Friday, January 15, 2021

Two New California Laws Upend the Justice System

Two new laws took effect in California on January 1, 2021.  Together, they are going to drastically change the way that most misdemeanors are prosecuted.  

1-Year Cap on Misdemeanor Probation

The first of these new laws, AB-1950, amends section 1203 of California Penal Code to cap the length of probation for most misdemeanors at 1 year.  

Previously, the standard term of probation for most misdemeanors was 3 years.  This is "summary" probation (also called "informal" probation, or "court" probation), so the defendant does not have a probation officer.  Instead, a judge simply orders a defendant to remain law-abiding for the 3 year period following a misdemeanor conviction.  If the defendant is arrested for any new crime during that time, he or she must answer for the probation violation in addition to any penalties for the new offense.  

Proponents of the new law argued that long terms of probation resulted in over-incarceration and made it difficult for people to find work after a conviction for some petty offense.  They also argued that long probationary sentences disproportionately affected minority communities and actually contributed to high recidivism rates.  

Capping the length of probation at one year will also make more people eligible to expunge their records sooner after convictions.  In California, an expungement has the effect of dismissing a conviction after the fact.  To apply, a defendant must show that he successfully complied with all terms of probation and that he is not currently on probation.  Previously, that meant the applicant had to wait 3 years from the date of his conviction before he was eligible for relief.  Under the new rules, defendants will only have to wait 1 year before they can petition to have a case dismissed. 

Judges Have New Powers to Grant Diversion

Starting January 1, 2021, PC 1001.95 grants judges in California new powers to offer "diversion" to defendants in misdemeanor cases, even over the prosecutor's objection.

"Diversion" works like this: rather than running a defendant through the meat grinder of the criminal justice system, the court will order him to complete various terms before he is convicted (in contrast to probation, which runs after the defendant is convicted).  The terms may include things like AA meetings or anger management counseling, etc.  If a defendant successfully completes the terms and remains law-abiding for some period of time, all charges are dismissed and the arrest is deemed to have never occurred.  

Traditionally, the decision to grant diversion was entirely up to the prosecutor.  A judge could refuse to allow it, but he or she could not offer diversion over the DA's objection.  Judges weren't typically involved in dictating the terms of diversion, either.  This new law gives judges sweeping new authority to craft their own diversion deals and to tailor programs for individual defendants.  

PC 1001.95 allows for diversionary periods up to 2 years long.  During this time, the defendant must remain law-abiding in order to earn an eventual dismissal of charges.  If the defendant fails to comply with diversion or is arrested on new charges, diversion will be terminated and the case will be sent back to the traditional justice system.  

All Together Now

Think about what both of these new laws mean, taken together.  If a defendant decides to participate in diversion, a judge could have broad authority to set and enforce various terms for up to 2 years.  The "light at the end of the tunnel" is an eventual dismissal.  

But if the defendant says, "forget that", and simply decides to go through the old-fashion justice system, he will be off probation and eligible for an expungement after only 1 year.  The effect is essentially the same, but a defendant's period of supervision is only half as long. 

There are some other, technical distinctions, and there may be some situations where diversion is preferable over probation.  I will have to analyze each matter on a case-by-case basis going forward, though.  Diversion is not as generous as it seems, and it might not be the best fit for every client.  

If you or a loved one has questions about probation, diversion, or any other criminal matter in Orange County, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.  

Thanks for reading. 

Fullerton Criminal Defense Attorney

Monday, December 28, 2020

Manufacturing Concentrated Cannabis in California

Section 11379.6 of the California Health & Safety Code prohibits the manufacture of specified drugs, "by chemical extraction".  This includes production of butane hash oil (AKA, "honey oil", or "BHO").  Violation of HS 11379.6 is a felony and is potentially punishable by 7 years in jail and a fine of $50,000.  After the court's mandatory "costs" and "assessments" are included, that fine reach about $200,000-300,000.  It should go without saying that police and prosecutors treat this law very seriously.  

There are a lot of misconceptions around HS 11379.6 and today I wanted to spend some time addressing a few of the big misunderstandings that get folks into trouble.  I didn't make up these rules, I'm just a lawyer who knows what the rules are.  

The first confusing thing about this code section is it's title - "Manufacture of a Dangerous Drug".  HS 11379.6 falls within Article 5 of the California Health & Safety Code.  That Article is mostly dedicated to "dangerous" drugs, like PCP and methamphetamine.  Rules about marijuana are listed in Article 2 of the code, so any mention of cannabis among the "dangerous" drugs in Article 5 immediately seems out of place.  The legislature chose to include concentrated cannabis here because the process of extraction is dangerous, not because the substance itself is particularly harmful.  Using solvents and butane without adequate ventilation and safety precautions can cause explosions.  

Ironically, California's decision to legalize marijuana in 2016 led to more confusion and a big uptick in arrests under HS 11379.6.  Since 2016, adults in California have been allowed to legally cultivate small amounts of cannabis for personal use.  They can also buy concentrated cannabis from licensed retailers.  They cannot, however, use volatile chemicals (like butane) to produce it without the proper state-issued licenses.  Many of my clients are sincerely surprised to learn that using butane to produce hash oil is still illegal. 

Some of my clients are also surprised to learn that producing BHO is illegal even if it's only for personal use.  The DA does not need to prove that a defendant sold the BHO or intended to sell it -- intent to distribute is not an element of the offense (selling unlicensed BHO is a separate crime).  Making a tiny bit of BHO in your apartment for your own personal use is a felony and can land you in jail for up to 7 years.  Of course, most small-scale, first-time offenders won't be sentenced to anything close to that.  Be advised, though, that any use of butane to produce concentrated cannabis can lead to serious charges, even if it is only done on a small scale for personal consumption.  Any felony conviction can have major immigration consequences and will result in the loss of your right to possess firearms for life.  

There are many possible defenses to HS 11379.6, including illegal searches, improper police procedures and sloppy lab testing.  If you or a loved one has been arrested and charged for manufacturing concentrated cannabis, call our office for a free attorney consultation.  (714) 449-3335.  Ask for John.  We have extensive experience defending against these types of charges and we can help ensure that you are treated fairly throughout the process.  

Thanks for reading.  

Orange County Drug Lawyer

Tuesday, November 17, 2020

What is "Elder Abuse" in California?

Section 368 of the California Penal Code covers a wide variety of crimes against elders and dependent adults.  Violations of PC 368 are collectively referred to as "elder abuse", and may be punishable by up to 4 years in prison.  

If a victim of elder abuse is seriously injured, a conviction can carry an additional 5-year "enhancement" (on top of the 4-year maximum sentence).  If an elderly victim dies as a result of abuse or neglect, the sentencing enhancement goes up to 7 years.  It goes without saying that courts and prosecutors take allegations of elder abuse very seriously.  

The penalties for elder abuse may be severe, but these cases are rarely "cut-and-dry".  Complicated family relationships can lead to false allegations, and terms like "undue influence" are open to a lot of interpretation.  These types of cases are often very defendable with the right attorney on your side.  

Who is Considered an "Elder" or "Dependent Adult"?

Any person who is 65 or older is considered an "elder" under California law.  Penalties for elder abuse go up if the victim is over 70.  

Laws against elder abuse also protect "dependent adults".  A "dependent adult" is defined as any person between the age of 18-64 who suffers from some mental or physical disability which restricts his or her ability to carry out normal activities or to protect his or her own rights.  

What is Considered "Abuse"?

PC 368 includes a huge range of things that can be considered "elder abuse", including:

  • Causing or permitting an elder to suffer unjustifiable physical or mental suffering
  • Causing or permitting an elder to be injured
  • Causing or permitting an elder to be placed into a situation where his or her health is endangered
  • Committing any act of theft, embezzlement, forgery, fraud or identity theft against an elder 
  • Committing false imprisonment of an elder
Notice that this list includes a lot of obvious examples of abuse, but some of the acts that can be charged as "elder abuse" are less intuitive.  Many of my clients are surprised to learn, for example, that they can be prosecuted for allowing an elderly family member to be placed into a situation that endangers his or her safety.  

If your elderly father likes to walk the dog but one day he falls and breaks his hip, you can be prosecuted for "permitting" your father to be injured.  If you care for an elderly family member who allows his house to become cluttered or stops practicing basic hygiene, social workers may get involved and report you to the District Attorney for allowing the situation to become unsafe.  

Financial Abuse

Allegations of financial abuse get even more complicated.  Of course, it's illegal to steal money from anyone.  Cases of financial abuse involving elders are difficult, though, because the elderly "victims" often give away money to friends or family members willingly.  When other family members get jealous or suspicious, police reports get filed and the criminal cases can spin out of control quickly. 

Penalties for financial abuse of an elder are severe, too.  A first-time conviction can carry up to 4 years in prison and a fine of $10,000, plus mandatory fees and "penalty assessments".  Once those fines and fees are added up, the total penalty can be more than $60,000 (plus, of course, restitution for the value of any property that was taken).   

Who is Considered a "Caretaker"?

A caretaker is legally defined as, "a person who has the care, custody or control of, or who stands in a position of trust with, an elder or a dependent adult".  

Notice a few things about this definition: it says "a" person, not "the" person who has the care of an elder.  That means the label can be applied to anyone who is responsible for an elderly person's care.  A "caretaker" does not necessarily have to be a licensed nurse or the victim's closest living relative.  Any person who is responsible for the care of an elderly person can be criminally prosecuted if the victim is abused, neglected or placed into a dangerous situation.  

Notice also that the definition of "caretaker" includes anyone who "stands in a position of trust" with the elderly person or the dependent adult victim.  That's a very loose definition, and it may be subject to a lot of argument.  

Restraining Orders

If a defendant is convicted of elder abuse, the court will issue a "criminal protective order".  Depending on the circumstances, the CPO may order that person to stay a certain distance away from, or to have no contact with the elderly victim.  CPOs usually remain in effect for the duration of probation  In some unusual cases, though, a CPO may remain in effect for up to 10 years.  

As their name implies, Criminal Protective Orders are issued by the criminal court as part of the criminal case.  Victims of elder abuse may also seek the protection of an Elder Abuse Restraining Order in civil court, regardless of whether or not any criminal charges have been filed.  An EARO can remain in effect for up to 5 years, but may be renewed if necessary.  

Anyone who is the subject of a Criminal Protective Order or an Elder Abuse Restraining Order will be prohibited from owning or possessing firearms and ammunition while the order is in effect.  If they have weapons registered in their name, they will be ordered to turn them over to police, or else sell them to a licensed firearms dealer within 48 hours.  The California Department of Justice has regional teams that are specifically responsible for enforcing these orders.  If they determine that a prohibited person is unlawfully in possession of firearms, they will conduct compliance checks and serve search warrants if necessary.  

Allegations of elder abuse are serious.  If you or a loved one has been arrested or accused of elder abuse, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.  Our office has extensive experience defending against these charges and we can help.  

Thanks for reading.  

Thursday, November 12, 2020

Catalina Island: Land of the Golf Cart DUI

It's been a long, lonely summer, but crowds are finally returning to Catalina Island.  With the influx of visitors, Avalon has seen a surge in golf cart-related accidents and DUI arrests over the past few weeks.

Under California law, it is illegal to operate any motorized vehicle while under the influence of alcohol, or with a blood-alcohol concentration (BAC) greater than 0.08%.  The rule also extends to drugs other than alcohol, and even to drugs that are legal or proscribed by a doctor.  That includes marijuana, Xanax, Adderall, pain medication, and anything else that inhibits a driver's ability to operate a vehicle safely.  

Drug-related DUI charges can be complicated because, unlike alcohol, there is no legal threshold that clearly defines how much Xanax, marijuana, or Adderall is "too much" to drive.  Those drugs might affect individual users differently, and some amount of them might actually a user safer behind the wheel, if the user is taking those drugs under a doctor's prescription.  

"Motorized vehicle" is not limited to gas-powered cars and trucks.  Golf carts have motors, so they're included.  That means -- and many visitors to Catalina are surprised to learn -- that you can be arrested for DUI in a golf cart.  You can even be arrested for DUI in a golf cart if you haven't been drinking, but you've been taking legal drugs.  

If you've ever driven a golf cart, you know that they do one thing well -- tip over.  Golf cart roll-over accidents are surprisingly common on the island, with its steep hills and hairpin turns.  Occasionally, these minor accidents result in major injuries.  If a driver is found to be under the influence and he contributes to a collision resulting in an injury, the DUI can be charged as a felony. 

All the other normal traffic laws also apply on Catalina Island, including laws against leaving the scene of a collision without exchanging information ("hit & run").  Any time a driver is involved in a collision that results in property damage or injury, he is required to immediately exchange insurance information with the owner of the property if that person can be ascertained.  If the driver cannot reasonably find the owner of the damaged property, he must report the incident to police.  Laws against leaving the scene of a collision even apply if public property is damaged (e.g. a retaining wall, a traffic sign, etc.).  With so many recent golf cart-related collisions in and around Avalon, the local sheriff's department has reported an uptick in hit & run incidents.  

Our office has extensive experience defending against DUI and Hit & Run cases on Catalina Island.  There are many possible defenses to these charges, but only a qualified attorney can determine the best strategy to fight your particular case.  

If you or a loved one has been cited or arrested on Catalina Island, call our office for a free, confidential attorney consultation.  (714) 449-3335.  Ask for John.  

Thanks for reading.  

Monday, October 12, 2020

CA Tightens the Noose on Gun Owners

By now, most California gun owners are aware of the state's restrictive laws against many commonly-owned firearms and accessories.  Every year, politicians in Sacramento add new regulations to chip away at the types of weapons that Californians are legally entitled to possess.  Today, I want to give a brief run-down of where we are and how we got here.  Specifically, I want to discuss California's unique approach to the regulation of "assault weapons".

Possession of an "assault weapon" has been a crime in California since 1991.  A violation can be punished by up to three years in jail.  The definition of an "assault weapon" has continued to expand since that time.  Many common rifles that were legal to purchase and possess just a few years ago are now considered to be contraband.  That means Californian gunowners may be unknowingly breaking the law by simply possessing something that they purchased legally. 

The Bullet Button

Prior to 2017, a semi-automatic rifle was considered to be an illegal "assault weapon" if it had at least one prohibited feature (e.g. a pistol grip, a flash hider, a telescoping stock, etc.), and a "removable" magazine.  A magazine was not considered to be "removable" if its removal required the use of some tool.  Simple magazine release buttons were prohibited.  Gun manufactures responded with the "Bullet Button".  The Bullet Button was essentially a magazine release button that could not be pressed by the user's finger.  Instead, it required the shooter to insert the tip of an unspent round to release the magazine and reload.  This clever workaround allowed Californians to quickly and easily eject their empty magazines while still complying with PC 30515's prohibition on "removable" mags.  

Starting in 2017, though, the California legislature made a few changes to close this loophole.  Rather than prohibiting assault weapons with "removable" magazines, the law was updated to ban possession of any assault weapon with a magazine that is "not fixed".  A "fixed" magazine is one that cannot be removed without disassembling the action of the firearm.  This subtle amendment was specifically intended to prohibit the Bullet Button. 

Registration of Assault Weapons

Individuals who owned assault weapons before the new law took effect were required to register their Bullet Button rifles with the state's Department of Justice.  Registration was a complicated process that included sending photos and descriptions of the firearm, along with some personal information about the owner and paying a fee.  

The window to register assault weapons closed forever on July 1, 2018.  No new assault weapons may be registered after that date.  Anyone who legally owned an assault weapon instantly became a criminal if they failed to follow the state's complicated registration process before the deadline.  Since 7/1/18, possession of an unregistered assault weapon in California has been punishable by up to three years in jail. 

Many people failed to comply with the assault weapon registration deadline because they wrongly believed that their rifles were "registered" at the time they were initially purchased.  Unfortunately for them, registration of an assault weapon is another process entirely.  Whatever paperwork they prepared and signed at the time of purchase is not sufficient to satisfy California's assault weapon registration requirement.  

The Post-2017 Loophole

In response to the new regulations that took effect in 2017, some enterprising gun manufacturers identified another glaring loophole in the state's prohibition of common firearms.  PC 30515 specifically defines what is and isn't considered to be an "assault weapon".  That section spells out various criteria under which a pistol, rifle or shotgun may fall within the prohibition.  But what if a firearm doesn't fit squarely in any of these categories?  Enter the Franklin Armory Title 1. 


The Franklin Armory Title 1 is neither a rifle, a pistol, nor a shotgun.  Therefore, it is excluded from the definition of an "assault weapon".  Photo taken from Ammoland.com.

Under California law, a pistol is legally defined as a firearm that is under 26" in overall length and is capable of being concealed upon a person.  A rifle is a firearm that includes a stock and is intended to be fired from the shoulder.  A shotgun is something else entirely.  The Franklin Armory Title 1 is none of those things.  It is 32" long and does not include a shoulder stock.  Accordingly, it is not an "assault weapon"...  

...for long.  The California legislature is at it again, this time burying more firearm restrictions deep within this summer's budget package.  The latest additions amend PC 30515 to include firearms that don't qualify as "rifles", "pistols" or "shotguns" among the state's growing list of prohibited assault weapons.  The emergency legislation was specifically intended to keep the FA Title 1 out of California.  

Registration 2.0

Individuals who purchased and legally possessed an FA Title 1 before 9/1/20 must again register their weapons with the state's Department of Justice before 1/1/22.  And again, failure to follow the complicated registration process will instantly turn the possessor into a criminal.  

California gun laws are complicated and getting more restrictive every year.  If you or a loved one has questions about your rights, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.  

Thanks for reading.  

Wednesday, October 7, 2020

What We're Working on Now: October 2020 Edition

Summer is turning into fall and Orange County Court operations are still severely impacted by the ongoing pandemic.  Many hearings are now being conducted remotely (over the phone or by video conferencing).  Hearings are also being streamed live over YouTube.  Links are available at occourts.org.  

The courts are taking extraordinary measures to reduce crowding and to enable "social distancing".  Face coverings are required and admittance to buildings is limited.  

To make matters more complicated, the North Justice Center (Fullerton Courthouse) is closed indefinitely while structural engineers evaluate some new cracks that recently appeared in the building's foundation.  All of the cases that had been scheduled for hearings in Fullerton have temporarily been reassigned to other courthouses around Orange County.  

Here's an update on some other recent developments at our office and around the Orange County Courts in general:

New Misdemeanor Arraignments

The court is not scheduling any new misdemeanor cases for in-person appearances unless the defendant is in custody.  If you were cited and ordered to appear in court, watch your mail for a new notice once the court is open and prepared to hear your case.  

The court has adopted a procedure for attorneys to make some progress toward resolving pending misdemeanor cases by phone and email correspondence.  If you or a loved one has questions about an open misdemeanor, call us to discuss your options.  

Felony Appearances

Typically, defendants in felony cases must be personally present for each hearing.  In an effort to reduce crowding inside the courthouses, though, judges are currently allowing attorneys to appear without their clients present in most felony matters.  

Restraining Orders

The quarantine has led to a spike in reports of domestic violence.  Our office has been busy processing restraining order petitions for the past several months.  

There are several different types of restraining orders under California law, depending on the relationship of the parties involved (domestic violence, civil harassment, elder abuse, workplace violence, etc.).  If the parties are (or were ever) married, dating, related, living together or co-parents of children together, any restraining order petition would probably be treated as a matter of "domestic violence".  In Orange County, all domestic violence restraining orders are filed and heard at the Lamoreaux Family Justice Center in Orange.  

As part of their ongoing efforts to reduce crowding and to enforce social distancing, the court recently began staggering their restraining order hearings throughout the day.  Rather than ordering everyone to appear at 8:30 AM and to wait together for their individual cases to be heard, litigants are now ordered to appear at a specific time slot that has been reserved for their particular case.  This new staggered schedule is much more time-efficient than the old system, where parties could spend all morning sitting around and waiting for the judge to call their matters.  

Before the pandemic, restraining order hearings would be scheduled within 21 days of the filing of the petition.  With the current backlog and staffing shortages inside the courts, though, hearings are being delayed for at least 6-8 weeks.  If you've been served with a temporary restraining order, this means that you might have to wait 2 months before you even have a chance to appear in court and to present your side of the story.  The temporary order will remain in effect during that time.  If you violate the temporary order, you can be arrested and charged criminally.  The penalties for violating a domestic violence restraining order can be severe, including the loss of your right to possess firearms for 10 years.  

Expungements

Even though Orange County courthouses are closed to the public, judges are still processing expungement petitions by mail.  If you're looking for a new job, or if you expect to apply for new jobs in the near future, this is a great time to clean up your old criminal record with an expungement.  

Many felonies have recently been downgraded to misdemeanors in California.  If you've ever been convicted of a qualifying offense, you might also be eligible to have that case retroactively reduced.  In some cases, a reduction from a felony to a misdemeanor may even restore gun rights.  

Catalina Island

If you follow this blog, you know that my office defends more cases on Catalina Island every year than any other private firm.  Only the public defender handles more Avalon cases than us.  Catalina Island is a unique place with its own set of court rules and procedures.  For attorneys who are unfamiliar with those procedures, fighting a case in Catalina can be bewildering.

Catalina was hit hard by the early days of the shut-down.  The island economy relies heavily on cruise ship traffic and weekend tourists who come to enjoy the bars and restaurants.  Unfortunately, no cruise ships have docked in Avalon since March.  Most of the smaller establishments on the island remain closed, but a few have adapted to outdoor seating and carry-out windows.  

As the late-summer heatwave has baked Southern California, weekend crowds have started to return to Catalina.  Migratory bluefin, yellowfin and yellow tail have also attracted anglers to the island this fall.  With the influx of tourists, the Sheriff reports more alcohol-related arrests.  The most commonly-cited violations on the island include "drunk in public" (PC 647(f)), DUI (VC 23152), assault / battery (PC 240 / 242), domestic violence (PC 243 / 273.5), and a variety of fishing offenses.  

Catalina is part of Los Angeles County.  Unlike their neighbors in OC, LA is currently hearing new misdemeanor cases.  If you or a loved one was cited while visiting Catalina, call us to discuss your options.  As always, we offer free attorney consultations.  (714) 449-3335.  Ask for John.  

Thanks for reading and stay healthy.  

Monday, August 10, 2020

Catalina Courthouse is Open for Operations

The Catalina Courthouse (City of Avalon, Los Angeles County) is open and hearing cases again after a months-long COVID closure.  

Before the shutdown, the tiny courthouse had been open on alternating Fridays.  Due to the backlog of pressing matters, though, the court will temporarily operate on a weekly basis as the staff works to catch up.  

It's been a slow summer for tourism on the island as bars were closed, cruises were cancelled and the ferries reduced services.  Crowds are finally starting to return as the weather heats up and the tuna make their way into warmer waters.  

The surging crowds have brought a surge in misdemeanor arrests and citations over the past couple weeks.  After a quiet summer, the Sheriff reports a recent spike in reports of domestic violence, "drunk in public", possession of controlled substances, disturbing the peace, driving under the influence (DUI) and assault / battery.  

The City Council of Avalon also recently approved a $100 fine for failure to wear a mask over the mouth and nose in places where individuals are likely to be in close contact with others.  

If you've been arrested or cited while visiting Catalina Island, a private attorney (like myself) can make all of your court appearances so that you don't have to.  In most cases, you are not required to personally attend each court hearing if you are represented by private counsel.  Fighting a misdemeanor charge usually necessitates several appearances and the cost of traveling back and forth to and from the island can be prohibitive for most people.  Don't make a series of trips if you don't have to.  Let an experienced professional collect the evidence, argue with the prosecutor and negotiate a fair deal on your behalf.  

Our office defends more cases on Catalina Island every year than any other private law firm.  We know the players and we know how the game is played in Avalon.  We have extensive experience defending against all types of charges that commonly arise on the island, from alcohol-related offenses to violent matters and even fishing violations.  

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

Thanks for reading.