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A recent Supreme Court decision resulted in a guilty verdict being reversed citing that the defendant’s Fourth Amendment rights had been violated. As an Orange County Criminal Defense Attorney, protecting the rights under the United States Constitution, is paramount in the defense of my clients. This case is a good example of a violation of a person’s Fourth Amendment right. In Boykins v. State, 307 GA. App. 404 (705 Se2d 186) (2010), A State Court convicted the defendant of possession of cocaine and sentenced him to four years in prison. Defendant appealed his conviction as well as the denial of his motion to suppress the evidence seized from his vehicle. The Appellate Court affirmed the State Court’s decision and the Supreme Court granted “certiorari” to determine whether or not the Court of Appeals erred in applying the case law in Arizona vs. Gant , 556 U.S. 332 (129 SC 1710, 173 LE2d 485) (2009), to the facts of this case.

In this case, Boykins v. The State, defendant was observed by a police officer pulling up in his vehicle to a woman who was walking in a high crime area. The police officer stated that when he turned his patrol car around, defendant quickly drove away. The officer followed defendant to an apartment complex and pulled up behind him. He asked defendant for identification. He stated that his identification was in his apartment but gave his name and date of birth. It was discovered that defendant had an outstanding probation arrest warrant and was taken out of the vehicle, handcuffed and placed in the custody of the second officer on the scene. The officer then searched defendant’s vehicle finding cocaine in the center console.

Prior to trial, defendant filed a motion to suppress the drug evidence on the ground that the search was not proper, citing case law from Arizona v. Gant. In Gant, the Court held that “police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” The State Court denied the motion and thus defendant was convicted. The Court of Appeals upheld the State Court’s decision determining that the search of the vehicle was permissible because the appellant was standing outside of the vehicle at the time of the search and unlike the defendant in Gant, had not been placed in the back of the patrol car.

The Supreme Court’s view of this was that, a fair reading of Gant cannot reasonably lead to the conclusion that the only manner in which to remove an arrestee from reaching distance of the interior of a vehicle is to place the arrestee in the back of a patrol car. Further, the State was unable to justify the search on the second ground in Gant, that being “when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” Gant, supra, 129 SC at 1719.

There are other exceptions to the warrant requirement however, in this case, the State failed to meet its burden of proving the search incident to arrest exception to the warrant requirement and thus the exception did not apply. The Judgment was reversed.

Possession of a controlled substance is a felony. The penalties if convicted are:

1. Probation and up to one year in county jail, or
2. A California State prison sentence of 16 months, or two or three years.

If you have been arrested for possession of a controlled substance in Orange County, California, it is extremely important to hire an aggressive Orange County drug defense attorney who is familiar with all of the Courts in Orange County. 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 better able to get your charges reduced and/or dismissed. An attorney familiar with the Courts in which a case is pending will result in the best possible outcome available.

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In the case of People vs. Sheehan, Barbara Sheehan was recently found not guilty in the shooting death of her husband, which happened two and a half years earlier in their home. The Battered Woman’s Defense was offered as the defense to the second degree murder charge, stemming from years of domestic abuse inflicted upon Sheehan by her husband. As an experienced Orange County Criminal Defense Attorney, it is important to understand the difference between self-defense, where a person is in imminent danger of a lethal assault and domestic violence where there is a history of physical abuse and threats. It is also important to be aware that this defense can apply to both males and females.

There are a small number of situations where self-defense can be argued as justification for using violence to protect ones self. A common requirement for this defense is that a lethal assault is “imminent” to justify a victim in killing another person and it’s relation to the “duty to retreat”. These two concepts limit a person’s right to use deadly force in self-defense. An example of “imminent” danger would be where an intruder enters your home with a weapon drawn. The option of calling the police and risking the police not arriving in time would place the homeowner in grave danger. Therefore, the homeowner may use lethal force in order to defend himself and any other innocent people sharing the home. On the other hand, the “duty to retreat” might apply in a situation outside of the home where a person could avoid getting hurt or killed by leaving the scene.

Domestic violence differs in important ways from the self-defense explanations described above. Domestic violence often involves a victim who lives in the same home as her attacker and thus the attacker is not an intruder and also, domestic violence is usually an ongoing situation, not a one-time situation that someone can get away from. Thus, women who kill their batterers to defend their own lives do not act in ways that follow the typical self-defense rule.

In People vs. Sheehan, Mrs. Sheehan testified that she had endured years of domestic violence, including her husband throwing scalding pasta sauce at her and bashing her in the head with a telephone when she tried to call 9-1-1. She further testified that on one occasion, while on vacation in Jamaica, her husband slammed her head into the stone wall of the hotel repeatedly and she ended up in the hospital. Leading up to her husband’s death, Barbara Sheehan testified that she had told her husband that she would not be going on vacation to Florida with him. He became progressively more violent and menacing and ultimately pointed a gun at her and threatened to kill her. On the day that Barbara Sheehan killed her husband, he had pointed the gun at her and told her he was going to kill her but didn’t pull the trigger. At that point, Barbara Sheehan went and got one of her husband’s guns and went to the bathroom where he was shaving, with his gun sitting next to him on the counter, and shot him.

On the issue of “imminence”, as it applies to this case, Mrs. Sheehan felt the need to act in advance of a direct threat to her life, rather than waiting for the threat to become imminent. However, does this violate her duty to retreat to safety? In reality, women who leave a violent relationship can actually trigger more violence and statistically, are more likely to be killed. The legal system is not well designed to protect an individual from an ongoing and escalating threat directed specifically at them.

The reason to require imminence in these types of situations is to ensure that violence against the assailant is necessary to protect your own life and “retreat” serves the same purpose. If you can safety retreat from an assailant, you should do so.

In the Barbara Sheehan is was made clear to the jury that there was no where she could retreat to where her husband wouldn’t find her and further that she knew and was sure that he would kill her, if she hadn’t killed him first. Thus the “Not Guilty” verdict.

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This November, the U.S. Supreme Court will hear argument in United States v. Jones, which looks at whether or not police who use GPS devices to track suspects, violates their Fourth Amendment right against unreasonable searches and seizures. As an Orange County California Criminal Defense Attorney, this case deals with one of the most important amendment rights, that being our right against unreasonable searches and seizures.

In United States v. Jones, police tracked a suspect’s movements over a period of time with a GPS device that they had attached to his vehicle. Jones’ position is that this violated his Fourth Amendment right against unreasonable searches and seizures and further that a search warrant based on probable cause should have been obtained first.

The Fourth Amendment requires police to refrain from invading only that privacy which exists before police come on the scene. Absent a search warrant or other justification for invading your privacy, police are required to honor your privacy.

A GPS device records every trip you make, keeping an ongoing tally of everywhere you go and everyone you see. This information includes much of what we consider personal and private. It exposes information about doctors we see, people we spend time with our activities we enjoy in our free time, some of which may be extremely personal. This inflicts a serious intrusion into what we consider our personal space and privacy as we go through our lives.

If the U.S. Supreme Court sides with the United States in the Jones case, it will mean that police will be able to use GPS devices to track any vehicle for any length of time, much like a fishing expedition. The Fourth Amendment was designed to maximize the degree to which innocent people enjoy freedom from governmental invasions of their privacy.

It is important to be aware that police officers are not responsible for or required to advise you of your rights to refuse an illegal search. They are not required to tell you whether or not they can make a permissible search, that you can withhold permission for them to enter your home, nor that they have a right to seize anything in plain view.

If a search warrant is obtained, it is presumed it was obtained lawfully. Under California search and seizure laws, the burden is on the defense to prove that the warrant was invalid or unlawfully executed. Some examples of invalid or unlawful execution of warrants include: proving that the judge was misled by the officer applying for the warrant; proving that the warrant lacked the specifics regarding the place to be searched or things to be seized; and proving that the judge signing the warrant acted with interest or bias.

An aggressive criminal defense attorney should file a motion to suppress any evidence that was obtained via an improper search and seizure. If the motion is granted, oftentimes, your case will be dismissed.

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A 58 year old Irvine woman has been charged with Vehicular Manslaughter with Gross Negligence in Orange County Superior Court, after an accident she was involved in resulted in the death of a 77 year old woman. According to police reports, the woman was driving with “gross negligence” running a red light, before crashing into the car being driver by the 77 year old woman.
Vehicular Manslaughter defined is basically the crime of causing the death of a human being due to illegal driving of an automobile, including gross negligence, drunk driving, reckless driving, or speeding. Whether a person is charged with misdemeanor vehicular manslaughter or felony vehicular manslaughter depends upon the circumstances of the case.

In California, there are four types of vehicular manslaughter. They are listed here, along with the penalties typically imposed:

PC 191.5: Vehicular manslaughter while intoxicated, with gross negligence. The penalty can be up to 1 year in county jail, or 4,6 or 10 years state prison. However, one or more priors of this, or certain other vehicular felonies can result in 15 years to life in state prison.
PC 192(c)(1): Vehicular manslaughter with gross negligence, without intoxication. The penalty is up to 1 year in county jail, or 2,4, or 6 years in state prison.

PC 192(c)(2): Vehicular manslaughter without gross negligence, without intoxication. The penalty is up to 1 year in county jail.

PC 192(c)(3): Vehicular manslaughter while intoxicated, without gross negligence. The penalty is up to 1 year in county jail, or 16 months, 2, or 4 years in state prison.

PC 192(c): Vehicular manslaughter is referred to as a “wobbler” meaning that it can be filed either as a misdemeanor or felony, depending upon the circumstances. Vehicular manslaughter acts, not involving drugs or alcohol, that may be punishable are: 1) Driving in an unlawful way; 2) Driving in a lawful but dangerous way, and 3) Knowingly causing an accident for financial gain. Here are some examples of these three acts: If a person kills another person while they speeding; texting or talking on a cell phone; hitting and killing a pedestrian in a crosswalk; and staging an accident that results in an unintentional death.

Because this is such a serious issue, it is important to contact an experienced criminal defense attorney to protect your rights. With proper, experienced legal representation, it may be possible to get the charges reduced, avoiding jail or prison, or dismissed all together.

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A La Habra man was arrested and charged with domestic violence battery, violating a restraining order, resisting and obstructing an officer and dissuading a witnesses from reporting a crime. According to reports, when officers responded to a 911 domestic violence call, the La Habra man refused to obey commands given by the officers, which resulted in the officers shooting him. The man was taken to the hospital with non-life threatening injuries, and later charged with the above misdemeanor charges.

It is illegal to use physical force or to threaten to harm anyone. However, if the harm or threat of harm is against a spouse, fiancé, cohabitant, dating partner, or the parent of your child, the allegations are looked at as much more serious.
The most common domestic violence crimes are: 1) Corporal Injury to a Spouse or Cohabitant. A person can be charged with this crime if they strike his/her significant other and cause a visible injury; 2) Domestic Battery. It is a misdemeanor to inflict force or violence on an intimate partner. This California Domestic Violence Law does not require a visible injury; 3) Child Abuse; 4) Child Endangerment; 5) Elder Abuse; and 6) Criminal Threats. Threatening to seriously harm someone can be filed as a misdemeanor or a felony. You must have intended to put the person in fear and actually did put the person in sustained fear for this to be a crime.
Unfortunately, innocent people get accused of domestic violence in California all the time and once the accusation is out there, it is extremely difficult to prevent the case from being filed. Even if the accusing party changes her/his mind and no longer wants to press charges, the investigating agency will almost always go ahead and submit the case to the District Attorney.
An accusation of domestic violence or domestic abuse, is usually made during a highly emotional situation between two people. The accuser sometimes makes false allegations out of anger, jealousy or, in child custody cases, accusations are made to try to make the other parent look bad. In other situations, it can appear to the police that there has been a domestic battery when in reality it may have been self-defense or an accident.
The penalty, punishment and sentencing for domestic violence convictions depend upon 1) The seriousness of the injuries, and 2) The defendant’s criminal record. However, most courts impose a minimum 30-day jail sentence, even if it is a first-time conviction and require the defendant to attend and complete a 52-week domestic battery class. Making the punishment even more severe is that a conviction of domestic violence goes on a person’s permanent criminal record. The conviction will show up anytime a routine background check is done. This can be a big problem when applying for employment or for state licensing.
For these reasons, if you have been accused of domestic violence, it is extremely important that you contact a criminal defense attorney, specializing in domestic violence crimes. If an attorney intervenes early, they can speak with the investigating agency and present your side before it is sent to the District Attorney’s Office. Sometimes, this can help the chances of the case not being filed. Also, if an attorney intervenes before the case is actually filed, they can speak with the District Attorney assigned to the case, present your side and other facts that the District Attorney may not have, and often times this can actually result in the District Attorney rejecting the case. Early intervention before a case gets filed is extremely important. However, if the case does get filed, a good domestic violence attorney will know what to do to try to get the charges dropped and the case dismissed, or in the alternative, to get the charges reduced to help preserve your record.
If you are charged with domestic violence in Orange County California, it is important to hire an attorney who is familiar with all of the courthouses in Orange County. A good Orange County Criminal Defense Attorney will have trusting relationships with the District Attorneys, Judges, Probation Department and Court Staff. This will help to ensure the best possible outcome for you.

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A 55-year-old La Habra woman has been arrested and charged with 103 Counts of “Embezzlement”. Specifically, the charges filed by the Orange County District Attorney are: (1) Acts Constituting Forgery, 470(d)PC; Making False Entries in Records or Returns, 471PC and Grand Theft, 487(a)PC. Included are the following Sentencing “Enhancements”: (1) Aggravated White Collar Crime Over 100K and (2) Taking Funds Exceeding $50K.

This woman is being accused of taking petty cash from her employer and writing checks to herself, over a period of five years, while she was employed as an Office Manager. The total amount she is accused of stealing is $284,000.00. If convicted, she faces up to 73 years in Prison.

Embezzlement, also known as employee theft and employee fraud, falls under Penal Code 503, which falls under the umbrella of Penal Code 484 theft. Embezzlement is the way in which the theft was committed. It is defined as unlawfully taking something from another that has been entrusted to you. The difference between embezzlement and other types of thefts is the “entrusting”. In Penal Code 484, embezzlement is defined as: “Every person who shall fraudulently appropriate property that has been entrusted to him/her is guilty of theft”.

Although embezzlement is a form of theft, there are specific rules that apply to California embezzlement law. To be found guilty of this offense, the prosecutor must first prove three facts: (1) that you had a relationship of trust with the victim; (2) that, pursuant to the relationship, you were entrusted with certain property, and (3) that you specifically intended to deprive the victim of that property by fraudulently taking it as your own.

The penalties, punishment and sentence for a conviction of embezzlement depends upon whether you are charged with PC 487, grand theft (value of more than $950.00) or PC 488, petty theft (value of $950.00 or less). PC 487 Grand Theft is a “wobbler” meaning that it can be filed as either a misdemeanor or a felony, depending upon the circumstances and your criminal history.

A conviction of misdemeanor grand theft exposes you to up to one year in county jail and a maximum fine of $1,000.00. A conviction of embezzlement as a felony exposes you to a sentence of 16 months, or two or three years in State prison and a maximum fine of $10,000.00. A conviction of petty theft embezzlement can mean a sentence of up to six months in jail and a maximum fine of up to $1,000.00.

In situations where the amount embezzled had a value of $50.00 or less, and you have no prior theft-related convictions, a good criminal defense attorney, with experience defending embezzlement cases, should explore the possibility of having your charge reduced to an infraction, and subjecting you to a maximum $250.00 fine.

A good embezzlement defense attorney will be familiar with the many legal defenses available and how to present them on your behalf. Some of the most common defenses an attorney might use are: (1) claim of right/good faith belief; (2) lack of criminal intent; (3) false accusations/innocence.

No matter how overwhelming the evidence may appear, your attorney should aggressively investigate the allegations, evaluate all of the evidence and search for inconsistencies and weaknesses in the prosecution’s case.

Anyone being accused of a crime in Orange County, California, should seek the advise of an attorney who is familiar with all the Courts in Orange County. 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 better able to get your charges reduced and/or dismissed. An attorney familiar with the Courts in which a case is pending will result in the best possible outcome available.

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Brandishing a weapon or firearm, Penal Code 417 PC, is just one of California gun laws. Drawing, exhibiting or using a firearm or deadly weapon in an angry or threatining manner, is prohibited. This is commonly referred to as “brandishing” a weapon. A conviction of this subjects you to a jail or prison sentence.

The following facts must be proved in order to be convicted of brandishing a weapon.

(1) That you drew or exhibited a deadly weapon or firearm in the presence of another person,

(2) That either you did so in a rude, angry, or threatening manner, or

(3) You did so unlawfully in a fight or quarrel, and that you were not acting in self-defense or in the defense of another person at the time.

A good criminal defense attorney will be familiar with the common defenses that should be preseted on your behalf. Some of them include:

(1) Self-Defense or defense of others

(2) You did not brandish the weapon in an angry and threatening manner;

(3) False allegations and/or wrongful arrest.

If you have been arrested and/or charged with brandishing a weapon or firearm, or any gun related charge, in Orange County, you should seek the advise of an attorney who is familiar with all the Courts in Orange County. 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 better able to get your charges reduced and/or dismissed. An attorney familiar with the Courts in which a case is pending will result in the best possible outcome available.

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A 20 year old Santa Ana man is facing a maximum of 3 years and six months in custody after being arrested and charged with 1 count of Felony attempted sexual battery, four misdemeanor counts of indecent exposure and three misdemeanor counts of child annoyance. If convicted, he must also register as a sex offender.

It is alleged that the man approached young, underage girls in his car, as they are walking to school and exposed himself. In one incident, it is alleged that he grabbed one young girls wrist, and attempted to pull her arm inside his vehicle through his open window. This young man is facing very serious charges that, if convicted, can have life-long effects. Hiring an Orange County Criminal Defense Attorney, familiar with the laws and defenses associated with these charges and familiar with the Court, Judges and DA’s involved in the case, will ensure the best possible outcome.

Penal Code 243.4 PC California’s sexual battery law makes it a crime to touch another person without that person’s consent with the specific intent to cause sexual arousal, sexual gratification or sexual abuse. Most instances of sexual battery, also known as sexual assault, are prosecuted as misdemeanors. However, if the alleged victim is unlawfully restrained, institutionalized or unaware of the true nature of the act, the offense may be prosecuted as a felony. A conviction of sexual battery, whether filed as a misdemeanor or felony, is punishable by fines, incarceration and registration as a sex offender.

California Penal Code 314 PC makes it illegal to “expose” yourself in public with the specific intent to draw attention to your genitals for the purpose of either (1) sexually arousing yourself or another person, or (2) sexually insulting or offending another person or other people. Although this is typically filed as a misdemeanor, aggravated offenses will be charged as felonies. A conviction of this type also requires registration as a sex offender.

Penal Code 290 PC – The Sex Offender Registration Act requires that people who are ordered by a judge to register as a sex offender do so for the rest of their lives as long as they live, work or attend school in California. When you “register” it means that you keep your local law enforcement agency informed as to your whereabouts. A wide variety of factors dictate how often you must update this information.

There are a variety of legal defenses to these types of charges that a good California criminal defense attorney can present on your behalf. If, however, the evidence is too overwhelming to dispute, exploring the possibility of having your named removed from Megan’s list and/or filing a certificate of rehabilitation or a Governor’s pardon to end your sex offender registration requirements, should be considered.

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A 20 year old Santa Ana man is facing a maximum of 3 years and six months in custody after being arrested and charged with 1 count of Felony attempted sexual battery, four misdemeanor counts of indecent exposure and three misdemeanor counts of child annoyance. If convicted, he must also register as a sex offender.

It is alleged that the man approached young, underage girls in his car, as they are walking to school and exposed himself. In one incident, it is alleged that he grabbed one young girls wrist, and attempted to pull her arm inside his vehicle through his open window. This young man is facing very serious charges that, if convicted, can have life-long effects. Hiring an Orange County Criminal Defense Attorney, familiar with the laws and defenses associated with these charges and familiar with the Court, Judges and DA’s involved in the case, will ensure the best possible outcome.

Penal Code 243.4 PC California’s sexual battery law makes it a crime to touch another person without that person’s consent with the specific intent to cause sexual arousal, sexual gratification or sexual abuse. Most instances of sexual battery, also known as sexual assault, are prosecuted as misdemeanors. However, if the alleged victim is unlawfully restrained, institutionalized or unaware of the true nature of the act, the offense may be prosecuted as a felony. A conviction of sexual battery, whether filed as a misdemeanor or felony, is punishable by fines, incarceration and registration as a sex offender.

California Penal Code 314 PC makes it illegal to “expose” yourself in public with the specific intent to draw attention to your genitals for the purpose of either (1) sexually arousing yourself or another person, or (2) sexually insulting or offending another person or other people. Although this is typically filed as a misdemeanor, aggravated offenses will be charged as felonies. A conviction of this type also requires registration as a sex offender.

Penal Code 290 PC – The Sex Offender Registration Act requires that people who are ordered by a judge to register as a sex offender do so for the rest of their lives as long as they live, work or attend school in California. When you “register” it means that you keep your local law enforcement agency informed as to your whereabouts. A wide variety of factors dictate how often you must update this information.

There are a variety of legal defenses to these types of charges that a good California criminal defense attorney can present on your behalf. If, however, the evidence is too overwhelming to dispute, exploring the possibility of having your named removed from Megan’s list and/or filing a certificate of rehabilitation or a Governor’s pardon to end your sex offender registration requirements, should be considered.

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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.

Once a juvenile is arrested for a crime, there are a few different ways law enforcement may proceed. Informal contact with parents, public or private diversion, citation and referral to probation, or 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 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. The question parents should ask themselves is what do I do to protect my child. 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 should be the goal of a good juvenile criminal defense attorney.

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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