California Criminal Defense Lawyer Blog

A bench warrant is a warrant for a person’s arrest issued by a judge (the “bench”). Most often these warrants are issued because a person failed to appear in court for an arraignment or other matter or because he or she violated a court order.

It is not uncommon for individuals to be unaware that a bench warrant has been issued. For example, a person who is arrested and released on promise to appear on arraignment, but who does not appear on the scheduled date will, in all probability, have a bench warrant issued for his or her arrest. That individual may not have appeared because he or she was not properly advised of the arraignment date, the arraignment date was changed but the arrestee was not informed, or the arrestee is unaware that charges were even filed subsequent to the arrest.

Example: Joan was arrested in Costa Mesa for misdemeanor trespassing. She was cited and released but was not advised of an arraignment date. Nine months after her arrest, the prosecutor filed a misdemeanor complaint against her. The prosecutor sent a letter to the address Joan provided upon her arrest advising her of the charges and arraignment date. But Joan had moved in the interim and the letter was never forwarded. She had no idea there were charges against her and she just presumed the case was dropped. When she didn’t show up in court, the judge issued a bench warrant for her arrest. Many months later, she was stopped on a speeding violation. The officer ran a records check and learned that she had a warrant for her arrest. She was shocked when she was arrested.

A criminal trial is all about the evidence. It is the backbone of the prosecution’s case. Evidence of a crime is most often circumstantial. It is unusual for the police and prosecutors to have direct evidence of the crime, especially in those cases that go to trial.

Direct evidence is evidence that is based on facts known to be true to the victim or police. For example, if the police or another witness personally observe the crime in progress or the victim personally knew the person who committed the crime against him or her, that would be direct evidence. If the witness testimony is credible, prosecutors can often secure a conviction based solely on direct evidence although more often there is some circumstantial evidence that supports the direct evidence. Sometimes though, even direct evidence doesn’t stand up. For example, say a defendant is accused of assault by another person. A good criminal defense attorney will do a due diligence investigation to make sure the accuser is telling the truth. Perhaps in that investigation, the attorney learns that the accuser held a grudge against the defendant and there is reasonable suspicion that the allegation of assault was fabricated in order to harm the defendant. Even direct evidence must be reliable and offer facts that prove beyond a reasonable doubt that the crime was committed.

Circumstantial evidence is indirect evidence but evidence that can be used to infer the commission of a crime. While not as reliable as direct evidence, circumstantial evidence is conferred the same weight as direct evidence in a court of law. However, because circumstantial evidence is usually weaker than direct evidence, a skilled criminal defense attorney may be able to poke holes in the evidence. For example, if Joe Schmo testifies that he saw someone run from the scene of a robbery who matched the defendant’s description, a good defense attorney will question the reliability of Mr. Schmo’s testimony. Perhaps it turns out that Mr. Schmo’s observation occurred in the dark of night in an area without streetlights. Or maybe Mr. Schmo has poor vision and was not wearing his glasses. Circumstantial evidence must be carefully scrutinized for reliability and reasonability.

It has been almost a year now since restaurants in California have been forced to close all or part of their dining facilities. For many small restauranteurs, the take-out business has kept them afloat…. but barely. Most Californians are sympathetic to the plight of the small restauranteur and many of us make a special effort to give our business to these small operators. But some have found a way to take advantage of the situation. I’m calling it the “Covid dine and dash.”

The Los Angeles Times recently featured several small restaurants that have been victims of a take-out scam. The scams are so pervasive that one well-known Korean restaurant has been forced out of business. The scams take various forms, but they all involve calling in a to-go order and charging the order over the phone on a credit card. Sometimes the credit card is fraudulent, but it appears that the more frequent scam is that someone will call in a large order and after it is picked up or delivered, the customer will call in to their credit card company to dispute the charge.

The customer will claim they never got the order, the order received was incomplete or incorrect, or claim someone other than the cardholder placed the order. The credit card companies will side with the consumer and place a hold on the charge. It is then up to the restauranteur to prove the charge was legit. This can be difficult for the restauranteur to prove. Restauranteurs who have been victimized over and over by some variation of this scam have now had to take extra measures such as photographing every order, requiring customers to pay in person and show their identification, and other safeguards.

You may not know that your vehicle records and stores a large assortment of time stamped data that can range from the opening and closing of the vehicle’s doors, the speed at which the vehicle was driving at any given date and time, voice commands stored in the onboard bluetooth or hands-free systems, and a lot more. Unless you are driving a clunker, chances are good your vehicle has this “black box” embedded inside.  Manufacturers started installing these vehicle blackboxes in the mid-1990 and the technology is now quite advanced.  If you have ever been in a newer model Tesla, you have seen the future of this technology. Everything that controls the Tesla is done through your smart phone, from opening doors, to starting up the car and the control panel that drives and navigates the car.  This technology has become so sophisticated that the police are able to solve crimes using the digital evidence stored in by our cars.

The technology has helped the police solve many crimes, including murder. For example, in Michigan, the police were able to solve a two-year old murder after the victim’s stolen vehicle was found. Time-stamped recordings of voice commands around the time the victim went missing were recovered from the 2016 Chevy truck. That led police to identify the voice, which was not the victim’s, and eventually led to the arrest of the murderer.

In another case here in California, a man was driving his Tesla when he ran straight into a car that was pulling out of a driveway. The driver who pulled out of the driveway died from the impact. The Tesla driver told the police he was driving 55 mph; the speed limit was 45 mph. While the other car may have been violating the vehicle code by pulling out under unsafe conditions, the Tesla driver was still on the hook because he was speeding. He was facing a possible misdemeanor manslaughter charge. But then the police got a search warrant to pull the data from the Tesla. They were able to establish that the Tesla driver wasn’t going 55 mph, but 78 mph!  Now the Tesla driver is facing a felony manslaughter charge, a very serious charge.

The California Legislature had a busy year in 2020 as it concerns criminal laws. Several significant changes in criminal law will go into effect at the beginning of 2021. I will discuss some of those changes in future blogs but for this post, I want to focus on AB-3234.

AB-3234 was signed into law and is codified in the Penal Code at section 1001.95. Effective January 1, 2021, it portends sweeping changes in the way misdemeanors are prosecuted in this state…or maybe a better way of stating it is “not prosecuted.” For all but a few misdemeanor crimes, this new law takes the prosecution of misdemeanors out of the prosecutor’s domain and allows the court to order a diversion, rather than prosecute the crime. For almost all misdemeanor crimes, the defendant can request the court order a diversion, which if granted, allows the defendant to avoid any prosecution at all. In fact, if the defendant successfully completes the terms and conditions of the diversion, the crime is as if it never happened because the arrest for the crime will be deemed to have never occurred.

The misdemeanor crimes that will not qualify for diversion are few. They are Penal Code section 290 crimes (crimes that require registration as a sex offender), sexual assault (Penal Code section 273.5), domestic violence (Penal Code section 243(e)), and stalking (Penal Code section 646.9). This is a rather odd list when you consider that other misdemeanors such as elder and child abuse, DUI, misdemeanor assault (other than domestic violence), just to name a few, are not on the list of excluded misdemeanors. (There is a push to amend the law to include DUI as one of the excluded offenses, but for now, it is eligible for diversion under the new law.)