Tuesday, October 25, 2016

Is it Child Abuse to Spank My Kids in California?

Section 273a of the California Penal Code prohibits child abuse.  Violating PC 273a can be treated as a misdemeanor or a felony, depending on the circumstances.  That code section partially defines "child abuse" as "causing or permitting a child to suffer unjustifiable pain and suffering". The operative word there is "unjustifiable".

Of course, there are situations where you may be entirely justified in causing your child to suffer some pain and suffering.  That's essentially what spanking is -- inflicting a reasonable amount of pain as a form of discipline.

In order to be considered lawful in California, spanking must be done under reasonable circumstances and without using excessive force. I understand that this is a completely subjective standard. What might be "reasonable" in your home might shock a young prosecutor in the DA's office. To determine whether or not a particular case warrants the filing of criminal charges, the DA will consider how and why the child was punished, the child's age, the degree of force that was used, whether or not the punishment caused any injuries, and other relevant considerations. Ultimately, a jury will decide whether or not the spanking was "reasonable" and lawful.

The California Attorney General and case law have affirmed parents' right to spank their children using an object other than their hand (a belt, a wooden spoon, etc.), as long as the punishment is necessary and not excessive under the circumstances.

Regardless of your personal philosophy of parenting and opinions on spanking, be advised that corporal punishment is legal in California as long as it is done by reasonable force and under reasonable circumstances.

If you or a loved one has questions about child abuse or spanking in California, call our office for a free attorney consultation.  (714) 449-3335.  Ask for John.

Thanks for reading.

Orange County Child Abuse Lawyer

Thursday, October 13, 2016

What Counts as "Harassment" in a Restraining Order Case?

The law is full of strange words, like "estoppel", "pretermission" and "res judicata". It's also full of familiar words that carry special, legal definitions which differ from those words' ordinary, everyday usage. One of these common words that carries a special, legal definition -- and one that seems to cause a lot of confusion -- is "harassment".

In normal English conversation, "harassment" may describe behavior that annoys or bothers someone. In restraining order court, though, it carries a much more narrow and specific definition. If you're involved in any type of restraining order proceeding, it's crucially important that you understand how courts define "harassment".

As I've previously discussed on this blog, restraining orders may be granted when the petitioner can prove that he or she has been harassed by the respondent, or that the respondent has committed actual violence or credible threats of violence. Violence and threats are pretty self-defining, so they don't require a lot of explanation here.

As I've also discussed, courts are not in the business of getting involved in every situation where one person is annoyed by another person's behavior. Being the subject of a restraining order may have severe consequences for the person whose behavior is restrained. He or she will be stripped of their right to own or possess firearms. The restraining order will become a public record which may affect the restrained party's employment. It could result in the loss of some professional licenses. Courts don't take these consequences lightly. They will not strip people of their rights just because their behavior annoys or bothers someone else.

To prove "harassment" in a restraining order hearing, the petitioner must establish several elements:
  • That the respondent has engaged in a "course of conduct". Harassment involves a pattern of behavior that takes place over time, not just on a single occasion. That course of conduct must demonstrate a "continuity of purpose".
  • The course of conduct was directed at the petitioner. It is not sufficient to simply prove that the respondent is an asshole in general, has been an asshole to other people on other occasions, or that something he does annoys you. For example, the court will not grant a restraining order just because your neighbor smokes a cigar inside his apartment, the cigar smoke comes through the vents into your apartment, and your neighbor is aggressive towards other people in the complex. The court does not care if you're especially sensitive to cigar smoke or if other people are afraid of your neighbor. Those behaviors might annoy you, cause you distress and interfere with your right to peacefully enjoy the privacy of your own residence, but they're not intentionally "directed at you", so they're not the basis for a restraining order. 
  • The course of conduct serves no lawful purpose except to annoy you or to cause you distress. If your neighbor constantly complains to Code Enforcement over every ticky-tacky parking violation, your neighbor is a whiny asshole. Unfortunately, you cannot get a restraining order against someone for being a whiner. The court will not order someone to stop whining if they have some lawful basis for doing so, no matter how much their behavior annoys you.  
  • The behavior would cause a reasonable person to suffer substantial emotional distress. It's not sufficient to prove that the behavior caused you to suffer emotional distress. The court does not care if you're especially sensitive, fragile, or unreasonable -- those are not compelling reasons to strip someone else of their rights. If you want a restraining order, you must prove that the respondent's behavior was so outrageous that a normal, healthy individual would have been seriously distressed by it. I've been involved in plenty of cases where the petitioner comes to court with stacks of records from their therapist to demonstrate how the respondent's mildly-annoying behavior has exacerbated his or her preexisting health condition (anxiety, insomnia, depression, high blood pressure, etc.). It sounds cold, but the court isn't concerned with any of those things if the respondent's behavior would not have similar effects on an otherwise healthy person. 
  • Also keep in mind that "substantial emotional distress" is more that mere annoyance. I've had plenty of roommates, neighbors, coworkers and classmates whose behavior has annoyed me. We all have. Most of those annoyances, though, are not sufficient grounds for the issuance of a restraining order. At the risk of repeating myself, courts are not in the business of getting involved with every dispute that arises between individuals. They cannot and will not order someone to be polite. If rudeness were a legal cause of action, we'd need a bigger courthouse.  
Harassment can be much more complicated and difficult to establish than many litigants imagine. Even if you have been the victim of harassment, proving it in court with reliable, admissible evidence is another story. 

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

Wednesday, October 5, 2016

Lobster Season = DFG Enforcement Season

California's recreational spiny lobster season officially began on October 1 this year.

Traditionally, the majority of legal lobsters are caught during the first few weeks of the season. The water is still warm enough to free dive for bugs, the days are still long and the weather is still pleasant enough to draw anglers.

This is the time of year when I start getting calls from divers and fishermen who've run afoul of California's complicated fishing laws.  If you're going to hit the water in search of those delicious bugs this season, keep a few rules in mind.  By learning and practicing these basic commandments, you might save yourself from a costly citation, a day in court, and a criminal record  A violation of any fishing regulation may be treated as a misdemeanor. The maximum penalty for most of these violations includes 6 months in jail, high fines, probation, loss of fishing privileges and and forfeiture of your gear. Prosecutors take these cases seriously. You should, too.

-Carry a valid California sport fishing license with salt water endorsement AND a spiny lobster report card.  These documents must be in your immediate possession while you are fishing or taking lobster.  If you are diving from a boat, you may leave the licenses on the boat.  If you are diving from shore, you must leave the licenses within 500 yard from your point of entry.

-Fill out your lobster report card BEFORE you begin fishing.  If you are approached by wardens from the California Dept of Fish & Wildlife (formerly, Fish & Game), they will inspect your report card.  If the date and location has not already been filled in, you will be cited.

-Use an approved lobster gauge and measure carefully.  A legal lobster must measure at least 3.25" from the eye socket to the rear of the carapace, along a line parallel to the center of the body shell. A proper lobster gauge should be made of a rigid material, like metal or hard plastic, and not a soft tape measure. A soft tape measure will follow the curvature of the lobster's shell and may cause undersized lobsters to falsely appear legal. Don't fudge it. Fish & Wildlife wardens will not be fooled, they will not give you "the benefit of the doubt", they will not issue warnings, and they will not do you any favors. When in doubt, throw it out.

Here's a photo that demonstrates the proper technique for measuring a spiny lobster.  This bug is clearly undersized:

Photo credit: cdfwnews.wordpress.com

-Lobsters may be taken by hand or by hoop net only.  No traps allowed except with a commercial license.  If you snag one while bottom fishing, you must toss it back.

-Lobsters must be whole / "in measurable condition" when they are brought ashore. If you remove the tails at sea, Fish & Wildlife wardens on the docks cannot verify that the bugs are the legal length. You will be cited if you come ashore with a cooler full of lobster tails, or if wardens board your boat at sea and discover immeasurable lobsters.

-Check an up-to-date map to ensure that you're not fishing in a protected area. The ocean off Southern California is home to 50 different "Marine Protected Areas", including "Marine Reserves", "Marine Conservation Areas" and "Special Closures".  Each of these areas is governed by specific rules and regulations regarding what (if anything) may be taken or pursued within its designated boundaries. The areas are not marked by signs, so anglers are responsible for studying their maps.

If you or a loved one is cited for any fishing violation in Southern California, call the office with the experience and knowledge to ensure that you get the best result possible.  Free consultations. (714) 449-3335. 

Thanks for reading.

Catalina Attorney 

Tuesday, October 4, 2016

We're Moving!

After 7 years at our Santa Ana location, we're moving to Fullerton at the end of this week.  The new office will be located on the 9th floor of the Fullerton Towers, at 1440 N. Harbor Blvd. (Harbor & Brea Blvd., a block from the Fullerton courthouse).

We previously had a space in the Fullerton Towers that we used on an hourly basis to meet with clients. Now, it will be our full-time home. As a local Fullerton boy, I'm excited about this new opportunity to better serve clients in my home town.  I love appearing at the North Orange County Justice Center, and this new location will make my Fullerton appearances even more convenient.

I'll still be mobile and I'm always happy to meet my clients wherever they're comfortable. If transportation is a problem, I'll come to your house or I'll meet you at a Starbucks near your workplace if downtown Fullerton is inconvenient for you.

The location of our office is changing, but our practice is not. We will continue to deliver outstanding legal representation for our clients in criminal matters, DUI, restraining order cases and supporting the medical marijuana industry.

If you or a loved one has questions regarding a criminal case, a restraining order, or medical marijuana, call us at our new number for a free attorney consultation.  (714) 449-3335.

Thanks for reading.

Fullerton Attorney

Thursday, September 29, 2016

Buccaneer Days Returns to Catalina. Save My Number!

It's that time again!  Buccaneer Days, an alcohol-fueled weekend of "grub & grog" returns to Catalina Island September 29 - October 2.

This year's lineup includes 4 days of live bands, DJs, costume contests, food, booze and general good times. The fish are still biting in the waters around Catalina and spiny lobster season officially begins October 3.

There should be plenty of great opportunities to get yourself into trouble.  If you're planning to attend Buccaneer Days in Catalina this year, please be safe, be smart, and save my number now. (714) 449-3335.

Our firm handles more criminal defense cases on Catalina than any other private attorneys in California. We have experience defending against all the most commonly-charged crimes that arise in and around Catalina, including fishing violations, drunk in public, DUI (even in a golf cart) and assault / battery. If you're arrested or cited on the island, call us for a free attorney consultation. Ask for John.

Thanks for reading and have fun this weekend.

Catalina Lawyer

Wednesday, September 28, 2016

What We're Working on Now

It's been a busy summer at our office and I know I've been neglecting this blog for the past month. We've handled some really interesting cases and we're continuing to help our clients achieve some fantastic results. Here's a sample of what we're working on now:

-Domestic violence trial in Orange County:  I'm scheduled to start a trial in Newport Beach this week. We were set to begin on 9/26, but it's been postponed a couple times already.  It looks like we should be ready to start selecting jurors tomorrow.  I can't disclose too many details right now, but I can attest that the accusations against my client are nonsense.  Stay tuned for updates as they become available.

-Under the influence of a controlled substance in Riverside (Indio, Coachella Festival):  I LOVE defending cases that arise at the big music festivals in Southern California.  Police arrest so many people so quickly that glaring mistakes are inevitable.  They do a terrible job of collecting evidence, writing detailed reports, filing cases in a timely manner, and preparing to appear in court.  If you're arrested at Coachella, the HARD festival, or any other major EDM event in the area, you should definitely consider speaking with a qualified, local attorney before you make any decisions.

We recently represented a young man who had been picked up at Coachella five years ago.  At the time, police believed that he was under the influence of drugs, but they took him to a mental health hospital rather than jail.  He was informed that he was not under arrest and that he was only being held for observation to ensure his own safety.  His parents were advised that no court appearances would be necessary.  Six months later, the DA filed criminal charges against my client, but they never made any effort to notify him that a court date had been scheduled.  Now (five years later), he applied for a job and he learned that he had an outstanding arrest warrant.

We filed a motion to dismiss the case due to a violation of my client's constitutional right to a speedy trial. When there has been a long delay between the filing of charges and the client's first court appearance, the burden falls on the DA to explain or justify the delay.  We argued that the delay in this case was unreasonable and the judge agreed.  Case dismissed.

-Child Abuse in Los Angeles (West Covina):  My client had used (what I consider to be) reasonable force to discipline an especially-obstinate child.  The child was not injured, the evidence was weak, and the force she used against the child was not clearly "abusive" or "excessive".

My client chose to voluntarily begin parenting / anger management counseling before the case ever ended up in court.  The DA agreed to dismiss the case if my client continues to participate in the counseling that she was already attending.  I call that a "win".

-Restraining Orders:  We're continuing to achieve fantastic results with restraining order hearings. This summer, I've handled restraining order cases from San Diego to Chatsworth, and from Long Beach to San Bernardino.  My cases have involved accusations by parents against their children, children against their parents, neighbors against each other, and businesses against their employees.  These cases are all unique, and I think they're a lot of fun to handle.

I'm also defending a couple cases right now where my clients are accused of violating existing restraining orders.

If you or a loved one has a criminal matter or a restraining order case in Southern California, call our office for a free attorney consultation.  (714) 449-3335.  Ask for John.

Thanks for reading.

Fullerton Criminal Defense Attorney

Friday, August 12, 2016

How to Collect a Restitution Award in California

If you've been the victim of a crime in California and the defendant has been convicted in criminal court, the judge may have ordered the defendant to pay restitution to compensate you for your economic losses arising from the crime.

The amount of restitution is determined at the time of sentencing or shortly thereafter.  A restitution award may cover your medical expenses resulting from a crime, mental health counseling, the value of stolen or damaged property and lost wages, plus interest. A restitution award may also include expenses incurred by the victim to relocate away from the defendant, to install or improve residential security and to retrofit a home or vehicle if the victim was disabled by the crime.

Restitution awards are criminal in nature, so they're treated a little differently than civil lawsuits. On one hand, they are cheaper and easier for victims to obtain because the District Attorney will handle most of the legwork in criminal court and they will not charge you any fee to do so. Unlike a civil lawsuit, however, restitution only covers economic losses, not "pain and suffering" or punitive damages. Obtaining a restitution award will not preclude the victim from additionally seeking compensation for non-economic losses in civil court.

Once you have a restitution order in hand, the hard part is often trying to collect your money. The order itself is only a piece of paper. Courts and prosecutors are not collections agents and they will not actively work to enforce an existing restitution order. To make matters worse, defendants often attempt to hide their assets to avoid paying you.

An aggressive attorney can help collect your money and put your back onto your feet.  Our firm can:

  • Order the defendant to personally appear and to answer questions about his assets under penalty of perjury. If the defendant fails to appear or lies about his assets, he can be arrested.  
  • Work with the courts and the sheriff to seize the defendant's assets and deliver them to you, or to liquidate them and to deliver the proceeds to you.  
  • Garnish a defendant's wages, intercept tax refunds and seize any cash bail that the defendant posted in his criminal case.  We can even seize money that a defendant earns while incarcerated. 
  • File a judgement lien against a defendant's assets which will give you priority over other unsecured creditors and will prevent the defendant from selling or disposing of those assets.
And here's the best part: often, our services cost you NOTHING. California law allows victims to recover compensation from defendants for the costs that they incur in trying to collect their restitution awards.  This includes reasonable attorneys' fees and expenses paid to private investigators.  

If you're having trouble collecting an existing restitution award, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.  Thanks for reading.

Orange County Restitution Lawyer