Wednesday, December 5, 2018

Everything You Wanted to Know But Were Afraid to Ask: "Lewd Conduct in Public" Edition

I've previously written here about section 647 of the California Penal Code.  Commonly referred to as "Disorderly Conduct", PC 647 prohibits everything from prostitution to peeping, loitering, sleeping in parks and being drunk in public.  Subsection (a), though, is the topic of today's post.

PC 647(a) makes it a misdemeanor to engage in any "lewd or dissolute conduct" in any public place or in any place that is exposed to public view.  To be convicted of this offense, the prosecutor must establish 5 elements:

  • That the defendant willfully touched his or her own genitals, buttocks or female breasts (or the genitals, buttocks or female breasts of another person),
  • That the defendant acted with the intent to arouse or gratify him / herself or another person, or to annoy or offend another person, 
  • The defendant was in a public place or a place that was open to public view, 
  • Someone else who might have been offended was present, AND
  • The defendant knew or should have known that another person who might be offended was present. 
That's a lot of unpack, and a lot of elements that may be open to some interpretation and argument.  Put simply though, the DA must prove that the defendant was doing something sexual in public view with the knowledge that he could be seen by someone who might not want to see whatever the defendant was doing.

It's interesting to note that breasts are only considered "lewd" on women.  If a man rubs his own bare nipples (or if someone else rubs a man's nipples) in public, there's no crime.  

In my previous post re: Drunk in Public cases, I explained that the legal definition of "public place" includes any place that is generally open and accessible to members of the public. This includes inside private businesses, on roads, in parking spaces, and even your own front porch.  Since it wouldn't be considered "trespassing" for a salesman to walk up your driveway and knock on your door, those spaces are considered "public places" for the purposes of PC 647.  The same is true for common hallways and courtyards in apartment buildings.  

The next two elements are where a lot of people get tripped up.  To constitute the crime of 647(a), the DA must prove that another person who might have been offended was present.  They do not have to prove that the onlooker was, in fact, offended.  The prosecutor must also prove that the defendant knew or should have known about the onlooker's presence, but they do not have to prove that the defendant intended to be seen.  

Even though PC 647(a) is a non-violent misdemeanor, it may carry heavy penalties, including jail time, probation, mandatory counseling, stay-away orders, fines and community service.  

There are many possible defenses to the charge of 647(a).  The best strategy in your particular case, though, will depend on the unique facts and circumstances surrounding your arrest. 

If you or a loved one has questions about PC 647(a) in California, call us for a free attorney consultation. (714) 449-3335. Ask for John

Thanks for reading. 

Thursday, August 16, 2018

Can I Be Arrested for Being "Drunk in Public" on Private Property?

Section 647(f) of the California Penal Code makes it a misdemeanor to appear in a "public place" while under the influence of alcohol or drugs.

In "drunk in public" cases, the question often arises over what technically constitutes a "public place".  There is a common myth that "drunk in public" laws are unenforceable inside bars because bars are private property.  This is false.

Under California law, a "public place" is defined as any place that is generally open and accessible to anyone who wishes to go there.  This includes private businesses that invite members of the public onto their premises.  Bars are considered to be "public places" in California.

Since roads, highways, and even parking spaces are "open and accessible to the public", California courts have ruled that they also qualify as "public places" for the purposes of PC 647(f).  This means that you can be arrested for being drunk in public if you are found intoxicated inside a vehicle while the car is in a public place (on the road or parked somewhere publicly).

In some states, you can be arrested for being intoxicated in a place that is visible to the public.  In California, though, it is not necessarily illegal to be under the influence of alcohol while exposed to public view.  It is perfectly legal for adults to get inebriated inside their own homes in California, regardless of whether or not they are visible to neighbors.

The front lawn of a private residence, however, is a different story.  In the landmark case of People v. Olson (1971) 18 Cal.App.3. 594, a California appellate court ruled that the area between the street and the front door of a private residence (including the lawn and porch) are considered to be "public places" for the purposes of PC 647(f).  Since it would not be considered "trespassing" for a stranger (e.g. a salesman, a Girl Scout, a mail carrier, etc.) to approach the front door of a private home, that area is considered to be "open and accessible", and therefore "public".  This means you can be arrested for being "drunk in public" on your own front lawn.  The same is true for common hallways and courtyards of apartment buildings -- if those areas are generally open to members of the public who may pass through while conducting lawful business, then they are considered to be "public places".

In my view, there are still some unanswered questions here.  What if, for example, your front lawn is enclosed with a white picket fence?  Is that still considered "open and accessible?  What if you have a "No Trespassing / No Solicitors" sign posted?  How about a super exclusive, members-only bar?  Or a Masonic Lodge?  Are these places "open to the public"?  I could see arguments going both ways.

There are many possible defenses to PC 647(f) charges in California.  The best strategy in your particular case will depend on the unique facts and circumstances.  If you or a loved one has questions about a "drunk in public" case in California, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.

Thanks for reading.

Fullerton Criminal Defense Lawyer

Drunk In Public on Catalina Island -- What to Expect

In the 9 years that I've been serving clients in the Catalina Courthouse, I have watched the island turn into a hot spot for Drunk in Public enforcement.

Not long ago, local sheriffs would regularly escort drunken tourists back to their hotels.  If an inebriated visitor couldn't remember where he was staying, or if he didn't have accommodations for the night, deputies would even him help book a room.  It took effort to get arrested for PC 647(f) in Avalon.

In the rare case where someone was actually cited and booked for being dangerously drunk, the prosecutor was generous with a plea offer when the case got to court.  A typical deal used to include reducing the misdemeanor charge to an infraction, paying a small fine, and promising not to do it again.

Times have changed, though.  A new crop of deputy sheriffs and prosecutors on the island have recently adopted a zero-tolerance, no-holds-barred approach to disorderly conduct in Avalon.  Today, the Catalina Court imposes some of the harshest penalties in the state for alcohol-related offenses.  Standard offers now include probation, hefty fines, mandatory attendance at AA meetings and significant amounts of community service or hard labor (not to mention, a misdemeanor conviction on your criminal record).  This doesn't mean that the DA always gets what they want, but you and your attorney should be prepared for a fight.

Lawyers from outside of the area may be shocked when they appear in court on the island for the first time.  In most courthouses, "drunk in public" is considered a very petty crime.  Prosecutors in downtown LA, for instance, have bigger fish to fry.  They cannot afford to dedicate significant resources to throw the book at some tourist who got caught staggering back to his hotel.  Catalina takes these cases seriously, though.  You should, too.

Section 647 of the California Penal Code governs a variety of bad behaviors that collectively fall under the umbrella of "disorderly conduct".  Subsection (f) specifically prohibits public drunkenness.  PC 647(f) is a misdemeanor, meaning that the maximum penalty includes 6 months in jail and a base fine of $1,000.00.  After all the mandatory fees and court costs are tallied, the total maximum fine is about $5,000.00.

To be convicted of PC 647(f), the prosecutor must prove 3 elements:

  1. That the defendant was under the influence of drugs or alcohol, AND
  2. That the defendant was in a public place, AND
  3. That the defendant was unable to care for his own safety or the safety of others, OR that the defendant interfered with a sidewalk or public walkway
Each of these elements is subject to some argument and interpretation.  How drunk does someone have to be before he is considered "under the influence"?  What if the person had been "dosed" or was involuntarily impaired?  What counts as a "public place"? etc.  These cases can be more complicated than they appear.  

Of course, the defense in your case will depend on the specific facts and circumstances surrounding your arrest.  Why were deputies summoned in the first place?  Did some witness(es) complain about your behavior?  Was the arrest recorded in any way (audio or video)?  Did the arresting officers conduct any sort of chemical test (e.g. a breathalyzer, etc.)?  Were you cooperative or belligerent?  Do you have a history of alcohol-related arrests?  Do the "interests of justice" dictate that you be harshly punished or that you deserve some lenience?  

Our office defends more cases on Catalina Island every year than any other private attorney in the State of California.  We have extensive experience in fighting against Drunk in Public charges, as well as all other misdemeanors that arise in and around Avalon.  In most cases, we can appear in court on your behalf so that you don't need to worry about traveling all the way back to Catalina for a series of court appearances. 

If you or a loved one have been cited or arrested while visiting Catalina, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.  
  

Thursday, August 9, 2018

How Long Will it Take to Resolve My Criminal Case?

One of the most common complaints I hear from my clients is that their case is taking much longer to resolve than they had anticipated.  Unfortunately, many defendants unrealistically expect that their complicated legal issues can quickly and easily be settled with a couple phone calls. Some clients believe that a lawyer can simply explain their defense to the judge and the court will immediately dismiss the case and apologize for the inconvenience.  If things were that simple, my job would be a lot easier.

As a criminal defense attorney, part of my job is to explain the process so that my clients know what to expect, and so that they are empowered to make the best decisions in their own cases.  If they do not understand what's going on and why it's taking so long, then I have not done my job.

I think that crime shows contribute to some misunderstandings about the criminal justice system. TV shows tend to oversimplify most of the boring procedural issues so that a complicated, convoluted process fits neatly into a 30-minute time slot.

In today's post, I want to break down the timeline of a typical misdemeanor investigation and prosecution.  Keep in mind, this is typical misdemeanor -- complicated misdemeanors can take longer, and felonies can take even longer than that.
  • Day 1:  The incident and arrest  
To make matters simple, let's say you are arrested on suspicion of DUI on New Year's Day, January 1.  You'll probably be taken to jail for the night and released in the morning.  When you are released, the police will assign a court date, usually about 8-12 weeks in the future.  In this case, you might be ordered to appear in court around March or April.
  • Day 2 - 60:  The investigation
Between the time of your arrest and your first court date, police will compile reports about the incident.  They will gather all of the relevant evidence and they will forward their findings to the local prosecutor (Note: most misdemeanor prosecutions are conducted by the District Attorney for your county.  They may also be conducted by the local City Attorney, though.  For the sake of simplicity, I will use "DA" and "prosecutor" interchangeably).  Some law enforcement agencies move much faster than others.  The CHP and the Dept. of Fish & Wildlife, for example, move notoriously slowly in their investigations.
  • Around Day 60:  The filing of criminal charges
After the prosecutor receives all the reports from the arresting agency, they will make a decision regarding the filing of criminal charges.  Remember, the police do not "file charges", they only investigate crimes and forward their findings to the prosecutor.  Also keep in mind that victims of crimes do not "file charges" either.  Police may ask the victim if he or wishes to file charges, and the DA may take the victim's wishes into consideration, but the ultimate decision of whether or not to pursue a criminal case rests with the prosecutor alone.  The DA ultimately decides what charges, if any, to file.  Similarly, police and victims may not simply decide to "dismiss" a case (since they aren't the ones who filed it in the first place).

In most cases, prosecutors will review the police reports and file their case against you before the date when you were ordered to appear in court.  It's very common, though, for delays to occur at this stage.  You might show up in court on the appointed day and find that your name is not on the calendar.  Maybe the DA had questions after reading the police report and they sent the case back to the arresting agency for a more thorough investigation.  Or maybe the police did not forward their reports to the DA as quickly as they had anticipated.  Or maybe you're just a low priority and your paperwork is still buried under a pile of other cases at the DA's office.  Whatever the reason for the delay, you're left playing the waiting game.  This does NOT mean that you're "out of the woods", or that the charges have been dismissed.  It just means that your case hasn't been filed yet.  In California, prosecutors have up to one year from the date of the incident to file most misdemeanors.  You will be notified by mail when they eventually get around to filing your matter.
  • Day 60-90:  Arraignment
For the sake of keeping things simple, let's assume that the police sent their reports to the prosecutor in a timely manner, the DA has reviewed all of the evidence, and they have filed misdemeanor charges against you by the time you appear in court.

The first court appearance is called the "arraignment".  At the arraignment, prosecutors will officially notify you of the charges that you are facing.  Copies of the police reports will be provided to your attorney.  You can either plead "guilty" and resolve your case on the spot, or you can plead "not guilty" and begin the process of fighting your case.

Remember, the arraignment is NOT the time to present your defense.  The court will not hear evidence, argument or witnesses at this hearing.  The arresting officer will not be present.  The arraignment is merely a formality where some preliminary information is exchanged between the lawyers.  This is one area that generates a lot of confusion with some defendants.  As I mentioned above, though, it's my job to clear up any misconceptions so that my clients know what to expect.

Often, defendants want to be heard at the arraignment.  If they can just explain the big misunderstanding, the DA or the judge will immediately throw the case out (they believe).  This impulse is understandable, especially when defendants truly believe that they are innocent of the charges.  As I said, though, this is not the time or the place for argument.  You will have an opportunity to present evidence in your own defense, but not at the arraignment stage.  
  • Day 120, 150, 180, etc.:  Pretrial Conferences 
If you decide to plead "not guilty" and to start the process of fighting your case, then the attorneys will schedule a "pretrial conference" approximately 30-45 days after the arraignment, depending on the court's availability.  At the pretrial conference, attorneys will exchange more evidence and they will start to discuss various options to resolve the case.  The DA might have an offer for the defense attorney to present to his client.  The defense attorney might have a counter-offer that the prosecutor needs to discuss with his supervisors.  Your attorney might explain to the DA that the case is weak or that you have some valid defense.  He might also request copies of "supplemental discovery" -- video / audio recordings that are described in the police reports, etc.

This is also the stage where your defense attorney might file motions to dismiss the case for a variety of reasons.  If your lawyer believes that police or the DA has done something improperly during the course of the investigation or the prosecution, there may be valid grounds to ask a judge to exclude evidence or to throw the case out completely.  

Since attorneys are still exchanging evidence, offers and counter-offers at this point, it is common to conduct several pretrial conferences, usually spaced about 30-45 days apart.  Again, this area generates some misunderstanding with clients.  "It's been 4 months and the case still isn't resolved?  What's going on?", they ask.  And again, it's my job as an attorney to keep my clients informed of what I'm working on.  

Eventually, your defense attorney and the DA might reach an agreement.  Either the case is weak and it must be dismissed or reduced, or the case is strong and you should accept a generous plea deal while a good offer is still on the table.
  • Day 210+: Trial
If the attorneys cannot make a deal, or if the defendant is not willing to accept an offer, then the case may eventually head to trial.  This is finally your opportunity to present evidence and argument in open court.  

Misdemeanor trials usually last about a week, including the time it takes to select a jury and for the jury to deliberate on their verdict after the evidence has been heard.  

As you can see, it is common for simple misdemeanor cases to last 6 months or more before they are resolved, assuming that there are no delays in the investigation or in filing the initial case.  

Since prosecutors have up to a year from the date of the offense to file most misdemeanor charges, cases may take even longer when the DA or the court is backlogged.  

The take-away is that misdemeanor prosecutions can be a marathon.  They're often longer and more complicated than many defendants expect.  Even when you're 100% innocent, don't expect the case to be resolved with a couple phone calls or a quick meeting with the DA.  

While the case is pending, though, you should feel free to communicate with your attorney so that you understand what he or she is working on.  If your lawyer is not available to speak with you and to provide you with regular updates, get a new lawyer.  Answering phone calls and communicating with clients should be the easiest part of the job.  If your lawyer can't do that properly, then he isn't doing what you hired him to do.  

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

Thanks for reading.  

Wednesday, August 1, 2018

Am I Eligible for an Expungement in Californina?

Sections 1203.4 and 1203.4a of the California Penal Code govern process of applying to have an old conviction removed from your criminal record.

If granted, an expungement will result in the dismissal of charges against you.  An expungement will not actually erase the records of your case.  Instead, a successful expungement will change the disposition in your case from a "conviction" to a "dismissal".  Once you've earned a dismissal, you are entitled to honestly state that you have no criminal convictions in your background (for most purposes).

There are a lot of criteria that you must satisfy before you are eligible to have your old case dismissed.  Here's a simplified flow chart:

  • Were you convicted of a crime?  If so, keep reading.  If not, then you have nothing to expunge.  There is a separate process to seal arrest records in California if you were arrested and not convicted of any crime, but that's a subject for another blog post.  
  • Was the crime a felony?  If so, you are ONLY eligible for an expungement if you successfully completed probation.  If you were convicted of a felony and NOT granted probation (i.e. you were sentenced to state prison or to county jail under PC 1170(h)), then you are not eligible. 
  • If the crime was a misdemeanor, were you granted probation?  Did you successfully comply with all the terms of your probation for the entire period?  If so, then you are probably eligible for an expungement, but keep reading.  If you ever violated the terms of your probation, then you are not automatically entitled to an expungement, but a judge may still grant one if doing so "serves the interests of justice".  
  • If the crime was a misdemeanor or an infraction and you were NOT granted probation, has more than 1 year elapsed since the conviction or since your release from custody?  If so, keep reading. 
  • Are you currently on probation for any other case?  You are not eligible for an expungement while you are currently on probation, but you MIGHT be eligible to terminate your probation early.  Once you are released from probation, you may immediately become eligible to apply for your expungement.  
  • Do you currently have charges pending or outstanding warrants in any other case?  You are not eligible for an expungement while you are currently fighting another case.  
If you satisfy these criteria and you are clearly eligible for an expungement (you successfully completed probation without any violations, you are not currently on probation in any other case and you have no pending charges or outstanding warrants), then the process is fairly simple and straightforward.  You or your attorney simply need to fill out the appropriate forms, serve them on the DA, file them with the court, and wait 3-6 weeks for the judge to mail back your signed copies of the court's dismissal order.  

Expungement petitions can also get complicated, though.  As mentioned above, judges have discretion to grant or deny applications when the record shows that you have violated probation (by missing a payment, failing to complete some court-ordered class on time, etc.).  In those cases, the DA will argue that you are not eligible and that the petition should be denied.  When that happens, your attorney must make a compelling argument to convince a judge that granting the expungement serves the "interests of justice".

These cases also get complicated if you are currently on probation.  Again, judges have the authority to release you from probation early, but it can be difficult to convince them to exercise that power.  They always start from the assumption that the sentence you received was fair and appropriate at the time it was imposed.  If you did not agree that the sentence was fair when you accepted it, then you should have taken the case to trial.  You may not simply argue "buyer's remorse" because you believe you got a bad deal.  Instead, you must convince the judge that the deal you accepted is no longer fair.  See the difference?  The judge wants to see that you have been reformed (you've attended a lot of AA, etc.), you have learned your lesson, you have demonstrated exemplary performance during the time that you have been on probation, and most importantly, that there is some important reason why releasing you from probation now actually serves the most good for society.  Valid reasons include job offers, opportunities to join the military, or some proof that being on probation prevents you from going back to college, etc.  

If you or a loved one has questions about clearing up your criminal record with an expungement, or about trying to get off probation early, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.  

Thanks for reading. 

Thursday, July 26, 2018

Is Open Carry Now Legal in California?

The big news this week comes from the 9th Circuit Court of Appeals in California.  The traditionally (notoriously?) left-leaning federal court delivered its second pro-gun ruling in as many weeks, and pundits on both sides of the gun control debate are losing their minds.  Today, I want to spend a minute breaking down what this ruling actually means, and where we go from here.

On Tuesday, a 3-judge panel of the court announced its decision in the case of Young v. Hawaii.  The State of Hawaii requires citizens to apply for a county-issued license before they may openly carry firearms in public.  The plaintiff in this case had applied for a license and been denied twice.  He argued that the state's restrictive laws regarding carrying firearms in public violated the 2nd Amendment, and court agreed.

To explain their reasoning, the majority cited the recent decisions in Heller and McDonald.  Those two cases established the right of law-abiding adults to keep handguns in their homes for self-defense.  In Peruta, though, the court determined that the citizens do NOT have a right to carry concealed weapons in public.  Since citizens have a constitutional right to "bear" (or "carry") weapons for self-defense, but they DON'T have a right to carry concealed weapons in public, the court reasoned that they must have a meaningful opportunity to carry firearms openly in public places for their own protection.  States can make some reasonable rules and regulations about carrying weapons in public, but they may not simply prohibit the practice.

The 9th Circuit sent the case back to the lower court in Hawaii for further proceedings consistent with the newly-announced rule.  Now, the legal team for the state must decide whether or not to request an en banc ruling, where every judge on the circuit would have an opportunity to hear the matter.  If the case is heard by a full panel of judges in the 9th Circuit, it is very likely that the ruling would be reversed again.  Of course, that would inevitably lead to another appeal to the Supreme Court, where a conservative majority could reverse again and announce a nationwide right to openly carry handguns in public.

For now, this latest ruling from the 9th Circuit only narrowly applies to Hawaii's rules regarding the issuance of "open carry" licenses.  It seems to open the door, though, to more challenges over California's restrictive regulations about carrying weapons in public (or in vehicles, etc.).  Unlike Hawaii, California doesn't even allow law-abiding citizens to apply for a license to openly carry a firearm in public -- all "open carry" is completely banned in the Golden State.  It is virtually impossible for the average citizen to obtain a concealed carry license in most parts of the state, too.  If the ruling in Young withstands the next round(s) of appeals, that might change.

Stay tuned to see how this plays out.

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

Thanks for reading.

Fullerton Gun Lawyer

Thursday, July 12, 2018

Get a Felony Off Your Record

A felony conviction will follow you around for the rest of your life, making it difficult (or impossible) to get a job, vote, join the military, earn a professional license, or purchase firearms.  If you've been arrested or convicted for a felony in California, though, there may be options available to get that charge off your record.

If you are arrested and the DA declines to file charges, the mere fact that you were once arrested on suspicion of a felony can cause problems down the road.  Luckily, California now provides a procedure to seal records if your arrest did not result in a conviction.

If you are charged with a felony, your attorney might successfully negotiate a plea deal for a reduced charge.  Depending on the nature of the charge, the strength of the evidence, and your criminal history, the DA may eventually settle for a misdemeanor.  In many cases, prosecutors try to gain bargaining leverage by alleging felonies when misdemeanor charges are really more appropriate.

PC 17(b) 

When the DA is not willing to reduce a felony charge during plea negotiations, a judge may do so in some cases.  In California, section 17(b) of the Penal Code gives judges the discretion to reduce some felonies to misdemeanors when doing so "serves the interests of justice".  If your charge is eligible for a reduction, the judge can exercise that option at any point in the criminal process -- before trial, after trial, or even years after a conviction.  If judge agrees to reduce your felony to a misdemeanor in the interests of justice under PC 17(b), that conviction will forever be considered a misdemeanor for all purposes.  All rights are immediately restored, including the right to purchase and possess firearms.

Prop. 47

Since voters approved Prop. 47 in 2014, many crimes that were formerly classified as felonies or wobblers are now straight misdemeanors.  If you were convicted of a qualifying felony, you may be eligible to retroactively reduce that conviction to a misdemeanor.  Unlike a reduction under PC 17(b), though, a reduction under Prop 47 will not restore your right to purchase or possess firearms.

Prop. 64

Under Prop 64, many marijuana-related offenses were either abolished entirely or reduced from felonies to misdemeanors.  Individuals who have old marijuana-related convictions may also be eligible to have those charges dismissed or reduced.  A Prop 64 reduction will not restore gun rights.

PC 1203.4 

The final option to clean up your criminal record in California is a PC 1203.4 Petition for Dismissal (commonly known as an "expungement").  Under PC 1203.4, you may be eligible to have an old case dismissed after you have successfully completed probation.  If you were sentenced to prison, though, you are not eligible for relief under 1203.4.

If you or a loved one has questions about cleaning up your criminal history or applying to have a felony removed from your record, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.

Thanks for reading.

Fullerton Expungement Attorney