Thursday, April 19, 2018

What to Do if You've Been Served With a Restraining Order

If you've been served with a restraining order, you must immediately begin the process of preparing your defense. That process should start by consulting with a qualified, local attorney to discuss your options and to coordinate your strategy. A competent attorney will understand the types of arguments that are likely to be effective, and how to present admissible evidence to support your position.

If you possess firearms, you must surrender them to the local police or to a licensed gun dealer within 48 hours. You may not simply sell them to a friend or ask a family member to hold them for you. The police or the gun dealer will prepare some paperwork that you must file with the court. Before your hearing, the judge will confirm that any firearms registered in your name have been accounted for.

Most importantly, though, you must resist the impulse to make matters worse.  Do not contact the petitioner in any way. Do not ask someone else to contact the petitioner or to pass along a message on your behalf. Do not try to "fix" the situation yourself by apologizing or by attempting to "smooth things out". Remember, a temporary restraining order IS a restraining order. If you violate it, you will be arrested and prosecuted. Your violation will also be used against you at your hearing. If the judge finds that you have violated the temporary order, he or she will almost certainly grant a permanent restraining order against you, even if the petition itself was weak or deficient. As the court sees it, your violation demonstrates that you are impulsive, you don't respect the law, and you are probably dangerous.

Even if the petitioner attempts to contact you while the temporary restraining order is in effect, you may not respond. This seems unfair, and it is, but remember that the temporary restraining order prohibits you from contacting the petitioner, not vice versa. If a judge has ordered you not to contact the petitioner, the petitioner cannot simply grant you permission to disobey the judge.

If you have some valid reason why you NEED to contact the petitioner before your hearing (e.g. you need to pick up your medication from her house, etc.), or you want to negotiate an out-of-court settlement, that communication must be done through your attorney. Your lawyer is the ONLY person who may contact the petitioner or pass along messages to her on your behalf.

If you or a loved one has been served with a temporary restraining order in Southern California, call us for a free attorney consultation. 714 449 3335. Ask for John.

Thanks for reading.

Orange County Restraining Order Lawyer

Wednesday, April 18, 2018

How to Fight a Restraining Order When the Facts are BAD

I've previously written on this blog about the process of getting or fighting a restraining order in California. If you haven't already, take a moment to read some of the basics here. In these introductory articles, I explain the legal procedures and the issues you should be prepared to discuss at your hearing.

I've also previously written on this blog about a common situation -- fighting a restraining order when the petitioner is crazy. Defending yourself against a crazy person requires a special strategy, and that's not the focus of this article.

Today's post is specifically about fighting a restraining order when the facts against you are BAD. Maybe you've said or done things that you're not proud of, and maybe the petitioner has proof (emails, text messages, surveillance videos, reliable witnesses, etc.). Even if you've behaved badly, and even if we all agree on what happened, it's not necessarily a slam dunk that the petitioner will walk out of court with a restraining order in hand. There are several effective strategies for fighting restraining orders, even if the facts appear bad at first glance.

There are situations where it may be futile to deny your bad behavior. If the petitioner has reliable proof, you will harm your own case by disingenuously trying to deny the facts. You will look like a liar, you will lose your credibility, and you will lose your case. Of course, that's not to say that you should admit to things you haven't done, or that you should falsely confess to untrue allegations. I'm speaking specifically about situations where you behaved badly and the petitioner can prove it.

Bad facts must be justified, excused or explained. A justification is a defense where you essentially argue that you did the RIGHT thing under the circumstances. Your behavior might have been illegal or improper in other situations, but perfectly proper in that particular place and time. "Self defense" or "defense of others" are common justifications. In most situations, for example, it is improper to threaten someone with a weapon. If you threaten your neighbor with a bat to make him stop beating his wife, though, you've done a GOOD thing. If your neighbor then files a restraining order against you for threatening him with a bat, you should admit that you engaged in the conduct alleged (you DID threaten him with a bat), and you should explain to the judge why your actions were justified under the circumstances.

If you can't justify your actions, maybe you can excuse them. An excuse is a defense where you acknowledge that your behavior wasn't "good", but you argue that you don't deserve to accept the blame. If, for example, you were involuntarily drugged, you might not deserve to be punished for your behavior while you were under the influence.

If your behavior can't be justified or excused, maybe it can at least be explained. An explanation is a defense where you admit that you did the wrong thing, but you argue that your blame is mitigated or reduced under the circumstances. For example, maybe you were provoked with offensive insults and you responded with violence. We don't agree that your violent reaction was appropriate, but maybe we understand why you reacted the way you did. Your outburst was out-of-character and it won't happen again.

That last part is important -- it won't happen again. As I've previously explained on this blog, a restraining order is an "injunction". An injunction is a court order that is intended to prevent some future harm that has not yet happened, not to punish you for some past wrongdoing. This is tricky. The issue that the judge must decide at the restraining order hearing is: has the petitioner proven that the respondent has harassed him or her? Sometimes, and this is risky, we must acknowledge that the respondent has committed some act of violence, threats or harassment against the petitioner, but we establish that the harm is not likely to reoccur in the future. Since we're talking about an injunction and not a violation of the criminal law, the analysis doesn't stop with, "did this happen?". A restraining order is not appropriate unless the harm is likely to happen in the future. There is valid case law to support this defense, but the appropriate citations must be presented effectively by an experienced, competent lawyer. Don't try this at home.

If you or a loved one has questions about a restraining order in California, call us for a free attorney consultation. (714) 449-3335. Ask for John.

Thanks for reading.

Orange County Restraining Order Lawyer

Monday, April 9, 2018

What We're Working On Now

It's been a busy couple of months here in the office, and I realize that I haven't posted any updates about some of our recent success stories.  If you've been anxiously holding your breath, good news!  Here's a quick rundown of some of the great cases that we've been working on:

  • Driving Without a License / False Info to a Police Officer -- Rancho Cucamonga (San Bernardino County):  Our client had been stopped several years ago for driving without a valid license.  To make matters worse, he gave a false name to the officer.  A month later, police discovered that the name was incorrect and our client was accused of 2 separate misdemeanors. Our client failed to appear in court and he had 2 outstanding warrants for several years. Eventually, the warrants caught up to him and he was going to lose his job. This morning, I met with the DA and they agreed to dismiss both matters entirely. Our client can finally get back to work without being afraid that police would show up at any minute and take him into custody on some ticky tacky old warrants. Greats news for him and his family. 
  • Elder Abuse Restraining Order -- Santa Ana (Orange County):  Our client was an elderly man who had been the victim of harassment and financial abuse by his adult daughter. He was seeking a restraining order against her to keep her away from his home and bank accounts. We were able to negotiate an out-of-court stipulation to help both parties achieve what they wanted without going to a full hearing before a judge. As I've written on this blog in the past, stipulations can be a great way for parties to negotiate their disputes in restraining order matters without involving taxpayers and judges. Out-of-court negotiations often allow both parties to achieve 100% of their goals without the risk that a judge will impose some "solution" where neither party is satisfied. 
  • Attempted Rape --  Fullerton (Orange County):  Our client is a young alcoholic. He was extremely intoxicated and acting belligerently, including some aggressive behavior toward a female stranger. We all agreed that his behavior was inappropriate, but I did not believe that he intended or attempted to "rape" anyone. After a thorough investigation, the District Attorney agreed that my client was not guilty of attempted rape. He was potentially facing several years in prison, followed by lifetime sex offender registration. Instead, he received the appropriate resolution: mandatory alcohol counseling and NO sex offender registration.  
  • Trespassing / Theft -- Fullerton (Orange County):  Our client was a "porch pirate". She was actually captured on camera stealing packages from the victim's doorstep. Package theft is rampant in North Orange County, so police and prosecutors are often eager to make an example when offenders are caught red-handed. Luckily, our client was sympathetic and apologetic. She had no serious criminal history. Most importantly, she had a great defense attorney! In the end, she agreed to a "diversion deal" -- she took a 6-hour class one Saturday and the DA agreed to dismiss the case entirely.  
  • Child Abuse -- West Covina (Los Angeles County):  Our client was accused of abusing her boyfriend's child. My client insisted that she had merely used some reasonable methods of discipline to correct behavior in an obstinate child. The defendant was a tough disciplinarian, but I did not believe that the punishments she imposed on the child were excessive or unwarranted. After some further investigation, the DA agreed to dismiss the charges.
These are just a few of the cases where we've recently achieved some great results for our clients. Obviously, the facts of every case are different, so these success stories are not guarantees or predictions of future performance.  

I have a lot more interesting cases that I'll be free to discuss soon. Check back for updates as they become available.  

If you or a loved one is accused of a crime in Orange County, call us for a free attorney consultation. (714) 449-3335

Friday, April 6, 2018

Catalina Island Special Appearance Attorney

Our office handles more criminal cases on Catalina Island than any other private firm.  If you're scheduled to appear in the Avalon courthouse, save yourself the time and hassle of the trip and allow us to make a special appearance.

Our appearance fee is usually less than the cost of the trip, especially if you factor in the value of your time.  An appearance on Catalina Island takes most of the day.  The Catalina Express leaves from Long Beach at 6:00 AM.  If your case goes smoothly and you can catch the 11:45 boat back, you'll arrive back on the mainland around 1:00 PM.  If the court staff is delayed by inclement weather, cases are often heard in the afternoon, or not at all.  There is nothing quick or simple about a "quick and simple appearance" on the island.

We have extensive experience in defending against the most common charges that arise on Catalina, including fishing violations (undersized lobster, fishing in a protected area, commercial fishing without the necessary permits and endorsements, etc.) and other misdemeanors (drunk in public, golf cart DUI, possession of drugs and domestic violence).

If you need an appearance covered on Catalina Island, or if you have questions about what to expect, call us for a free consultation.  (714) 449 3335.  Ask for John.

Thanks for reading.

Catalina Island Lawyer

Monday, April 2, 2018

What is the Statute of Limitations for Sex Crimes in California?

The "statute of limitations" ("SoL") describes the time limit within which prosecutors must bring criminal charges. If the DA waits too long before filing a case, they may be "time barred" from doing so. Like everything else in the law, though, this is often more complicated than it sounds.

Before we get started, it's important to remember that the "statute of limitations" refers to the time within which the case must be filed. Often, prosecutors do file a case within the proscribed time period, but the defendant never appears in court for his arraignment. When this happens, a bench warrant is issued. The warrant may remain outstanding forever, or until the defendant is eventually arrested and brought to court. A warrant will never simply go away on its own. If an old warrant has been outstanding for several years, the defendant may have a valid argument that his constitutional right to a speedy trial has been violated, but this is different from a "statute of limitations" argument if the case was filed before the SoL expired.

The length of the statute of limitations depends on the maximum sentence for the specific underlying crime. For most misdemeanors, the SoL is one  year.  That means prosecutors have one year from the date that the crime was discovered (not necessarily the date that the crime was committed) to file charges. If the crime is a "wobbler" (one that can be filed as either a misdemeanor or a felony at the discretion of the DA), then a longer statute of limitations may apply, even if the case is only filed as a misdemeanor.

If the crime is a felony and the maximum penalty is less than 8 years in prison, the statute of limitations is usually 3 years. If the maximum sentence is more than 8 years in prison, then the SoL is usually 6 years. If the crime is potentially punishable by death or by life in prison, or if the crime involves embezzlement of public money, then there is no statute of limitations -- the DA can file charges at any time.

There are many, many exceptions and caveats to the rule that prosecutions must generally commence with within the 1-, 3- or 6-year statute of limitations. If, for example, a defendant is out of the state when the crime is committed, the SoL can be extended by up to 3 additional years.

Arguments about the statute of limitations get especially complicated in cases involving allegations of child molestation. Under section 803(f) of the California Penal Code, the SoL may be extended even longer under certain circumstances. The district attorney can file criminal charges at any time (for up to one year after a report is made) if ALL of the following criteria are met:

  • The crime involved child rape, oral copulation, penetration, or other "substantial sexual conduct" with a minor (the victim was under 18 at the time),
  • The crime had never been previously reported to police, AND
  • There is some independent evidence to support the allegations.  If the victim is over 21 at the time that the crime is reported, that "independent evidence" must be "clear and convincing".

The argument in these cases tends to revolve around the 3rd prong -- that the allegation be supported by "independent evidence" that is "clear and convincing". Appellate courts have dealt with these issues extensively, and the nuances are intricate.

As I warned in the opening paragraph, issues regarding the statute of limitations can get complicated. You may have a valid defense based on a filing delay, but the argument must be properly presented and supported by up-to-date citations or it will not be effective.

If you or a loved one is fighting an old case, call us for a free attorney consultation. 714 449 3335. Ask for John. I'd be happy to speak with you about your situation to see if I can help.

Thanks for reading.

Fullerton Criminal Defense Attorney

Wednesday, March 14, 2018

Can Hands Be Considered "Deadly Weapons" in California?

Is it true that Mike Tyson's hands are considered "deadly weapons"? If Chuck Norris karate chopped someone in a bar, would Mr. Norris be charged for "assault with a deadly weapon"? In California, the answer is "maybe".

Section 245 of California Penal Code defines aggravated assault, commonly referred to as "assault with a deadly weapon, or by force or means likely to induce a great bodily injury". To be guilty of violating PC 245, the DA must prove that the defendant willfully performed some act that would likely injure someone else.

If the defendant uses or attempts to use a weapon against a victim (he swings a baseball bat toward someone, or throws a rock at someone's head, etc.), a jury could convict him of violating PC 245 because those actions are likely to cause injuries, regardless of whether or not the defendant actually harms anyone. Those are both examples of "assault by force or means likely to result in a bodily injury", even when nobody actually gets hurt.

A defendant can also be guilty of violating PC 245 without actually using any weapon. Remember, using a weapon is NOT an element of this crime. A defendant can be convicted for PC 245 if he and a friend (or several friends) cooperate to jump someone. Even if none of the assailants use weapons, jumping someone in an unfair fight is likely to cause serious injuries to the target of that beating. Anyone who participates in the jumping is guilty of violating PC 245.

Similarly, the DA might file PC 245 charges in a case where a fair fight devolves into a beating. For example, imagine two men voluntarily choose to fight in a parking lot. The fight starts fairly and the two men are evenly matched, but one man slips, drops his hands, and gets knocked out. After he falls unconscious, the other man continues kicking and beating him on the ground. Obviously, beating and kicking an unconscious man is likely to cause serious injuries. Even though this confrontation began as a fair fight, and even though the victor never used a weapon, he could still be charged and convicted for violating PC 245.

Back to my example of Mike Tyson or Chuck Norris assaulting someone in a bar fight: if either world-renowned fighter took a swing at a drunken amateur, it is probably likely that the poor victim would suffer some serious injury. If a jury agreed, then Iron Mike and Master Norris could be convicted of PC 245, commonly known as "assault with a deadly weapon", simply for punching someone with a bare fist.

In the real world, though, cases aren't usually so cut-and-dry. There are many possible defenses to assault charges, including self-defense. If you or a loved one has been arrested for assault in California, call us for a free attorney consultation. 714 449 3335. Ask for John.

Thanks for reading.

Fullerton assault lawyer

Tuesday, March 13, 2018

The Truth About DUI Lawyers

So you or someone you love has been arrested on suspicion of DUI. One of your first decisions must be whether or not to hire a private attorney. Before you invest thousands of dollars on a stranger, I think it's important to have a good understanding what a DUI lawyer can (and can't) do for you.

If your expectations on your attorney are unrealistically high, you will be disappointed and angry. You might feel like your attorney made false promises and then ripped you off. If your expectations are too low, you WILL get ripped off by an unscrupulous dump truck law firm. The key, then, is to develop a good understanding of the role that DUI attorneys actually play in the process and how they can actually help.

Your attorney's job is to effectively communicate the facts of your case and to concisely explain how the law fits into those facts. If you're in custody, your lawyer can help negotiate an O.R. release or a bail reduction. If you have outstanding warrants, your lawyer may be able to have them recalled without surrendering you to custody. He can gather the facts and clearly explain your options, possible defense strategies and the risks associated with each of those strategies. Your lawyer should outline the process so that you understand what to expect at each hearing. Ultimately, he or she should guide you to the best conclusion possible under the circumstances, depending on your priorities. If your attorney has done the job effectively, you should feel that you were treated fairly and that you made reasonably informed decisions because you had the knowledge and the understanding to do so.  

DUI lawyers will save you a lot of time, money and stress. They will make your court appearances for you so that you don't have to miss work. They will work to reduce your penalties (ideally by earning a reduction or a dismissal of the charges entirely, if possible), and they will alleviate your stress by ensuring that you understand the process and your options.  

It's also important to remember, though, that DUI lawyers are not wizards. They cannot change the facts of your case. Despite what you might have seen on TV, they cannot simply go golfing with the judge or take the DA to lunch and "make your case go away". Most of the time, lawyers cannot bury the DA in paperwork or put a cop on the stand and make him admit that he's lying. Sometimes we do those things, but those cases are exceptional. 

If you or a loved one has questions about a DUI in Orange County, call our office for a free attorney consultation. 714 449 3335. Ask for John.

Thanks for reading.