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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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A 21-year-old man was recently arrested for a September robbery after DNA linked him to the crime. This young man, along with an accomplice, is alleged to have robbed an antique store in Huntington Beach, and tied up and beat the store clerk. Investigators found DNA both within the store and on the clerk, which matched the 21 year old, suspect. A warrant for the suspect’s arrest was issued and he was arrested in Long Beach. It was also discovered that this individual has several prior arrests and a prior conviction for robbery.

Formal charges have been filed, which include second-degree robbery, assault with a firearm, criminal threats, false imprisonment and possession of firearm by a felon. In addition, felony enhancements have been added which include 4 additional charges for use of a firearm, and two additional charges for infliction of great bodily harm. Because this defendant has prior convictions, his prison time exposure is increased to additional and consecutive one-year prison terms for each prior.

What does “Felony Enhancements” mean?

In California when someone is being charged with a crime, there are a number of “enhancements” which can result in additional prison time if convicted. As it relates to this case, the enhancements are:

1. Use of a firearm during the commission of a felony – California law states that anytime a firearm is used during the commission of a felony, the prosecution can add an enhancement charge which could result in an additional 10 years to life, for each enhancement.

2. Infliction of Great Bodily Harm – If someone other than the defendant(s), is injured during a robbery, because robbery is a felony, the felony enhancement of great bodily harm can be added, resulting in additional time.

3. Prior felony convictions – When someone has prior felony convictions, prior crime enhancements may be added, which could mean an additional year for each enhancement. For prior violent felonies, the enhancement could mean an additional 5 years for each enhancement.

In this particular case, if convicted, this man will be facing prison time for the initial felonies, 40 years for the use of a firearm enhancements, 10 years for the prior felony conviction enhancements and additional time for the great bodily harm enhancements. As you can see, defending the enhancement charges is just as important as the initial charges themselves. One of the most important goals in a situation like this is to get rid of as many of the enhancements as possible. This is usually done as a plea bargain. The obvious benefit is the reduction in prison time but avoiding a Strike is equally as important. Pleading guilty to an enhancement as a result of a plea bargain may result in a lesser prison term, but in the long run, exposes the defendant to a potential third strike in the future.

Are there defenses to robbery?

Yes, Identification is a way of attacking some of the charges. Were there witnesses who came forward and did the police influence their identifications? Mistaken identity is one of the most common causes of false accusations.

DNA appears to be what is linking this suspect to this particular crime and therefore should be closely looked at by an experienced Orange County Criminal Defense Attorney. Because the crime scene is a business establishment and open to the public, the circumstances under which the defendant’s DNA came to be at the scene needs to be thoroughly investigated.

Another defense might be the possibility of a drug or alcohol addiction that is fueling such risky behavior and needs to be treated. A drug rehab program rather than jail or prison may be an option to present to the Court.

This defendant is currently being charged with 11 Felony Counts. If it is found that the defendant was in fact involved in this crime, an aggressive attorney should focus his attention on dismissing the enhancements and having as many of the charges dropped, reduced or dismissed. The focus should then shift to mitigating his client’s prison or jail time exposure regarding the remaining charges.

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With the passing of California’s Proposition 36, a revision to the Three Strikes Law, comes hope for an estimated 3,000 inmates who are currently serving life sentences, after being convicted of minor or non-violent felonies, as a “Third Strike”. Although the addition to the law is complicated, Penal Code Section 1170.126 provides for resentencing for those convicted and serving a life sentence for non-violent felonies. Persons, who qualify, may file a petition for a recall of sentence to request resentencing under Proposition 36. Section 1170.126 requires that the petition be filed within two years after the effective date of the passing of Prop. 36, or at a later date upon a showing of good cause.

In order to qualify for resentencing, as stated above, the third strike conviction cannot have been for a serious and/or violent felony, which includes but is not limited to: murder, rape, kidnapping, child molestation, first-degree burglary and some gun related convictions.

The passing of Prop 36 further prohibits Judges from imposing life sentences on most offenders, even if repeat offenders, for minor crimes. This will prove favorable for the individual who, during their younger years, may have been convicted of serious felonies, but managed to turn their life around for a respectable period of time, only to make a mistake and then be charged with a minor felony and sentenced to life in prison.

Because Proposition 36 is complicated, and there are exceptions based on one’s prior criminal history, anyone who is serving a life sentence for a third strike, should have a family member or friend consult with an experienced criminal defense attorney who can dissect the law as it relates to the three strikes revision. There is no doubt that there are many in Orange County California who will qualify for resentencing under Proposition 36.

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The Fountain Valley Police Department arrested a 36-year-old man on suspicion of cultivating and selling marijuana after they served a search warrant and discovered more than 150 marijuana plants. The plants were discovered in a home, along with a sophisticated growing operation. The street value is reported to be approximately $380,000.00. The man if facing charges of Cultivation of Marijuana and Possession of Marijuana for Sale.

As an Orange County Criminal Defense Attorney, my first thought is, was the warrant legal. Officers are required to follow very strict guidelines and laws as they relate to the proper procedures to obtain a search warrant. Close attention should be paid to what information lead to the home that was searched and how was the information obtained.

When hiring an attorney for this type of matter, it is important to look for an attorney who specializes in possession for sales cases, and just as important, who has a good knowledge of the law as it relates to illegal search and seizure.

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.

Possession of marijuana for sales a felony. When determining whether or not to file possession for sales as opposed to just possession, there are a number of things that the prosecution will look at. They are:

1. The amount of marijuana found;
2. The manner in which it is packaged;
3. The presence of baggies, which are used to package marijuana;
4. The presence of scales for weighing; and
5. Large sums of money.

If you, or someone you know has been arrested for possession for sale of marijuana, hiring an attorney in the county where the case is being filed can make the difference between being convicted of felony possession for sales and misdemeanor possession. A good defense attorney knows that, police routinely use unreliable informants, defective search warrants, invasive tactics and other illegal methods to bust users. A proactive attorney who looks closely at the arresting officers’ conduct, could make the difference in the case being dismissed.

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A Fountain Valley High School storage locker was broken into and thousands of dollars worth of baseball equipment stolen over the Labor Day weekend. According to authorities, the equipment was taken from the locker sometime Sunday night or early Monday morning. The value of the items taken is reportedly to be $3,000.00 to $4,000.00. According to the Coach of the high school team, the school is made up of 84% economically disadvantaged families and the theft is a huge blow to the program.

The authorities are investigating the theft and if the perpetrators are caught, they face serious charges including but not limited to burglary and possession of stolen property. Depending upon the circumstances surrounding the theft, the people involved, and their prior criminal record, the District Attorney could elect to add additional charges.

Burglary is defined under California law as “entering a structure with the intent to commit a felony or petty theft once inside.” Burglary is a “wobbler”, meaning that it can be charged as either a felony or misdemeanor, depending upon the circumstances and your prior criminal record.

There is First Degree Burglary and <Second Degree Burglary. The difference lies with the type of structure broken into. Residential burglary is first-degree burglary and is always filed as a felony. In this particular situation, because the structure broken into was a storage locker at a high school and not a residence, the District Attorney may elect to file it as a misdemeanor, second-degree burglary.

If charged with burglary, the prosecution must prove certain elements of the crime in order to be convicted. The elements are: 1) That you entered the structure; and 2) that you entered the structure with the intent to steal or commit another felony once inside.

Intent, when entering a structure plays a very important role in terms of what the ultimate charge will be. In petty theft or shoplifting cases, it can be mean the difference between a charge of petty theft and second-degree burglary. As an example, a young woman goes shopping with the intent to buy a lip gloss. But, once inside, she discovers that the lip gloss is more expensive than she anticipated and she steals it. The charge should be petty theft because, when she entered the store, her intent was to buy a lip gloss and only elected to steal it after realizing that it was too expensive. Keep in mind however, that the charge of petty theft is based on a value less than $950.00. Above that amount will result in a charge of grand theft.

Regarding the situation here where the baseball equipment was taken from the storage locker, the value exceeds $950.00 and therefore, even if the intent to steal were not there, and thus no burglary charge, the charge would be grand theft, based on the value of the items taken.

The penalties and punishments for a conviction of burglary can be harsh. The following is an example of guideline penalties:

A Conviction for First Degree Burglary, a felony, exposes you to two, four or six years in a state prison and a $10,000.00 fine;
A conviction for Second Degree Burglary as a felony exposes you to sixteen months or two or three years in state prison and a $10,000.00 fine.

A conviction of Second Degree Burglary as a misdemeanor exposes you to up to one year in jail and a $1,000.00 fine.

Burglary cases can be difficult and complicated for the prosecution to prove due to legal technicalities. For this reason, they often agree to settle cases for lesser charges. So, even though you may have been arrested and prosecuted for felony burglary, an experienced criminal defense attorney will often be successful in getting the charge reduced to misdemeanor burglary or dismissed all together.

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A young 24-year-old man was recently arrested for the murder of his girlfriend. The Laguna Hills resident is being accused of stabbing his girlfriend to death. According to authorities, he was taken into custody in Arizona and is now being questioned, pending extradition back to Orange County California. As an experienced criminal defense attorney, practicing law in Orange County for 20 years, my first advise to this young man would be to hire an attorney before talking to anyone. The authorities have a way of both intimidating people into saying things they don’t mean as well as offering a false sense of compassion, in order to elicit a confession.

When someone is being accused of something as serious as murder, especially someone this young with relatively little life experience, the fear and stress is overwhelming and can cause a person to respond in ways they normally would not. People, especially young people, when being questioned by the authorities, want to be believed and if they are not will often change their story or add more or less detail in order to make the questioning stop. Also, being questioned by the authorities for such a serious crime can be so intimidating that the person makes mistakes, and misstates what they mean.

The details of this case are not yet known and exactly what happened is yet to be seen. But, if this young man was in some way involved in this young woman’s death, looking to why this happened and under what circumstances is crucial to his defense. When the crime of murder is committed involving people, who know each other, often there is escalating emotional circumstances that end tragically.

In order to be convicted of murder, the following elements must be met:

1. That you committed an act that resulted in the death of another person;
2. That it was committed with malice aforethought; and
3. It was without lawful excuse or justification.

There are different degrees of murder but California law defines murder as: “The unlawful killing of a human being or fetus with malice aforethought.” Let’s take a look at some of the more common charges of murder:

1. First Degree Murder – In order to be convicted of first degree murder, the prosecution must prove that: a) you committed the murder; b) the murder was committed in a way that was willful, deliberate and premeditated; or c) the murder was committed by way of the “felony-murder rule”.

2. Second Degree Murder – Like first-degree murder, it had to have been willful but not deliberate and premeditated.

3. Manslaughter, Voluntary vs. Involuntary – Involuntary manslaughter involves an unintentional death. An unlawful killing that takes place during the commission of an unlawful act or, during the commission of a lawful act which involves high risk of death or great bodily injury, that it committed without due caution. Voluntary manslaughter applies to killings that are committed during a sudden quarrel or in the heat of passion.

These are just a few examples of the different degrees of murder. If convicted, the sentence will depend upon what he pleads to or what charge he is ultimately convicted of. The following are some examples of the sentence, if convicted, this young man may be facing:

1. A conviction of first-degree murder carries a potential sentence of 25 years to life;
2. A conviction of second degree murder carries a potential sentence of 15 years to life; and
3. Manslaughter: A conviction of voluntary manslaughter is three, six or eleven years in state prison. A conviction of involuntary manslaughter is: formal probation and up to 1 year in county jail or two, three or four years in state prison.

As you can see, the difference of being convicted of murder vs. any of the other possibilities is quite significant. For this reason, hiring an experienced criminal defense attorney is the most important thing a person can do when facing the charge of murder.

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A Laguna Niguel man was arrested and charged with Gross Negligent Discharge of a Firearm after he shot a TV in his apartment. According to The Orange County Sheriff’s Department, the 67 year old man was arrested after his wife reported that he shot the TV because he did not want her watching it. He was also charged with Felony Vandalism.

Penal Code Section 246.3, Gross Negligent Discharge of Firearm, is defined as the willful firing of a gun in a grossly negligent manner that could result in death or injury to a person. To be convicted of PC 246.3, the prosecution must prove all three of the following elements:

1. That you willfully fired a gun or BB device;
2. That it was done in a grossly negligent manner; and
3. That the discharge of the gun could have resulted in injury or death to a person.

Grossly negligent manner is defined as, acting in a reckless way that: 1) creates a high risk of death or great bodily injury; 2) demonstrates a disregard for human life or an indifference to the consequences; and 3) is such that a reasonable person would have recognized the nature of the risk.

PC 246.3 can be filed as either a misdemeanor or a felony and can subject you to serious consequences, including possible prison time. However, a good criminal defense attorney will be familiar with the variety of legal defenses associated with this crime. Below are some of the more common legal defenses to PC 246.3:

1. Self-defense/defense of another;
2. You were not aware that the gun was loaded; and
3. There was no risk of injury or death;
As noted above, PC 246.3 can be filed as either a misdemeanor or a felony depending upon the circumstances of the incident and your criminal history. If you are convicted of gross negligent discharge of a firearm, the following are possible penalties and punishments you could be facing:

Misdemeanor Conviction of PC 246.3: Up to one year in County Jail and a maximum $1,000.00 fine;
Felony Conviction of PC 246.3: 16 months or, two or three years in State Prison and a maximum $1,000.00 fine.

In addition to the above penalties, if convicted, you lose your right to own or acquire any firearms. A felony conviction prohibits you from owning a firearm for life and a misdemeanor prohibits ownership for 10 years.

It is important to note that in California, a felony conviction of Gross Negligent Discharge of a Firearm is a Strike under the Three Strikes Law. if convicted, and you are later convicted of another felony and then a third, you face a mandatory minimum sentence of 25 years to life in state prison.

Anyone who is facing charges of PC 246.3 should immediately seek the advice and representation of an experienced criminal defense attorney who will pursue all defenses to reduce the chances of a felony conviction to avoid a strike on their record.

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A Santa Ana City Councilman, who was also once an Orange County, executive, has been charged with sexual battery, along with several other felony counts dealing with sexual misconduct. He has been charged with 12 felony counts and 3 misdemeanor counts in the Orange County Superior Court.

California Penal Code Section 243.4 defines sexual battery as the non-consensual touching of the intimate part of another for sexual arousal, sexual gratification or sexual abuse. It can be charged as either a misdemeanor or a felony, depending upon the circumstances.

In this case, the Orange County District Attorney has filed the sexual battery charges as felonies. The difference between a misdemeanor and a felony filing lies with the way in which the victim(s) were touched against their will. As an example, in this particular case it is alleged that the defendant restrained his victims from leaving the room or the area in which the battery occurred. This elevates the charge to a felony.

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Orange County beaches are popular destinations for thousands over the Fourth of July holiday. The Newport Beach Police Department will have hundreds of uniform police officers keeping an eye on the celebrations, making sure the laws are followed. It is anticipated that approximately 200 officers from the Newport Beach Police Department, as well as other agencies will patrol the beaches, making arrests and writing citations. The agency has also requested additional support from other agencies including the California Highway Patrol, Orange County Sheriff’s Department, Irvine, Santa Ana and Anaheim Police Departments.

Those breaking the law in the busiest areas of Newport Beach – West Balboa Boulevard between Pacific Coast Highway and 32nd Street, as well as Seashore Drive and streets between West Balboa and Seashore – can also expect to receive fines triple the regular amount. Officers will also be enforcing the city’s new law concerning loud or unruly gatherings. The law was approved last year and can result in a fine of up to $3,000 for the owners of property where boisterous parties occur.

For the Laguna Beach Police Department, Fourth of July is the busiest time of year. The department will be at full staffing, bringing in additional dispatchers, beach patrol officers and traffic cadets. Last year, 30 people were arrested and 118 tickets were issued between July 3 and July 5. Officers responded to almost 300 calls for service on July 4th.

San Clemente is expecting nearly 40,000 people to visit their beach and will also have additional “manpower” to assist with the heightened activity. They plan to have deputies on all-terrain vehicles patrolling the beaches. The biggest problems are loud parties, disturbances and illegal fireworks. Many of the calls are alcohol-related.

In Dana Point, the Orange County Sheriff’s Department plans to deploy eight mounted units, as well as dispatching all-terrain vehicles at Salt Creek Beach.

Most arrests during celebrations such as Fourth of July involve alcohol related offenses such as drunk in public and driving under the influence. Being arrested, charged and convicted for a misdemeanor such as drunk in public or DUI, can have lasting effects on a person’s life and for that reason, it is important for anyone facing a DUI conviction, or any alcohol related conviction, to have experienced legal representation. A good Orange County Criminal Defense Attorney, who has expertise in Orange County DUI arrests, will make every effort to have the charges reduced and/or dismissed. A key factor in choosing an attorney is to look for an attorney who is familiar with the Court in which the case is pending, as well as the other Courts in Orange County. A good relationship with the Judges, District Attorneys, Court Clerks and other personnel can influence a positive outcome and ensure that you get the best possible result.

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