Friday, February 5, 2016

What is Vehicular Manslaughter in California?

Vehicular manslaughter is the crime of causing someone's death while you are operating a motor vehicle.  That vehicle can be a car, a motorcycle, a boat, or even a golf cart. The big difference between manslaughter and murder is that murder charges require the prosecutor to prove that the defendant acted with "malice".  Think of malice as "bad intent" -- like intentionally trying to kill someone or acting so recklessly that death was likely or foreseeable. Manslaughter charges, on the other hand, do not require the prosecutor to prove that the defendant acted with malice.

If you are responsible for causing a traffic death in California, prosecutors may charge you with some form of "vehicular manslaughter", or even murder under some circumstances.  The major factors in determining how (or if) you'll be charged are:

-Whether or not you were intoxicated at the time that you caused the collision,
-Whether or not you have a prior DUI conviction,
-Whether or not you acted with "gross negligence",
-Whether or not you acted with "wanton and conscious disregard for life".

Accidents happen, and not every fatal accident warrants the filing of criminal charges.  If the DA wants to charge you with any form of vehicular manslaughter, they must prove that you did something illegal or dangerous, and that your illegal / dangerous act directly caused someone else's death.  The severity of the charges will depend on the nature of the illegal or dangerous act that you committed.

Vehicular Manslaughter, Not Intoxicated

If the underlying "illegal / dangerous act" is some minor traffic infraction (failure to signal, answering a text message, etc.) and that infraction causes someone's death, you could be charged under PC 192(c)(2), "vehicular manslaughter without gross negligence".

Vehicular manslaughter without gross negligence is a misdemeanor, punishable by a maximum of one year in jail.  You might not necessarily receive a whole year in jail (you might not receive any time in jail, depending on a lot of things), but it's on the table.

Gross Vehicular Manslaughter, Not Intoxicated

If the underlying "illegal / dangerous act" involves "gross negligence", though, prosecutors have the option of treating the case as a felony, with a maximum penalty of 6 years in prison.

Gross negligence is defined as "an extreme departure from what a reasonably careful person would do in the same situation".

Vehicular Manslaughter While Intoxicated

If the driver is intoxicated at the time that he or she causes a fatal collision, the case may be charged under PC 191.5.  Vehicular manslaughter while intoxicated carries a maximum penalty of 6 years.  To sustain a conviction, the DA must prove all the elements of a normal vehicular manslaughter charge (that the driver committed some illegal or dangerous act and that this act directly resulted in a death), and they must also prove that the defendant was impaired by drugs or alcohol at the time.

Gross Vehicular Manslaughter While Intoxicated 

As it's name implies, "Gross vehicular manslaughter while intoxicated" = vehicular manslaughter + intoxicated driver + gross negligence.  A conviction can carry up to 10 years in prison.

Wanton & Reckless, AKA "Watson Murder"

There is a controversial provision in California law (PC 188) that allows prosecutors to charge a driver with murder if the driver acts with "conscious disregard" for life and thereby causes someone's death.  The theory is that some behaviors are so dangerous that they carry an inherent risk of death.  If a defendant knows about these dangers, consciously disregards them, and thereby kills someone, the killing will be treated as if it were intentional and not an accident.

I always use the example of firing a gun into a crowd of people.  The shooter might claim that he did not intend to kill anyone, but the act of shooting into a crowd is so inherently dangerous that the shooter should have foreseen the risk that someone would die.  If someone does die as result of this reckless shooting, then the killing is obviously murder.  The same principles apply on the road.

Textbook examples of "wanton & reckless" murder involve illegal street racing accidents.  News flash: street racing is dangerous.  The danger is part of the appeal.  If you engage in illegal street racing and someone is killed, though, be prepared to face murder charges.

A more controversial example is what we call "Watson murder".  Here's how it works:  whenever anyone is convicted of DUI in California, the judge is required by law to warn him or her that driving under the influence of alcohol or drugs is inherently dangerous to human life.  The judge is also required to order the defendant to attend and complete a mandatory alcohol education program, where they will learn about the dangers of drunk driving.  If that person is ever involved in a fatal DUI collision later in the future, prosecutors will argue that the defendant had special knowledge and awareness regarding the dangers of drunk driving because he or she had been previously warned and had completed the mandatory alcohol classes.  Since the defendant personally knew that driving under the influence was dangerous and consciously disregarded that risk by continuing to drink and drive, any resulting harm will be treated as if it were intentional and not an accident.

A conviction for Watson murder can carry a sentence of 15 years to life in prison.

There are many possible defenses to vehicular manslaughter and Watson murder charges. Depending on the evidence, your attorney may argue that you were not directly responsible for causing the fatal accident, or that there is insufficient evidence to prove that you were intoxicated at the time of driving.  Only a qualified criminal defense attorney can determine the best strategy for your particular case.

If you or a loved one has questions about vehicular manslaughter or Watson murder in Orange County, Los Angeles, Riverside or San Bernardino, call our office for a free attorney consultation. (714) 505-2468.  Ask for John.

Thanks for reading.

Orange County Vehicular Manslaughter Lawyer

Tuesday, February 2, 2016

Changes Keep Coming for Medical Marijuana in California

Updated 2/4/16:  Governor Brown has signed AB-21 into law.  It takes effect immediately.

Change is the only constant when it comes to medical marijuana in California. I've previous written about the Medical Marijuana Safety and Regulation Act, which will completely upend the way we regulate medical weed here in the Golden State.  Those posts are available here and here.

It seems that our legislature loves to keep us on our toes, though.  Amendments to the proposed rules are coming faster than anyone can keep track.  Before we've had a chance to wrap our head around the latest package of new regulations, the State Assembly calls an audible and changes the play at the line of scrimmage.  "Omaha! Omaha!"

The latest game-changer is AB-21.  That bill has been approved by the Assembly and the State Senate.  Now it awaits the governor's signature.

Under the MMRSA as originally written, local cities and counties would be allowed to create their own land use regulations regarding cultivation and distribution of medical marijuana IF (and only if) they had comprehensive regulatory schemes in place before March 1, 2016. If the local municipality had no land use regulations for medical marijuana by that date, then the state would be responsible for determining how and where dispensaries could operate.

Many cities were eager to maintain local control over medical marijuana, so they scrambled to impose blanket bans on any marijuana-related activities.  Most observers (including myself) expected cities to reexamine their bans some time after March 1. We understood that they didn't intend to permanently prohibit medical marijuana, but they were forced to adopt sweeping bans as "book marks", to preserve local zoning authority.  This rush to ban marijuana-related activity was an unintended consequence of our great experiment to better regulate medical cannabis.

AB-21 is the legislature's latest attempt to save the MMRSA before it even takes effect.  If signed by Governor Brown, AB-21 will delete the March 1 deadline for cities to adopt land use rules for medical marijuana.  Municipalities will instead by allowed to adopt their own zoning rules at any time.  By deleting that deadline from the MMRSA, AB-21 will remove the urgency that cities had been facing to adopt harsh, "emergency" anti-pot laws.

In the time it's taken me to write this, the legislature has probably passed another set of confusing amendments to the Medical Marijuana Safety and Regulation Act. Stay tuned to see how this all plays out.

If you or a loved one has questions about starting a medical marijuana dispensary in Southern California, call us for a free attorney consultation.  (714) 505-2468. Ask for John. Thanks for reading.

Santa Ana Marijuana Lawyer

"Perverse Incentives" Encourage False Reports of Human Trafficking

New California laws may reward prostitutes who make false accusations against their pimps.  

News flash: the prostitution business is illegal in California.  It's also booming.  With the rise of the internet and social media, buyers and sellers are finding new ways to ply the world's oldest trade. Meanwhile, police and prosecutors are struggling to make a dent in the state's illicit sex industry. Their latest tactic has been to target pimps and panderers -- the "managers" and "recruiters" of the prostitution industry.  Here's how it works.

California voters overwhelmingly approved Prop. 35 in 2014.  That ballot initiative imposed lengthy prison sentences on anyone who uses force or fear to deprive a victim of her personal liberty for the purpose of coercing her into prostitution.  That makes sense, right?  If a criminal holds a girl in slavery and forces her to engage in prostitution against her will, I think we all agree that he deserves to be punished harshly.

Since Prop 35 took effect, local police and prosecutors have received huge grants that are specifically earmarked for targeting sex traffickers.  These grants give law enforcement a strong financial motivation to deliver results.  And that's where a set of "perverse incentives" begin to reveal themselves.

Some police are now conditioned to act under the presumption that all streetwalkers are essentially slaves who were coerced into involuntary prostitution.  When a prostitute is arrested, she has a simple choice: either, 1) tell the police what they want to hear (that she is a victim who was forced to perform prostitution against her will), testify against her pimp and receive immunity, or else 2) deny that she was coerced into the job, go straight to jail and face criminal charges. Tough call, right?  It's easy to see how the incentives align to encourage false reports of "human trafficking".

If you or a loved one is accused of pimping, pandering or human trafficking in Southern California, call us for a free attorney consultation.  (714) 505-2468.  Ask for John.

Thanks for reading.

Orange County Human Trafficking Lawyer

Wednesday, January 27, 2016

Police Took My Guns. How Can I Get Them Back?

The pen > the sword, but the Beretta M9 > the pen. 

Police often seize firearms during criminal investigations.  Today's post is about the specific process that must be followed in California before the police can return those guns to their lawful owner. 

Like all property that police seize, your guns will be held in an evidence locker at the police station for the duration of their investigation.  Once the investigation is completed, police will prepare reports to document their findings.  They will submit those reports to the DA for review and potential filing of criminal charges.  If the DA decides to charge someone with a crime, the guns could be used as evidence at trial.  If no charges are filed, then you might be eligible to apply for the return of your weapons.  

I say "you might be eligible", because there are a lot of different factors that come into play when we're discussing guns in California.  It's been said before, but it's worth repeating, that California has some of the most complicated, restrictive gun laws in the United States. It can be difficult to determine whether or not a particular person is eligible to possess weapons, whether or not a weapon has been illegally transferred or modified, and whether or not a weapon technically meets the definition of a "short-barreled rifle" or "assault weapon", etc.

To assist the police in determining whether or not someone is eligible to possess firearms, anyone who requests the return of his or her guns from the police must complete a "Law Enforcement Gun Release Application".  That application is available for download here. There is a $20 fee for processing the application, but the fee is waived if the lawful owner had previously reported the firearm as stolen.  

Where do I start if police are holding my lawfully-acquired guns?

To start the process, you must complete the LEGR application, available at the link above, and mail your application to the California Department of Justice. The DoJ will use the information that you provide to determine whether or not you are eligible to possess firearms under state and federal law. You will receive a "determination notice" by mail.

Your "determination notice" is only valid for 30 days, so you should immediately take your letter to the police agency that is holding your firearms.

Even after you receive a determination letter indicating that you are the lawful owner of the firearms and that you are legally permitted to possess them, police might still refuse to release the guns. This is because the police have no way of knowing whether or not the firearms are still needed as evidence in a pending criminal case. To prevent the potential loss of valuable evidence, many local law enforcement agencies have policies of never releasing property unless they are presented with a court order to do so.

I've completed the LEGR application and received my "determination notice", but police are still refusing to return my guns.  What now?

The next step may be to get the courts involved. You (or your attorney) can file a "motion for the return of property" in the appropriate court.  If you can demonstrate that you are the lawful owner of the property, and that the property is neither contraband nor evidence in a pending case, then a judge may order the police to return that property to you. This is the DA's opportunity to explain whether or not the weapons are needed as evidence, or if the government has any other interest in preventing the return of your firearms.

There are lots of technical requirements for serving your motion on the DA and scheduling a hearing with the court, and I won't waste too much time here with boring details. Those are things that your attorney should understand.  If your lawyer does not know how to file a routine motion in criminal court, have him or her call me and I will explain it.

Keep in mind that your "determination notice" is only valid for 30 days, so it's important to get working right away.  It can take weeks to schedule a hearing on the motion for return of property, so don't waste any time once you receive your letter from the Department of Justice.  It's probably advisable to get your attorney involved from the earliest stages so that all necessary paperwork can be completed within the appropriate time frame.

If you or a loved one has questions about how to recover your firearms after they've been seized by the police, call us for a free attorney consultation.  (714) 505-2468.  Ask for John.  Thanks for reading.

Santa Ana Gun Lawyer

Wednesday, January 20, 2016

What's the Difference Between Pimping, Pandering and Soliciting Prostitution in California?

Under California law, several separate and distinct crimes fall under the umbrella of "prostitution-related" offenses.  Here's a breakdown of the most commonly-charged prostitution-related crimes in California, along with their definitions, penalties, and my commentary.

Many local prosecutors around the state have adopted a strategy of "public shaming" as part of their campaigns against prostitution.  If you are convicted of any crime related to prostitution in Orange County, for instance, the District Attorney will publish your name, photo and details of the offense on their website.  They periodically send out this information to local newspapers in the form of press releases.  The Orange County Register and other local news outlets may republish those details, including your mugshot.

Pimping 

Under PC 266h, a person is guilty of "pimping" in California if he receives financial support from the proceeds of another person's prostitution, or if he receives payment for finding clients on behalf of a prostitute.  Think of a pimp as a prostitute's "agent / manager" (but maybe more "Don King" and less "Scott Boras").

If the prostitute is 16 or older, pimping is a felony punishable by 3-6 years in prison.  If the prostitute is under 16, then the maximum penalty goes up to 8 years.

Pandering

Pandering is defined under PC 266i as the crime of inducing, causing, persuading or encouraging another person to become a prostitute.  Think of pandering as "recruiting".

Just like pimping, pandering is a felony punishable by up to 6 years in prison if the prostitute is at least 16, or else 8 years if she is under 16.

Soliciting Prostitution

Soliciting prostitution is the crime of offering to engage in prostitution (as a buyer or a seller). A person is guilty of soliciting prostitution under PC 647(b) if he agrees to pay a prostitute (or an undercover cop) to perform a sex act, regardless of whether or not the sex act actually takes place.

A prostitute is also guilty of "soliciting" if she offers to perform a sex act for money.

Soliciting prostitution is a misdemeanor in California.  The maximum penalty is 180 days in jail, plus a $1,000 fine.

There is no mandatory minimum penalty for a first offense under PC 647(b).  For a second offense, though, the mandatory minimum is 45 days in jail.  If the defendant has 2 or more prior convictions, the court must impose a penalty of at least 90 days in jail.

If probation is granted, the court will order the defendant to take an HIV / AIDS test, receive some counseling regarding the dangers of HIV / AIDS, stay away from certain areas and intersections that are known for high prostitution-related activity, and to disclose the terms of their probation when asked by any peace officer.  Typically, the court will also impose some form of "custody", which may or may not be served in the county jail.  Non-violent first offenders might serve 10-30 days performing labor, community service, or serving time under house arrest.

If a motor vehicle is used in the commission of the offense and the offense occurs within 1,000 feet of a private residence, the court may suspend the defendant's driver's license for 30 days, or may order that the defendant's license be restricted to driving to and from work for a period of 6 months. That's right -- you can lose your driver's license if you are convicted of prostitution in California.

Loitering with Intent to Engage in Prostitution

Loitering in California is the crime of being in a public place with the intent to commit a crime, but without actually attempting the crime.  If you are observed cruising an area known for prostitution, circling the block, asking girls whether or not they're "working", etc., you might be arrested on suspicion of "loitering", even if you don't actually agree to engage in prostitution.

Human Trafficking 

This is the "buzz word" of the day.  Prosecutors facing reelection love to tout their achievements at combating "human trafficking", or "modern day slavery", as they call it.  They receive major grant money to fund anti-human trafficking task forces, and they're under pressure to deliver results, or else risk the loss of future funding.  As a result, the Orange County District Attorney and other local prosecutors treat cases of alleged human trafficking very aggressively.

Human trafficking is the crime of using force or fear to deprive someone of their personal liberty, for the purpose of pimping or pandering the victim.

Since California voters approved Prop 35 in 2014, the maximum penalty for human trafficking is life in prison, plus fines of up to $1.5 million and mandatory lifetime sex offender registration if the defendant is ever released from prison.

Prostitution-related cases are often complicated because some offenses require the DA to prove the defendant's "specific intent".  There are many possible defenses to these charges, including entrapment or other police misconduct.  If you or a loved one is accused of any prostitution-related crime in Orange County, Los Angeles, Riverside or San Bernardino, call us for a free attorney consultation.  (714) 505-2468.  Ask for John.  Thanks for reading.

Santa Ana Prostitution Lawyer

Tuesday, January 19, 2016

New California Drug Law May Benefit Immigrants

For the past decade, California law has allowed some qualifying drug offenders to participate in a "diversion" program, also called "Deferred Entry of Judgement" ("DEJ"), or "PC 1000".  Upon successful completion of that program, participants were told by the courts that their cases would be dismissed and that they would be entitled to honestly state that the arrest and conviction never happened for all purposes.

Unfortunately for many immigrants, that last piece of advice was not entirely accurate.

In order to participate in the DEJ program, most courts require defendants to enter "guilty" pleas. After pleading "guilty", the defendant is ordered to attend and complete some form of counseling or self-help classes.  Once the defendant completes the mandatory classes, he returns to court and the case is dismissed and wiped off his criminal record.

The FBI, however, maintains a record of the arrest and subsequent court proceedings.  Under federal law, a person is deemed to be "convicted" of a crime if he pleads "guilty" and any form of punishment is imposed.  Regardless of what the defendant's state criminal record shows, participation in DEJ will constitute a "conviction" for federal immigration purposes.

Drug convictions are especially harmful in the immigration context.  Any drug conviction will likely result in deportation, exclusion from entry, denial of naturalization, and mandatory immigration detention without the opportunity to post bond.

In order to vacate a "guilty" plea for federal immigration purposes, the plea must be withdrawn "for cause". Previously, this had required criminal defendants to prove that they had received bad legal advice and that they had been harmed or prejudiced by their reliance on that bad advice.

Since California courts have effectively been dispensing bad legal advice for the past decade, our state legislature has finally decided to fix the problem that they created.  Their solution is PC 1203.43.  Under this new law, anyone who has successfully completed DEJ may withdraw his previous "guilty" plea "for cause".  The defendant need only show that state law had previously assured him that his "guilty" plea would be vacated upon successful completion of diversion, and that the state law had misled him regarding immigration consequences of the deal.

If you or a loved one has questions about drug charges, immigration, diversion or cleaning up a criminal record, call us for a free consultation.  (714) 505-2468.  Ask for John.  Thanks for reading.

Orange County Drug Diversion

Thursday, January 14, 2016

Fighting Elder Abuse Charges in California

Under California law, almost any crime can be treated as "elder abuse" if the victim is 65 or older, or if the victim is considered a "dependent adult" under the age of 65.

The most serious cases of elder abuse may involve allegations of physical mistreatment or blatant theft.  Fraudulent "home repair men" demand cash up front for services that they never perform. Phone scammers induce elderly victims to wire cash overseas.  Abusive relatives and caregivers drain bank accounts and leave grandma without appropriate care.  These are some egregious examples.

Many cases that are charged as "elder abuse", though, do not involve physical "abuse" in the ordinary sense of the term.  Most of the situations that I've dealt with in my practice involve people who spend money belonging to their elderly parents.  Often, the "victim" has allowed a son or daughter to sign checks, access bank accounts, and pay bills as necessary.  The elderly parent's health and mental faculties deteriorate to the point where they do not understand their own finances, or they don't remember ever authorizing the financial transactions in question. Somebody at the bank or the nursing home becomes suspicious and reports the activity to police or to Adult Protective Services.  By the time reports reach the DA's desk, investigators have compiled a case that sounds much worse than it probably is.

Other common situations of "elder abuse" that I've defended against involve cases where a family member has assumed the responsibility of providing care for an aging relative.  Before long, the caregiver finds that she is in over her head and that nursing an elderly patient is more time-consuming, expensive and exhausting than she could have imagined.  The caregiver lacks the necessary skills to provide in-home medical treatment, and the care that she attempts to provide falls below the standard that is considered acceptable.  Clients tell me that they sincerely tried to provide appropriate care, but they were simply overwhelmed with the demands of assisting an elderly family member.

If you or a loved one is accused of elder abuse in Orange County, Los Angeles, Riverside or San Bernardino, call our office immediately for a free consultation.  (714) 505-2468.

Do not speak to investigators, detectives, representatives from the Probate Court, emergency responders or hospital staff without an attorney present.  In my experience, those people have already determined that you are guilty of elder abuse in some form. They will attempt to induce you to say something against your interests, or something that could potentially be twisted against you.

If you are currently caring for an elderly relative and you believe that you've "bitten off more than you can chew", there are resources available to help you.  Call us to discuss your options before the matter turns into a criminal case.

Thanks for reading.

Orange County Elder Abuse Defense Lawyer