavior. If the minor is not held accountable in some way for their actions, they may not realize the seriousness of the case and are therefore at risk for future problems.

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In California, Marijuana possession for sale is a felony. It doesn’t matter how much was sold, or whether or not the sale was witnessed. Law enforcement can base an arrest for sales on any or all of the following:

1) The amount of marijuana that was found;
2) The manner in which it is packaged;
3) Large amounts of cash;
4) The presence of a scale and or Baggies, which is typically used by drug dealers.

Any or all of the above would be enough for the district attorney to file formal charges. Law enforcement will almost always take the cell phone of someone they suspect to be selling marijuana and the district attorney can then use any information on that cell phone to further support the charges.

For prosecutors to prove their case, they must prove that:

1) The defendant possessed a controlled substance;
2) The defendant knew of its presence;
3) The defendant knew of the substance’s nature or character as a controlled substance;
4) When the defendant possessed the controlled substance, he/she intended to sell it;
5) The controlled substance was marijuana; and
6) The controlled substance was in a usable amount.

To be found guilty of transportation of marijuana, the prosecution must prove that:

1) The defendant transported a controlled substance;
2) The defendant knew of it presence;
3) The defendant knew of the substance’s nature or character as a controlled substance;
4) The controlled substance was marijuana and
5) The marijuana possessed by the defendant weighed more than 28.5 grams.

In a recent case, an investigation lead by the Newport Beach Police Department resulted in the seizure of 300 marijuana plants and about $24,000.00 in cash, after searching several homes in Orange County, California. As a criminal defense attorney my first thought is, was the search legal? Did the officers obtain search warrants before entering the homes and if so, were the search warrants obtained legally, following the criteria needed to obtain a search warrant.

According to authorities, in this particular situation, the initial investigation lead officers to indoor marijuana growing in Laguna Niguel and Huntington Beach. The information they obtained further lead them to search a home in Lake Forest. The search of the home in Lake Forest resulted in officers obtaining additional information on a commercial building in Huntington Beach where more marijuana growing plants were found.

One man was pulled over and arrested and reportedly in possession of 24 pounds of marijuana when he was stopped. He has been booked on suspicion of transportation and sale of marijuana. Another man was taken into custody at his Laguna Niguel home after detectives found marijuana grow in his home, and 300 marijuana plants. A woman was taken into custody after searching her Lake Forest home and booked on suspicion of transportation and sale of marijuana. Another man and woman were arrested on suspicion of possession of marijuana for sale after a commercial building in Huntington Beach was searched and officers found more marijuana growing as well as nine pounds of marijuana. The marijuana seized in all, reportedly has a street value of about $200,000.00.

In this situation, there were several people involved, as well as several locations. This is an example of how crucial it would be to have an attorney who is experienced in not only criminal defense, but also, someone who has an understanding of the laws as they relate to illegal search and seizure. The officers involved in this investigation were required to follow the very specific laws as they relate to the proper procedures to obtain search warrants and therefore, this must be looked at very carefully, paying close attention to each detail that lead to each home and/or individual search.
If you or a loved one has been arrested for possession for sale of marijuana, contacting an experienced criminal defense attorney in the county in which you are being charged can make the difference in felony possession and misdemeanor possession. An experienced drug defense attorney knows that police routinely use unreliable informants, defective search warrants, invasive tactics and other illegal methods to bust users, growers and dealers of marijuana. An aggressive attorney who looks closely at the arresting officers’ conduct, could make the difference in the case being dismissed.

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In California, the definition of robbery is the taking of someone else’s property from the person’s body or immediate possession, when accomplished by force or fear. This is a felony offense, punishable by two to nine years in State Prison. To be convicted of robbery, the prosecution must prove:

1) You took property that didn’t belong to you;
2) You took property from another person’s possession or immediate presence;
3) You took the property against the person’s will;
4) You used force or fear and
5) You took the property with the intent to deprive the owner of it permanently or for such a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property.

Let’s take a look at an actual case to see whether or not the elements necessary are met. A couple was robbed at gunpoint while sitting in their car. According to authorities, while sitting in the back seat of their car, they were startled when a man appeared at the window, tapped on it and pointed a gun at them. He then demanded money from them. Fearing that they would be shot, the woman opened the door and handed her purse to the man. He then ran from the scene. In this case, all five of the elements appear to have been met. The defendant did take property that didn’t belong to him. The property being the woman’s purse. He took property from another person’s possession or immediate presence. Again the purse, which she handed directly to him. He took it against her will and used fear or force to take it. And, he did intend to deprive her of her property in that he had no intention of giving it back. At least this is what we can assume based upon the immediate information.

In California, Robbery is a Felony. However, the length of your sentence depends on whether you are convicted of 1st Degree Robbery or 2nd Degree Robbery.

1st Degree Robbery carries a sentence of three to nine years in State Prison.

2nd Degree Robbery carries a sentence of two to five years in State Prison.

If there is more than one victim, as in this case, you face conviction of, and punishment for, multiple counts of robbery.

Also, this man faces the possibility of sentence enhancements, along with the above penalties. Some sentence enhancements include:

1) Great bodily injury during a robbery,
2) Robbery for the benefit of, in association with or at the direction of a criminal street gang and,
3) The use of a gun during the robbery. An additional ten years in prison can be imposed if you use a gun, twenty years for firing a gun and 25 years to life for killing or seriously injuring another person with a gun while committing the crime of robbery.

There are legal defenses to robbery. Some of the more common ones are:

1) You didn’t intend to take the property;
2) No force or fear was used;
3) Claim of Right;
4) Mistaken Identity; and
5) False Accusations.

There are a variety of situations in which these defenses can and should be used. A good Criminal Defense Attorney, specializing in Robbery will know how to use these defenses to get the best possible outcome for his client.

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In California, Assault With A Deadly Weapon (ADW) is defined as an assault that is committed with any type of deadly weapon or by means of force that is likely to cause great bodily injury to another. Simple Assault is defined as an unlawful attempt, coupled with a present ability to commit a violent injury on another person.

It is surprising what can be considered a deadly weapon. Clients come to me after being arrested for ADW and ask me how they can possibly be charged with this crime when they had no weapon. They are always shocked when I explain to them that even something as seemingly innocent as a shoe can be considered a weapon. One of the elements of this charge is “assault that is committed by means of force that is likely to cause great bodily injury to another.” So, using the example of a shoe, if someone is being kicked repeatedly in the head and/or other parts of the body, the District Attorney can charge you with ADW, alleging that the shoe was the deadly weapon.

A “deadly weapon” is defined as any object that is capable of producing death or great bodily injury to a person. For example, swinging a beer bottle at another, threatening to stab someone in the neck with a sharp pencil or using your car to hit another person or another person’s car while they are inside, all qualify as deadly weapons.

ADW is usually charged as a felony. However, the prosecution can decide to file it as a misdemeanor depending upon the circumstances. This is referred to as a “wobbler” meaning that it can go either way. In deciding whether to file as an ADW felony or as a misdemeanor, three important facts must be determined:

1) The type of weapon allegedly used;
2) Whether or not the alleged victim sustained injuries and if so, how serious; and
3) The nature of the victim. Meaning, was the alleged victim an officer, firefighter or other “protected” person.

To be convicted of ADW, the prosecution must prove that the defendant did assault someone (keeping in mind the legal definition of assault) and that the assault was committed with a deadly weapon, or other means of force likely to cause great bodily injury.

Unfortunately, innocent people are accused of ADW all the time. The accuser often times exaggerates or lies to the police officers when, in reality, it may have been an act of self-defense or defending another.

Fortunately, there are defenses to Assault with a Deadly Weapon. Having an experienced criminal defense lawyer who has experience in defending ADW charges is curtail. Because the alleged victim does not have to have sustained any injury in connection with the ADW charge, it is easy to be falsely accused of and arrested for this crime.

A skilled Criminal Defense Attorney will be familiar with the different types of defenses available to someone being charged and will know how to present these defenses to the prosecution in order to get the best possible outcome. These defenses include:

1) The inability to actually carry out the assault;
2) Self-defense or defense of another;
3) Consent (an example would be participation in a fight club);
4) Lack of intent;
5) Insufficient evidence; and
6) Misconduct or failure to follow proper procedure by the law enforcement agency.

Anyone being accused of Assault With A Deadly Weapon, should seek the advise of an attorney who is familiar with all the Courts in the County within which the case is pending. An attorney, who has a good working relationship with the individual Judges, District Attorneys, Court Clerks and Probation Department, as well as the Court staff, will be in a better position to get the charges dismissed or reduced.

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Possession of a controlled substance is a crime in California. However, possession with intent to sell is a much more serious crime with more severe consequences. It is unfortunate, but most people who are arrested for drug related charges are typically addicts who require some sort of treatment for their addiction. But, what they face if convicted, may include:

1. Probation;
2. 1 year in County Jail; or
3. 2, 3 or 4 years in a California State Prison.

Possession for sale of marijuana is a felony and is punishable by up to 4 years in State Prison.

Crimes involving illegal drugs may include any of the following:

1. Possession for personal use;
2. Possession of drugs with intent to sell or distribute;
3. Trafficking, transporting, buying, or selling;
4. Distribution
5. Cultivating or manufacturing; and
6. Conspiracy to do any of the above.

To prove intent to sale, the prosecution does not need to prove that you sold anything, only that you intended to. This proof can be made based on the following:

1. The amount of drugs found;
2. Other items found such as baggies or scales;
3. Conversations with undercover officers or informants; and
4. High volume of traffic to and from you residence.

When a police officer arrests someone for possession of narcotics, they will almost always take possession of that person’s cell phone. They will review the text messages looking for any sign of sales, whether it is the person looking to buy something or, whether someone is requesting to buy from that person. Often if the text messages reveal that the person is looking to buy, the officers will pressure the person into revealing who their supplier is. This is one way police officers are able to find and arrest people for drug sales.

There are drug related charges that may be prosecuted as misdemeanors. They include: possession of marijuana, being under the influence of a drug and possession of drug paraphernalia.

Fortunately, there are defenses to all of these crimes. Some include:

1) Illegal search and/or seizure;
2) No intent to sell;
3) Lack of possession; and
4) Lack of knowledge.

If convicted of a drug related charge, alternatives to jail and or prison time should be the goal of your attorney. There are many drug rehabilitation programs available for those who can afford it. There are also “sober living” houses, which typically are more affordable and are designed more for those who are on their way to recovery. Sober living houses are a sort of second step in the recovery process and can be a very successful tool for someone who is serious about getting and staying sober.

Other alternatives include Prop 36 and PC 1000. For more information on these programs see the link provided.

Every county and every courthouse has it’s own way of doing things. It is important to have an attorney who is familiar with how things work in the County where your case is pending. An attorney who is experienced in defending drug related charges and who has a good relationship with the Judges, prosecutors, probation officers and the court staff, will be in a much better position to get the best possible outcome for their client.

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In the wake of the not guilty verdict of George Zimmerman, for shooting and killing Travon Martin, a young teenage boy, people are struggling to understand how the jury came to the decision that it did. To understand the jury’s decision, it is important to understand the defense of self-defense, and what constitutes self-defense. Also important to understand is the charge of second-degree murder and what elements must be met to charge and convict someone of this crime.

As we know, in the People vs. Zimmerman case, the District Attorney charged George Zimmerman with second-degree murder. However, the elements to convict someone of this crime were not met. The charge of second-degree murder, typically involves someone killing another person “impulsively and without premeditation”. However, the law defines second-degree murder, and it’s elements as follows:

1. That you committed an act that resulted in the death of another person – In the People v. Zimmerman case, we know this to be true. 

2. That it was committed with malice aforethought – To determine if this element existed, we must first understand what “malice aforethought” means. 
Basically, it means that at the moment the murder occurred, the killer intended to kill the victim, but prior to that moment had no intent to do so.

3. It was without lawful excuse or justification – Is self-defense considered a “lawful excuse” or “justification”? In the eyes of the law, yes.

Self-defense is a legal defense that excuses conduct, which would otherwise be criminal. However, California self-defense laws are very specific and do not apply to all situations. The following are conditions that must be met in order to justify self-defense:

1. A reasonable belief that you are in imminent danger of being killed, seriously injured, or unlawfully touched.

2. A belief that immediate force is necessary to prevent that danger, and
3. That you use no more force than is necessary to defend yourself against that danger.

The true meaning of self-defense isn’t perfectly clear, but when asserted properly becomes a legal defense that can result in immunity against prosecution or acquittal as we saw in the Zimmerman case.

Another documented case where the defense of self-defense was successfully argued is People vs. Deiran Green, in which the defendant was indicted for malice murder, felony murder aggravated assault, and possession of a knife during the commission of a felony after he punctured the femoral nerve of a man with a knife during a physical struggle. Green filed a motion to dismiss the indictment on the grounds that he was immune from prosecution under the self-defense laws.

The Court determined that Green never intended to stab or injure Waldon, the victim; that he had taken the knife with him because he didn’t trust Waldon and further that Green told Waldon he wasn’t going to hurt him, that he just wanted his rent money. The trial court granted Green’s motion finding that Waldon had attacked Green, reasonably putting Green in fear for his life.

The State appealed the trial court’s decision stating that there was no justification for the self-defense defense because the use of force is a necessary prerequisite and that there was no evidence that Green used force against Waldon. However, the appellate court confirmed the trial court’s findings, stating that defendant would have been justified in using deadly force against Waldon to protect himself, although he was not required to do so in order to be immune from prosecution.

The laws regarding murder and the defenses thereto are complicated. Each case has unique circumstances that must be carefully examined to determine exactly what type of charge is appropriate and what type of defense may apply.

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The juvenile justice system is different from the adult justice system. In Orange County Juvenile Court, the focus is on treatment and rehabilitation for the juvenile while the adult justice system focuses on punishment. However, depending upon the charge, a juvenile can be prosecuted as an adult and be subject to the same penalties as an adult. In a situation where a juvenile is tried as an adult, it usually involves crimes of violence. Juveniles 16 or 17, who commit serious felonies, can be tried as an adult. Also, a juvenile 14 or older being charged with murder can be tried as an adult. However, even if a juvenile is tried as an adult, they are still treated different. There are more options in terms of how and where they are prosecuted and how and where they will serve their sentence.

There was a recent incident where four juveniles were detained after they were seen running from a car that had crashed into a pole. Investigators believed that the car was stolen.

These young individuals are facing serious charges, and at their young age, can affect them for the rest of their lives. As devastating as something like this is to a parent, one of the most important questions a parent can ask themselves is: How do I protect my child? Teens are still not mature enough to stop, think and really consider how serious their actions are and what the consequences might be. Especially if they have never been in trouble with the law and have never had legal consequences. For this reason, it is extremely important that these minors be represented by experienced attorneys, who have experience in not only defending these types of charges, but who are also experienced juvenile defense attorneys.

Once a juvenile is arrested for a crime, there are a few different ways law enforcement may proceed. Here are some examples:

1. Informal contact with parents,
2. Public or private diversion,
3. Citation and referral to probation, and
4. Arrest.

Once the case is submitted to probation, probation has limited discretion whether or not to submit the case to the district attorney or proceed informally. If the case is submitted to the district attorney, they then decide whether to file or dismiss the case. A lawyer, specializing in juvenile criminal matters will be able to advise and guide parents and their child through these procedures.

It is extremely important that, if your child is arrested for a crime, an attorney familiar with the Orange County Juvenile Court should be retained. Being familiar with the Judges, District Attorneys, Court Clerks and Probation Department, will help facilitate the best possible outcome for your child.

It is important to note that if your child has been convicted of a crime, their record should be sealed and/or destroyed. To be eligible for sealing a juvenile record, the child must be 18 years old or 5 years must have passed from the last arrest or discharge from probation.

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After the 2011 Seal Beach shootings, where a man walked into a hair salon carrying 3 guns, using at least two of them to shoot and kill 8 people, there was a resurfacing of the cry for gun control. Whether or not the man possessed the guns legally, it appeared to be obvious is that there were no gun laws that could have prevented this man from killing these people.

The Second Amendment to the US Constitution protects an individual’s right to possess a firearm and to use that arm for traditionally lawful purposes, such as self-defense within the home. Clearly that was not the case in the Seal Beach shootings. Additionally, there are longstanding prohibitions and restrictions on firearms possession.

The Brady Handgun Violence Prevention Act is an Act of the United States Congress that instituted federal background checks on firearm purchases in the United States. The Brady Act requires that background checks be conducted on individuals before a firearm may be purchased from a federally licensed dealer, manufacture or importer, unless an exception applies. Further, under the Brady Act, you cannot have a gun for personal or business if you:

1. Were convicted of a crime punishable by being in prison for more than one year. Convicted felons may not possess firearms;
2. Are a fugitive from justice;
3. Are addicted to, or legally use, any controlled substance;
4. Have been ruled mentally defective by a court, or are committed to a mental institution;
5. You are an illegal alien living in the United States unlawfully;
6. Received a dishonorable discharge from the U.S. Armed Forces;
7. Renounced your U.S. citizenship, if you are a U.S. citizen;
8. Are subject to a court restraining order that involves your “intimate partner,” your partner’s child, or children; or
9. Were convicted of misdemeanor domestic violence in any court.

State gun laws vary considerably from state to state. California gun laws allow almost anyone to buy a firearm without a license. The only people generally prohibited are felons, persons convicted of certain misdemeanor offenses, persons addicted to narcotics, persons who suffer from mental illness and minors. Therefore, in California if you don’t fall into one of these categories, there are ways to exercise your Second Amendment right to bear arms.

I often get calls from individuals who tell me they are being charged with the crime of “felon in possession of a firearm”, and that they were unaware that their prior felony conviction prohibited them from possessing a firearm. Unless an individual was specifically told this, either in open court by the judge or by their attorney, or unless it was written in the paperwork associated with their conviction, they may not even be aware that they are breaking the law.

As an Orange County Criminal Defense Attorney, I am a strong believer in the Constitution of the United States and in protecting the rights of individuals. The “right to carry” laws are federal and state constitutional rights. The law has common sense protections, and as a qualified attorney, who is knowledgeable in the field of criminal defense, can help classify the exceptions for someone being charged with possession of firearms.

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