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I frequently get calls from young men and women who are trying to get a job and have found that their history in juvenile court has become a problem. I find that people are under the impression that their juvenile record is automatically sealed and destroyed after the age of 18 years. What they don’t realize, is that this won’t automatically happen until after you reach the age of 38.

Welfare and Institutions Code, Section 826 provides that, if you have not petitioned the court for an order to seal and destroy your record, it will automatically be destroyed after you reach the age of 38. However, between the ages of 18 and 38, most young adults will apply for several jobs and run the risk of being turned down if their past history is revealed. My advise to young adults is always that they seek to have their record sealed and destroyed as soon as the law allows. Often times, young people don’t realize that their juvenile history is accessible until a prospective employer advises them. If this is how it is discovered, usually the chances of being hired are slim to none.

Welfare and Institutions Code, Sections 389 and 781 provides that juvenile court records, as well as arrest records, may be sealed and destroyed once one of the following has occurred:

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In California, when someone is convicted of a crime, whether felony or misdemeanor, the Judge has the discretion of imposing probation in lieu of jail time, or in addition to jail time. There are sentencing guidelines that a judge uses when imposing a sentence, but, the Judge may elect to allow you to remain free if you agree to be on probation and following the terms and conditions of the of the probation. There are two types of probation, summary or informal probation and formal probation. The following is an explanation of how each works.

Summary/Informal Probation

Summary or informal probation is usually associated with a misdemeanor conviction. It is much less restrictive in that you do not have to report to a probation officer and the terms and conditions usually involve very common sense guidelines. For instance, if you are placed on informal probation for a petty theft, the terms of the probation may include staying away from the establishment where the theft took place, along with standard orders to obey all laws and not get into trouble.

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In California it is illegal for a felon to possession a weapon. Penal Code 12021 states that no convicted felon may purchase, receive, own or possession a firearm. But what does “possession” of a firearm mean? Does it mean that a convicted felon must have physical possession on their person to be in violation? No. In addition to physical possession, it is illegal for a felon to have constructive possession of a firearm. Constructive possession means that a felon cannot have a gun in their house or car. It doesn’t matter whether or not the felon is present with the weapon. If the weapon is in their home or car, this is considered constructive possession and is thus a violation of the law.

There are three classes of individuals that are prohibited from possessing a firearm:

1. A felon, meaning any person who has been convicted of a crime, whether violent or not, that is punishable by a prison term of more than one year.

2. Any person who has been convicted of certain misdemeanors.

3. Any person who is addicted to a narcotic drug.

Lets take a closer look at the three classes mentioned above:

What is a Felon: A felon is anyone who has been convicted of a felony offense, in any state, under the United States Federal Law, that results in a felony punishment, or is sentenced to a federal facility for more than 30 days and a fine of more than $1,000.00.

Specific Misdemeanor Convictions: If you own, possess or receive a gun and are convicted of violating any of the following penal codes: 12021(a), 12021(b), or 12021.1. Other misdemeanor offenses that may apply are: assault with a deadly weapon, brandishing a weapon and some sex crimes.

Anyone Addicted to a Narcotic: Someone who is addicted to a narcotic is considered to be emotionally and physically dependent on that narcotic and thus have a tolerance to its effects.

What Must the Prosecution Prove to be Convicted of Violating the Felon with a Firearm Law:

1. You must fall within one of the above categories.

2. You must have owned, possessed, bought or received a firearm.

3. You knew of the presence of the firearm.

Lets take a closer look at numbers 2 and 3 above for purposes of defenses to the charge of felon in possession of a firearm. For the prosecution to prove that you “owned, possessed, bought or received” a firearm, it must be proved that you did in fact possess a firearm.

An example might be that the defendant is living and/or renting a room in a home where the homeowner has a firearm. While on formal probation, a random search of the defendant’s place of residence reveals a firearm in the home. Because the homeowner owns the firearm, and the defendant did not have constructive possession of it, he cannot be charged with felon in possession of a firearm.

Another example might be that you borrowed a friend’s car. The friend has a firearm, which he keeps under the seat of his car. You get pulled over and the police officer notices part of the firearm sticking out from under the seat. The officer will, more than likely, arrest you for felon in possession of a firearm. However, if it can be proved that: 1) you are not the owner of the car and 2) the firearm belonged to the owner of the car, then you are not guilty because you had no knowledge of the presence of the firearm.

A conviction for felon in possession of a firearm can carry severe penalties. The crime itself can result in a felony conviction under certain circumstances. This then increases the exposure of prison time that the defendant is facing. The more felony convictions a person has, the longer the prison sentence prosecutors will seek.

If you or someone you know has been arrested for or being charged with, felon in possession of a firearm, it is important to hire a criminal defense lawyer who has experience in the County in which the case is pending. Sometimes early intervention, before the charges are even filed, can result in the prosecution rejecting the case without ever being filed.

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Border Patrol Agents recently arrested 9 men and seized 1,000 pounds of marijuana in Laguna Beach. While patrolling the Orange County coastline at midnight in Laguna Beach, the Border Patrol spotted a boat near Crystal Cove State Park. There were 7 men on the boat and 2 men waiting on the shore in an SUV. When the men began unloading and loading, the Border Patrol arrested the men and seized 26 bundles of marijuana. The street value of the marijuana is reported to be approximately $1.8 million.

In California, it is a felony to sell, transport or distribute marijuana and the penalties can be quite harsh. However, the penalties are significantly less if the person is transporting or giving away less than an ounce of marijuana. It then becomes a misdemeanor and is punishable by a fine. But, even selling a small amount of marijuana is still a felony and can result in serious consequences.

Drug Possession with Intent to Sale

Law enforcement does not have to actually see a sale taking place in order to charge someone with felony possessio with intent to sell. They can rely on the circumstantial evidence at the time of the arrest. Typically, in a situation where no sale was witnessed, the amount of marijuana and the way it is packaged is used as evidence of sales. Also, the presence of scales for weighing, baggies for packaging and/or large amounts of cash are considered evidence of sales. The police also look for text messages and pay/own sheets.

Transportation and/or Distribution of Drugs

When an individual or group of people knowingly transfers an illegal drug from one place to another, they have committed the crime of transportation of narcotics. It doesn’t matter whether they are transporting a small amount or a large amount, it is a serious offense. The act of selling drugs to others is distribution.

Consequences of a Conviction for Drug Trafficking and/or Distribution

There are state and federal laws that govern sentencing of drug traffickers. The penalties vary depending upon the circumstances. Factors that are taken into consideration are: 1) What type schedule drug was it; 2) The amount of the drug; 3) Were minors involved; 4) Was the defendant part of a group or an individual; and 5) The location where the offense took place.

If convicted of drug trafficking, you could be facing many years in Federal Prison. However, there are defenses to this charge, which an experienced criminal defense attorney will be familiar with. Because the sentencing depends upon so many different variables, it is important that the details surrounding the arrest, seizure and interrogation be carefully looked at by your attorney. Paying close attention to the laws as they apply to law enforcement when it comes to search and seizure, as well as any violation of your amendment rights.

The Fourth Amendment guards against illegal search and seizure by law enforcement. Unfortunately, it is not uncommon for police personnel to ignore the law regarding search and seizure, which often times goes unnoticed. A good criminal defense attorney should scrutinize all aspects of the search, seizure and arrest, looking for mistakes or misconduct by law enforcement personnel.

If you or a loved one has been arrested for drug transportation/trafficking or distribution, contact an experienced criminal defense lawyer in the County in which the arrest took place. Protecting the rights and mitigating the potential prison exposure for you or your family member should be your attorney’s first priority.

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Border Patrol Agents recently arrested 9 men and seized 1,000 pounds of marijuana in Laguna Beach. While patrolling the Orange County coastline at midnight in Laguna Beach, the Border Patrol spotted a boat near Crystal Cove State Park. There were 7 men on the boat and 2 men waiting on the shore in an SUV. When the men began unloading and loading, the Border Patrol arrested the men and seized 26 bundles of marijuana. The street value of the marijuana is reported to be approximately $1.8 million.

In California, it is a felony to sell, transport or distribute marijuana and the penalties can be quite harsh. However, the penalties are significantly less if the person is transporting or giving away less than an ounce of marijuana. It then becomes a misdemeanor and is punishable by a fine. But, even selling a small amount of marijuana is still a felony and can result in serious consequences.

Drug Possession with Intent to Sale

Law enforcement does not have to actually see a sale taking place in order to charge someone with felony possessio with intent to sell. They can rely on the circumstantial evidence at the time of the arrest. Typically, in a situation where no sale was witnessed, the amount of marijuana and the way it is packaged is used as evidence of sales. Also, the presence of scales for weighing, baggies for packaging and/or large amounts of cash are considered evidence of sales. The police also look for text messages and pay/own sheets.

Transportation and/or Distribution of Drugs

When an individual or group of people knowingly transfers an illegal drug from one place to another, they have committed the crime of transportation of narcotics. It doesn’t matter whether they are transporting a small amount or a large amount, it is a serious offense. The act of selling drugs to others is distribution.

Consequences of a Conviction for Drug Trafficking and/or Distribution

There are state and federal laws that govern sentencing of drug traffickers. The penalties vary depending upon the circumstances. Factors that are taken into consideration are: 1) What type schedule drug was it; 2) The amount of the drug; 3) Were minors involved; 4) Was the defendant part of a group or an individual; and 5) The location where the offense took place.

If convicted of drug trafficking, you could be facing many years in Federal Prison. However, there are defenses to this charge, which an experienced criminal defense attorney will be familiar with. Because the sentencing depends upon so many different variables, it is important that the details surrounding the arrest, seizure and interrogation be carefully looked at by your attorney. Paying close attention to the laws as they apply to law enforcement when it comes to search and seizure, as well as any violation of your amendment rights.

The Fourth Amendment guards against illegal search and seizure by law enforcement. Unfortunately, it is not uncommon for police personnel to ignore the law regarding search and seizure, which often times goes unnoticed. A good criminal defense attorney should scrutinize all aspects of the search, seizure and arrest, looking for mistakes or misconduct by law enforcement personnel.

If you or a loved one has been arrested for drug transportation/trafficking or distribution, contact an experienced criminal defense lawyer in the County in which the arrest took place. Protecting the rights and mitigating the potential prison exposure for you or your family member should be your attorney’s first priority.

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One of parents’ worst nightmares is to find out that their son or daughter has been arrested and/or detained by the Police. Once the initial shock has worn off, a parent goes into immediate protection mode. The question most parents ask themselves is what do I do to protect my child. This is the correct frame of mind for a parent to be in. Juveniles make mistakes and most have never known, or been exposed to legal consequences. Preserving your child’s record, so that their college goals and future employment are not affected negatively, is the first priority.

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, there are crimes in which a juvenile can and must be prosecuted as an adult and be subject to the same penalties as an adult. Welfare & Institutions Code Section 602 explains that if a minor is accused of certain violent crimes, they must be tried as an adult. Here is a list of crimes that fall in this category:

1. Murder – It must be alleged that the minor personally murdered another;
2. The following sex crimes, if the prosecution alleges certain other allegations referred to in Penal Code section 667.61:

a. Rape;
b. Forcible sex offenses in concert with another;
c. Forcible lewd and lascivious acts on a child under the age of 14;
d. Forcible sexual penatration;
e. Sodomy or oral copulation by force, violence, menace, duress or fear;
Other “violent crimes”, as well as some of the above crimes, may be prosecuted as an adult but the determination is based on the following:

a. The severity of the offense
b. The past criminal history of the minor;
d. Whether or not the minor can be rehabilitated;
e. The sophistication of the alleged crime.

In a situation where a juvenile is tried as an adult, as noted above, it involves crimes of violence. 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.

Once a juvenile is arrested for a crime, there are a few different ways law enforcement may proceed. (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. An Orange County Criminal Defense Attorney, 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 Juvenile Court system 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, 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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A 30-year-old Anaheim man was arrested on suspicion of two counts of child molestation. Two boys, under the age of 16, have come forward and accused the youth soccer referee of molesting them near his home in Anaheim. The boys are not associated with the Huntington Beach soccer league, which reportedly the defendant was employed as a referee. Because the accused worked with youth as a referee, authorities are investigating any other potential victims.

Being arrested and charged with child molestation is one of the most serious crimes a person can face. Not only because of the serious nature and consequences of the crime, but also the effect that it has on a person’s life. Just the accusation alone can ruin a person’s reputation and damage relationships with family and friends.

An experienced criminal defense lawyer, with experience in sex crimes, should look at all possible motives for false accusations. Innocent people are falsely accused all the time, whether by mistake or on purpose. A false accusation could be the act of someone who is angry or vindictive against the accused and should not be discounted.

Fortunately, there are defenses to child molestation and effective strategies that an experienced criminal defense attorney can use to help clear their client of such a serious charge. Mistake in identity is not that uncommon, especially when young children are involved. Also, young children are easily influenced and convinced. In a situation where an adult may believe that something happened, that adult may question the child in such a way as to elicit an accusation. Also, in certain situations, a child will falsely accuse someone because they don’t want to say who the real perpetrator is.

Depending upon the specific accusations, a defense might be that there was no intent to cause sexual arousal or that the touching was accidental. These types of things can sometimes be exaggerated and blown out of proportion. These are the types of defenses that a criminal defense lawyer needs to aggressively pursue.

When someone is charged with this type of crime, there are so many details that must be addressed. When reviewing the police reports, witness statements and the statement of the victim, your lawyer should be looking for inconsistencies, errors and mistakes. Taking the prosecutions case apart, piece by piece, and investigating all aspects of the circumstances surrounding the initial accusation is extremely important and may result in a complete dismissal. Remember, often times there is no evidence and no witnesses and therefore, the prosecution is relying strictly on the testimony or statements of the accuser. As previously discussed, all facts surrounding the accusations need to be scrutinized to determine if the child has in any way been coerced or is for some reason, falsely accusing the defendant.

In situations where the evidence is overwhelmingly against the defendant, then it is the responsibility of the lawyer to do his best to present to the prosecution, or jury, the other side of that person. Let them know the good things about the defendant. Get character letters from friends, work associates, teachers or professors, anyone who knows the other side of the defendant. After presenting the defendant in the best light possible, a good defense lawyer should then fight aggressively to mitigate the amount of time the defendant will ultimately spend in prison.

If you or anyone you know has been arrested, or accused, of a sex crime, contact an aggressive criminal defense attorney in the County where the charges are pending and do not speak to anyone else, including the police, until speaking with an attorney first.

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In California it is possible to avoid going to jail for a simple drug possession case. Drug Diversion programs are an alternative to serving time for those who qualify. California Penal Code 1000 and Proposition 36 are two types of diversion programs which some defendants are eligible for.

California Penal Code 1000 (“PC 1000”), allows for defendants accused of possession of a controlled substance, if eligible, to enter a drug program rather than go to jail. This is also known as Deferred entry of Judgment (“DEJ”). The purpose behind these types of programs is to offer help to people who have a drug problem. The majority of people who are arrested for possession and drug sales are suffering from an addiction. While it is necessary to be held accountable for criminal actions, sending a drug addict to jail or prison typically will not deter the behavior in the future. However, committing to a drug program may make the difference between a one-time arrest for drugs and a lifetime of drug use.

These programs are time-consuming and strict for a reason. The defendant is expected to take the program seriously and commit completely with the goal of staying clean and sober. The ability of the defendant to stay in the program and complete it successfully will most definitely be an indication of their success in the future with sobriety. These types of programs should be looked at as an opportunity that not everyone has and looked at as a turning point in their future.

The following is a list of eligibility requirements for “PC 1000”: (1) The defendant should not have any prior offenses on his record involving controlled substances; (2) Defendant’s record should not reflect any revocation of probation or parole; (3) The offense defendant is currently being charged with must not involve violence; (4) The defendant should not have any felony convictions within five years of the current offense. If the defendant meets these requirements, the prosecution will make a determination of whether or not the program will be appropriate.

If the defendant decides to enter the program, he will plead guilty to the charge however, the sentencing will be delayed pending the successful completion of the program. If the defendant completes the program successfully, and stays out of trouble, the charges will be dismissed.

Proposition 36 is similar to PC 1000, however there are some differences. The eligibility requirements are much the same but unlike PC 1000, Prop. 36 may be available for someone with a prior violent felony conviction if: the defendant has been out of prison for at least five years with no felony or misdemeanor convictions involving violence for five years. Also unlike PC 1000, the defendant must plead guilty to the charge(s) and then be sentenced. Rather than going to jail, the judge can place the defendant on formal probation and require that a drug treatment program, lasting up to one year, be completed.

In addition to the drug treatment program, the judge may also require additional conditions of probation. Some of the additional conditions may include random drug tests, regular check-ins with a probation officer, court appearances requirements to pay treatment costs and other restrictions on the defendant’s lifestyle. Once the program is completed successfully, the conviction will be set aside and the charge(s) dismissed.

With both Prop 36 and PC 1000, if the defendant does not successfully complete the program, the sentence that would have been given or has been given, shall be enforced. Also, with both programs, a charge of possession for sales disqualifies a defendant from either program. For this reason, anyone being charged with a drug related offense should seek the advice and assistance of an experienced criminal defense attorney who will explore the possibilities of having a possession for sale reduced to a simple possession in order to allow the defendant to enter one of the drug diversion programs discussed above.

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Westminster Police arrested a 47-year-old man as he was attempting to break into a home while the residents were present. According to authorities, police officers responded to a 911 call of a man attempting to break into a home. The woman occupant advised that he was trying to get in through both the front and back doors. As officers arrived, they caught the suspect just inside the entryway of the home, still wearing gloves. He was arrested on suspicion of residential burglary. Authorities are also investigating whether this suspect may have been involved in other similar burglaries in the area.

First-degree burglary or residential burglary is serious not only because it is a felony, but also because it considered a “serious felony” under California’s Three Strikes Law and if convicted carries a mandatory prison sentence and a Strike. However, that being said, there are defenses to residential burglary and the prosecution does have the burden of proof.

In order for the prosecution to prove 1st Degree or Residential Burglary, it must be proven that the defendant intended to commit a crime or petty theft, once inside. Here are a few examples of intent:

If a person entered a residence, whether legally or not, and then once inside decided to commit a theft, it is not 1st degree burglary because the intent was formed after he entered the residence. Similarly, if a person is invited to a home, and once inside decides to commit a theft, it would not be considered 1st degree burglary because the intent was formed after they were inside.

However, take a situation where someone is in another’s home with permission, but knows that there is a piece of jewelry in the bedroom and decides to go into the bedroom to steal it. This can be charged as 1st degree burglary because they entered the bedroom with the intent to take the piece of jewelry. The same holds true if someone is invited to a home, and accepts the invitation because they plan on stealing something once inside. This can be charged as 1st degree burglary even though they were invited because; they intended to commit a theft once inside the home.

As you can see, it can get a bit tricky for the prosecution to prove intent. This is why the initial contact with the authorities is extremely important. When being questioned by police, the main focus of the investigating officers is to get the person to admit that they intended to commit the theft before they entered the dwelling, not after they were inside. They know that if the person arrested says that they decided to commit a theft after they entered the dwelling, then there is no intent and thus, no 1st degree burglary.

1st Degree Burglary vs. Second Degree Burglary. What is the difference?

First-degree burglary, also known as residential burglary is always filed as a felony. Simply put, it is the entering of any dwelling where someone lives. Second-degree burglary can be filed as either a misdemeanor or a felony and usually involves entering a commercial building.

Anyone who is facing a serious felony with the potential for a strike needs the advice and assistance of an aggressive, experienced criminal defense lawyer who is familiar with all of the defenses and requirements that go along with such a charge. Paying close attention to police conduct or misconduct at the time of the arrest and collection of evidence at the crime scene is extremely important. If proper procedures were not followed or if the suspect’s constitutional rights were in any way violated, a defense attorney may be successful in getting the case dismissed. In the absence of a dismissal, taking the case apart and finding holes in the police reports or prosecutions case may provide the attorney with enough to get the case reduced to a misdemeanor and thereby, avoiding a strike.

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A U.S. Customs and Border Protection Officer was convicted this week of raping two women, and has been sentenced to 6 years in State Prison. The 33 year old Fountain Valley man plead guilty to the 2009 rape of a woman whom he met and then raped after she blacked out from alcohol intoxication. The second woman, a prostitute, he met in 2010 when he picked her up and drove her to an industrial area. When the woman became frightened and tried to escape, he raped her and then fled the scene. The woman immediately reported the rape to authorities. The DNA collected from the 2010 rape was linked to the DNA which defendant had provided in the 2009 rape investigation.

Although this case appears to be pretty straight forward, reviewing all of the evidence and carefully taking apart, bit-by-bit, the evidence could have resulted in a different outcome for this man. We know that this man had sexual intercourse with these women because of the DNA evidence. But, too often innocent people are accused of rape for a variety of reasons. Discussed below are some defenses to the charge of rape, as well as the elements that must be proved for a conviction of rape.

Legal Defenses to rape: There are a number of possible defenses to rape to be considered when one is accused of rape. Because there requires little to no evidence to accuse someone of rape, innocent people are falsely accused. Emotional issues often play a role in false accusations, whether it is intentional or not. The fear of someone finding out about the sexual relationship or the guilt associated with having a sexual relationship with someone, can result in a person being falsely accused. Mistaken identity is also common in these types of cases.

1. False Accusation: Unfortunately, there are situations where a person is falsely accused of rape. An example might be that, after having consensual sex, one of the parties has feelings of guilt because they were involved in a committed relationship. But, rather than admitting to the infidelity, accuses the other party of rape. Also, a false accusation could result after being pressured and coerced by another to say they were raped.

2. The Accused Believed There Was Consent: If the accused did not have a clear understanding that the accuser did not want to have sexual intercourse, this may be a defense. Although, any indication from a party, at any time, that they want to stop, would constitute no consent.

3. There was no actual intercourse.

4. Lack of Sufficient Evidence: If there is no physical evidence and no witnesses, then it becomes one person’s word against the other and therefore, too difficult to prosecute.

5. Mistaken Identity: Because rape victims are traumatized and emotional, it is not uncommon to unintentionally identify the wrong person. If there was poor lighting during the attack, identification is more difficult. If the attacker is wearing a mask, identification becomes extremely difficult. Also, police lineups are often prejudicial and result in mistaken identity.

What Does A Prosecutor Have To Prove For A Rape Conviction

To be convicted of rape, it must be proven that: 1) The parties engaged in sexual intercourse; 2) That the sexual intercourse was accomplished by physical force, violence duress, menace, fear of bodily harm, fear of retaliation or fraud. There must also be a lack of consent.

What Is Lack Of Consent– The obvious is that the victim did not give consent. Other than saying “No”, other situations include: 1) The victim was too intoxicated to consent; 2) Due to some sort of a mental disorder, the victim lacks the capacity to give consent; and 3) The victim was unconscious, asleep or fraudulently convinced that having sex was necessary or acceptable.

The consequences of a rape conviction can be severe and can permanently damage a person’s life. Because of the issues dealing with the emotional and physical evidence of such a crime, often innocent people are accused of this very serious crime. For this reason, it is strongly advised that anyone who has been accused of rape, whether or not an arrest has occurred, should consult with an experienced criminal defense attorney. Often, an attorney who has a good working relationship with the District Attorney’s Office, can speak with the District Attorney reviewing the case for filing, and present information that may result in the case being rejected.

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