New California Gun Laws for 2017

Between July's "Gunmageddon" and the passage of Prop. 63, California enacted a series of restrictive new gun laws this year.

Some new California gun laws to expect in 2017 include:

• A ban on the sale / transfer of common, center-fire, semiautomatic rifles with detachable magazines.  
• A new definition of "detachable magazine", to specifically prohibit the "bullet button".  
• A ban on the possession of any magazine that is capable of holding more than 10 rounds.
• The nation's first background check to purchase ammunition. 
• A ban on importation of ammo from out-of-state.
• A new requirement that homemade lower receivers ("ghost guns") be serialized and registered with the state.

The definition of "assault rifle" under California law was expanded to include any center-fire, semiautomatic rifle with a magazine that is not "fixed". If the magazine can be removed without disassembling the action of the firearm (pulling the rear take-down pin), it is now considered "detachable".  This effectively bans the bullet button.

If you own a rifle with detachable magazine or a bullet button before January 1, 2017, you may keep it, but you can't sell it, trade it or give it away after that date. If you die, your kids can't inherit it. You are the last person who will ever own it. You must also register your "assault rifle" with the Department of Justice before December 31, 2017. 

Starting July 1, 2017, civilians will be completely prohibited from possessing magazines with the capacity to hold more than 10 rounds. There is no "grandfather clause" for magazines that were owned or possessed before the prohibition. If you own them now, you're expected to turn them in, take them out of state, sell them to a licensed firearms dealer, or destroy them.

As of January 1, 2018, Ammunition buyers will be required to purchase a 4-year permit for $50.00 and undergo a background check. All ammunition sales will be electronically reported to the Department of Justice, and residents will be prohibited from bringing ammunition into California from out-of-state.

If you finish your own 80% receiver in your garage, you must register your "ghost gun" with the Department of Justice and have the part serialized.  Starting January 1, 2017, unfinished receivers will be regulated just like real firearms.  

There are still a lot of unanswered questions about how these new regulations will work in practice. We also expect some tooth-and-nail litigation before some of those questions are resolved. Stay tuned to see how this all plays out over the next year.

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

Thanks for reading.

Orange County Gun Lawyer  

Defending Against False Accusations in a Restraining Order

If you've been served with a restraining order, there's a good chance that the petition is full of lies. They always are. There's also a good chance that you're irate. That's understandable. I would be, too.

Being angry won't fix your problem, though. We have work to do, and that work must be done calmly, coolly, objectively and efficiently.

Of course, no simple, "one-size-fits-all" strategy is appropriate or effective in every restraining order case. It's always a good starting point to consult with a qualified local attorney. Part of being "calm, cool, objective and efficient" is understanding the law, analyzing the facts, and explaining concisely how those facts fit within the law to make your case. That's your attorney's job.

The petition against you probably contains a lot of accusations. Some of those accusations, if proven, could form the basis for a restraining order. These are things like violence, threats, and harassment. Your response should focus on denying, justifying or excusing those claims.

The petition might also include claims that would NOT form the basis for a restraining order. They're not relevant to the judge, even if they paint you in a negative light ("Respondent cheated on me with my sister, he has a bunch of DUIs, and he was emotionally controlling during our relationship", etc.). Do not waste your effort and the court's time by fixating on these types of claims. If the petitioner wants to waste his or her precious time by making irrelevant arguments, let them. Remember, though, the judge is not interested in determining whether or not you cheated during the relationship, who is responsible for your breakup, or whether or not you're a good guy. Those things are not grounds for a restraining order.

This is where a lot of litigants get off track. They get so emotional about defending their reputation or their pride that they lose sight of the actual issue that the court is trying to decide -- whether or not violence, threats or harassment has occurred. They focus too much time and effort in arguing over points that will not affect the judge's decision. I understand the impulse to do so, but you must resist that impulse.

The first step in preparing your defense, then, must be to divide the accusations into two categories: 1) accusations that could (potentially) form the basis for a restraining order if they are proven, and 2) accusations that are irrelevant, even if they sound embarrassing or salacious.

Once we determine which of the accusations could potentially form the basis for a restraining order (claims of violence, threats or harassment), then we can start forming a strategy to refute those accusations.

The most effective way to disprove false accusations is to drill down on each of them methodically and individually. Separate each false allegation and beat it to death with reliable, admissible evidence. Once you have effectively disproved one allegation, then you can move on to attack the next. Stay organized and focused in presenting your case as concisely as possible, without jumping from one point to another. For example, if you're accused of making repeated, harassing phone calls, bring a copy of your call log to prove that the calls didn't come from you. If you're accused of stalking someone on a particular occasion, bring an alibi witness to prove that you weren't in the area.

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

Thanks for reading.

Orange County Restraining Order Lawyer

How Will the Trump Administration Treat Legal Marijuana?

By now, we all know that marijuana is a Schedule I controlled substance under federal law. We also understand that federal law trumps state laws where the two conflict. The feds cannot compel the states to enforce federal drug laws, but they can use the FBI and the DEA to bust local growers and distributors, even if those growers / distributors are in full compliance with the laws of their respective states.

At last count, 8 states plus the District of Columbia have fully legalized recreational use of marijuana by adults, and something like 46 states allow some form of medical use. Voters in California overwhelmingly passed Prop 64 on November 8. That initiative will allow adults to cultivate up to 6 plants on private property and possess up to an ounce of flower in public. It will also create a comprehensive system of licensing and taxation to govern commercial sales. National polls consistently show that a majority of Americans support some form of legalization.

The Obama administration mostly took a hands-off approach to enforcement in states with permissive cannabis laws. President Obama personally opposed legalization, but he respected the will of voters in states that chose to permit adult use of marijuana for recreational or medical purposes. A new administration, though, could mean big changes for federal law enforcement priorities. 

On the campaign trail, Trump showed little concern with marijuana. He indicated support for states' rights, suggesting that he would allow individual states to enact their own policies without undue federal interference. Drug policy reformers were cautiously optimistic.

Since the election, though, President-elect Trump has sent some discouraging signals. Last week, he named Senator Jeff Sessions as his pick for Attorney General. As the head of the Justice Department, the AG is responsible for setting the policies and priorities for all federal prosecutors. For the legalization community, the appointment of Sen. Sessions represents a sky-is-falling, worst case scenario. The uber-conservative legislator from Alabama has been a lifelong anti-cannabis crusader. He famously said that "good people don't smoke marijuana", and he once joked that he supported the KKK until he learned that they smoke pot. 

Under AG Sessions, the Justice Department could begin an aggressive campaign to arrest and prosecute state-sanctioned growers and distributors. It could sue to shut down local programs that regulate and tax marijuana businesses and use the full force of federal law to drive cannabis back underground.  

Or the DoJ might follow the lead of President Trump and popular opinion polls. They could work to reform banking regulations so that more legitimate marijuana businesses can finally get a checking account. They might allow law-abiding marijuana users to purchase and possess firearms. They could reform federal tax laws to allow cannabusinesses to deduct their operating expenses so that they're not saddled with prohibitive tax bills. They might even reschedule marijuana to permit more scientific research.  

Right now, the future of marijuana in the United States is completely up in the air.  There are so many unanswered questions that nobody can accurately predict what the landscape will look like after January 20, 2017. If you're concerned about the future of legal cannabis under AG Sessions, call your senators and tell them to reject his appointment.

If you or a loved one has questions about Prop 64 and the future of legal marijuana in California, call our office for a free attorney consultation.  (714) 449-3335.  Ask for John.

Thanks for reading.

Fullerton Marijuana Lawyer

Do I Need a Lawyer to Get (or Fight) a Restraining Order?

Do you need shoes to run?  No, but they help.  The same is true for lawyers in restraining order cases.

I've handled more restraining order cases than I can count (on both sides -- representing petitioners and respondents). I've also sat in courtrooms and watched hearings for hours while I waited for my own cases to be called. You don't have to spend much time in restraining order court before you start to notice a pattern, though: litigants who show up with competent attorneys have a distinct advantage over their opponents.

Even lawyers hire other lawyers when they're involved in a restraining order cases. Representing yourself in court is almost always a bad idea. Abraham Lincoln famously said, "The attorney who represents himself has a fool for a client". Even if you knew how to remove an appendix, you wouldn't operate on yourself. Keep in mind that your opponent may be represented by a highly-trained, professional attorney. If you act as your own lawyer, you will be held to the same standards of competence.

A qualified, experienced attorney will understand the rules of evidence -- and the exceptions to those rules. For example, hearsay is inadmissible in some types of restraining order hearings. A trained attorney knows how and when to object to hearsay testimony. He or she also knows the many exceptions to the hearsay rules, and the arguments to support your position that some piece of hearsay should or should not be allowed.

Your lawyer will understand the legal issues that are relevant in your case and they can help predict the questions that the judge is likely to ask. This is crucial. I cannot understate the importance of focusing your arguments on the points that will actually affect the outcome in your case, and ignoring the irrelevant ones. The quickest way to derail your own case is to waste the court's time arguing over something that is just not at issue, no matter how important that point might be to you.

Your attorney knows how to issue subpoenas to compel witness testimony if necessary.  He or she knows how to effectively question and cross-examine witnesses who testify in court.  Your lawyer can also act as an intermediary to correspond with the opposing party and witnesses before the hearing.

Most importantly, your attorney can evaluate your case from a neutral position to identify its strengths and weaknesses. Regardless of what your friends and family are telling you, your case probably has some weaknesses -- every case does. Part of your lawyer's job is to help identify those weaknesses and to form a strategy for dealing with them effectively. It's your attorney's responsibility to "give it to you straight", not to tell you what you want to hear.

It's obviously smart to retain a qualified, local attorney if you can afford to do so. If you or a loved one has questions about restraining orders in California, call our office for a free attorney consultation.  (714) 449-3335. Ask for John.

Thanks for reading.

Orange County Restraining Order Attorney

Is it Child Abuse to Spank 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 degree of physical 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

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 against the petitioner. 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 whiny behavior annoys you.  
• The behavior would cause a reasonable person to suffer substantial emotional distress. It's necessary but 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, normal 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.  

Orange County Restraining Order Lawyer

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 

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

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

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

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

What We're Working on Now

I haven't been posting as frequently as I'd like recently because we've been busy crusading for justice.

Summer is usually a slow time of year for us. Vacation schedules mean that filing deputies at the DA's office aren't processing new cases, judges are out and prospective clients have less disposable income to invest in their own defense.  We're bucking the trend this year and keeping busy with a steady stream of great cases. Here's a summary of what we're working on now:

Restraining Orders

My year-long winning streak with restraining orders finally came to an end last month, but we're starting to string together some more "W"s.

Last week, I represented a woman in Chatsworth who had been served with a restraining order petition by her knucklehead ex-boyfriend. We beat that case and she left the courthouse with a restraining order against him.

She really did a great job of helping me prepare and making sure that I had the necessary documents to demonstrate that the petitioner was abusing the legal system. We put together a response that was clear, concise and easy for the judge to understand.  The hearing went quickly and my client emerged victorious because she followed my advice and presented herself in a very professional manner.

Yesterday, I represented a man who had been served with a restraining order by his own brother. The petitioner (the guy who was seeking the order against my client) came to court prepared with hundreds of pages of documents and photos, meticulously organized in 3-ring binders with color-coordinated tabs and everything. I was impressed with his organization. Unfortunately for him, he did not understand the rules of evidence and most of his exhibits were inadmissible at the hearing. This is why hiring a professional attorney will dramatically increase your chances of success.  We beat that case and my client avoided being slapped with an unnecessary restraining order.

Criminal Defense

This morning, we successfully petitioned the Downey Court to release my client from probation early in a DUI case.  He had been convicted before I represented him and his status on probation was having a severe financial impact for him.  He was demoted from a lucrative position at work and the demotion carried a $100K decrease is his yearly salary.  We showed the judge how my client was being disproportionately burdened by remaining on probation and why an early termination served the "interests of justice". The judge understood and agreed to release my client from probation prior to his scheduled termination date. Now he can get back to work earning good money and paying taxes to support the court system.

A client in San Bernardino had recently been falsely accused of committing serious sexual offenses against an underage girl.  I worked with police investigators and prosecutors to help them understand that the allegations were false and that the girl was merely seeking attention. The District Attorney declined to prosecute my client due to a lack of evidence.  In these types of cases, it is important to drive the investigation into a dead end before it builds momentum, snowballs out of control and destroys an innocent person's life.  I'm proud that we were able to mitigate the damage in this case.

We're still appearing regularly in the Catalina Courthouse.  More and more tourists are discovering Avalon and a few of them even get to see the inside of the Sheriff's holding cell. The most common incidents arising on Catalina include fishing violations, drunk in public and battery. We're also making special appearances on behalf of other attorneys who are unavailable to personally appear on the island. (Fun fact: Celebrity attorney Mark Geragos was arrested in Avalon and spent a night in jail during his honeymoon, nearly 30 years ago).

I'm currently working on a large-scale marijuana cultivation case, some DUIs, a handful of domestic violence matters, a few smaller-scale drug charges and a really interesting child abuse case. I can't discuss details until the cases are resolved, but check back for updates as they become available.

Medical Marijuana

We're continuing to work with medical marijuana dispensaries to form proper business entities and to ensure continued compliance with California's complicated regulatory structure. The laws are changing quickly and we're doing everything we can to help our clients operate in accordance with the rules.

I'm also contributing regular columns for thekindland.com, an online magazine devoted to marijuana culture. My pieces, entitled "Ask a Weed Lawyer", appear each Sunday. As the name suggests, I answer common questions about marijuana laws and I try to dispel some popular myths and misconceptions.  If you haven't done so already, follow the link and enter your email address to have daily issues delivered to your inbox completely free.

That's what we've been working on, in a nutshell.  If you or a loved one has questions about criminal defense, restraining orders or medical marijuana in Southern California, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.

Thanks for reading.

Orange County Criminal Defense Lawyer

What is the Best Evidence to Present at a Restraining Order Hearing?

In the old days, restraining order hearings typically involved one person's word against another's. The petitioner would testify that her ex-boyfriend threatened her. The respondent would deny that he ever made any threats, and the judge would try to determine which party was more credible.

Today, more and more restraining orders involve electronically recorded statements. These may include text messages, emails, voice mails and messages sent over social media. The judge doesn't have to weigh a witness's credibility based on some arbitrary guess anymore; he or she can simply read the messages or listen to the voice mail recordings to determine who is lying and what was said.

A single message can make or break your case. It often does. In my experience, judges are looking for that "smoking gun" that makes their job so much easier. On any given day, the court has a lot of cases to get through. They don't have the time or the patience to conduct long, drawn-out hearings. If the petitioner comes to court prepared with a copy of a text message from the respondent that clearly conveys a threat of violence, the judge can quickly grant the restraining order and move on to the next case.

The same is true for the respondent. If you've been served with a restraining order but you have messages from the petitioner in which the petitioner admits to filing the case for an improper purpose, you should be prepared to show those messages to the judge. If the petitioner has some message from you in which you make some statement that could be construed as a threat, you should be prepared to justify, explain or deny the accusation.

If you have a very valuable message that clearly proves your case, print it out, make a couple copies, and bring it to your court hearing. The judge will not look at your phone, and your phone cannot be filed as evidence. Do not alter or edit the message in any way. Make sure that the message is legible and organized into some format so that the judge can make sense of it.

The judge is not interested in reading your entire email history since the beginning of time. He or she wants the short version of the story. If you have some valuable message, make it the centerpiece of your argument. Do not bury your best evidence in a sea of worthless nonsense. Remember, you have a very limited amount of time to present your arguments. Do not waste that time presenting useless evidence.

You should also consult with an experienced expert to determine whether or not your message is really as valuable as you believe. My regular readers are tired of hearing this, but always remember the "name of the game" in restraining order hearings: keeping it relevant and being concise. That means making sure that your arguments actually go to the issue and help prove your point. The issue at your hearing is whether or not the respondent has committed violence against the petitioner, has threatened to commit violence against the petitioner, or has engaged in a course of conduct against the petitioner that serves no lawful purpose except to annoy or harass the petitioner. The judge does not care if you're a good person, or if the opposing party is a bad person, or if you've done nice things for them in the past, or if they've done mean things to you in the past. The judge is not interested in determining who was at fault for your breakup or who drinks too much. Those arguments are a waste of your time and the judge's patience.

If you have questions about restraining orders in California, call us for a free attorney consultation.  (714) 449-3335.  Ask for John. We have extensive experience litigating all types of restraining order cases, including cases based on domestic violence, civil harassment, workplace violence and elder abuse.

Thanks for reading.

Orange County Restraining Order Lawyer

What Counts as "Stalking" in California?

"Stalking" is one of those legal terms that seems to be misused more often than it's used correctly. I see litigants throw it around loosely to describe any behavior that involves "following", "confronting" or "encountering by chance in a public place" if that behavior makes them feel uncomfortable.

The legal definition of "stalking", though, is a little more narrow. Section 646.9 of the California Penal Code spells out the elements and the intent that must be proven before a person can be found guilty of the crime of stalking. Here's the short version:

• "Stalking" involves repeated following or harassing behavior. 
• The following or harassing must be "willful" and "malicious". 
• AND, the person doing the following must make a credible threat with the intent to place the victim in reasonable fear for his or her safety.  

The crime of "stalking", then, involves more than merely following, researching, investigating or performing surveillance a victim. Those behaviors may cross the line into "stalking" if the prosecutor can prove that the defendant threatened the victim with the intent to cause fear.  

One element that is NOT included within the legal definition of "stalking" is that the crime be committed in person. We think of "stalking" as physically following somebody or parking in front of their house, but the crime of stalking may be completed online or even through the mail. If you send repeated, harassing messages and threats over social media with the intent to cause fear, you may be convicted of stalking in California. You can be tried in California if the target of your harassment lives here, even if you live out of state.  

Even if your behavior does not technically rise to the level of criminal "stalking", you may still be charged and convicted for some "lesser included offense", like making criminal threats (PC 422), annoying / harassing a minor (PC 647.6), or making repeated phone calls with the intent to harass (PC 647m). That behavior could also form the basis for a restraining order against you if a court finds that it meets the legal definition of "harassment".

There are many possible defenses to charges of stalking, but only a qualified attorney can help you determine the best argument for your particular case. If you or a loved one has questions about stalking in California, call our office for a free attorney consultation. (714) 449-3335. Ask for John.  

Thanks for reading. 

Orange County Stalking Lawyer

Some Pervasive Myths & Misconceptions Over Medical Marijuana in CA

I've written about a few of these misconceptions on this blog in the past.  These rumors are just so pervasive that I wanted to take another opportunity to set the legal record straight.

If you care enough about the law and the facts to educate yourself on this complicated subject, please read on.  If you prefer to remain willfully ignorant by disregarding information that offends your agenda, then crawl back into your hole now.  It's nice and warm in there.

Every day, I work with dispensary operators, growers, patients, investors and, unfortunately, some people who have been arrested and accused of violating California's byzantine marijuana laws. I hear the same questions constantly. A lot of my clients have gotten themselves into serious trouble by failing to adequately understand the rules, or by following terrible legal advice that they've heard through the rumor mill. Stop listening to your idiot friends. That's the first bit of free advice.

This is a collection of the most common myths and misconceptions that I hear daily regarding medical marijuana in California.

Myth #1: Marijuana is Still Illegal Federally, So Cities May Not Allow Dispensaries to Operate

The first half of that sentence is correct, but the conclusion is not.  Marijuana is illegal federally. And federal law trumps state law. If state or local laws directly conflict with federal laws in some legal dispute, the federal law will (usually) prevail. If the DEA sued the state of Colorado to block implementation of its recreational marijuana laws, for example, the DEA would (probably) win.

But that's not what anybody is talking about here. The feds have not taken any legal action to block state implementation of lenient weed laws. In fact, Obama has taken the opposite approach. He has directed the Attorney General not to aggressively pursue federal legal actions against individuals who comply with the marijuana laws of their respective states. The Justice Department has, in turn, ordered all US Attorneys to make efficient use of their limited resources and not to prioritize these types of cases.

The Rohrabacher-Farr Amendment to the Omnibus Spending Bill also prohibits the federal government from expending any resources to interfere with state-sanctioned medical marijuana programs.

While federal laws trump local ordinances, the US Constitution does not require states and municipalities to actually enforce federal laws.  If the DEA wants to shut down Santa Ana's licensed medical marijuana dispensaries, let them spend their own resources to try. The city of Santa Ana has no obligation to do so.

Myth #2: Storefront Dispensaries are Actually Illegal in CA

False. This was a gray area a few years ago, but the law is settled now. Storefront dispensaries are allowed.

The Medical Marijuana Program Act, AKA "SB 420", AKA HS 11362.7 et seq. expressly allows qualified patients to collectively cultivate marijuana and to buy / sell / trade it among patient members of a cooperative, collective, or dispensary.

Section 11362.768 of the California Health & Safety Code further dictates how and where dispensaries may operate (not within 600 feet of a school, etc.). It's clear from a plain reading of the text and from the case law that the authors intended to allow brick-and-mortar storefronts to distribute medical marijuana.

Cities may impose more restrictive zoning / land use regulations to govern locations of dispensaries and hours of operation. They may even impose blanket bans on commercial medical marijuana activity. To claim that all storefront dispensaries are illegal in California is just plain false, though.

Myth #3:  Your Doctor Has the Authority to Issue a "Cultivation Permit" That Will Legally Allow You to Grow Up to 99 Plants

Not quite. Your doctor may recommend the therapeutic use of marijuana to treat some medical condition. If you have a medical marijuana recommendation from a doctor, then you may cultivate and possess as much cannabis as your doctor says that you reasonably need to treat your condition.

That amount may not be "excessive", but there is no clearly defined criteria to calculate how many plants are excessive for a particular person. A patient who cultivates outdoors might harvest one crop per year. If that patient cooks the cannabis into edibles, he or she might consume much more than the average smoker. If the patient also has a high tolerance, then a relatively large number of plants might not be considered "excessive".

The law imposes some arbitrary limits on the numbers of plants that a patient may possess (6 mature / 12 immature), but those strictly-defined limits have been overturned by the courts.

You do not need special permission from your doctor to cultivate for your personal use if you hold a valid medical marijuana recommendation. Your recommendation is already a defense to a variety of marijuana-related crimes, including cultivation for personal use.

Your doctor may not grant you a "permit" to cultivate for sale or to distribute marijuana in any way. He or she may, however, form some professional opinion regarding how much cannabis you "need" to treat your condition. Some doctors charge an extra fee to "form the opinion" that your medical condition requires you to consume (and cultivate) a huge amount of weed. For the right price, your doctor might be "convinced" that you "need" 99 plants for your personal use. Good luck convincing a judge.

Myth #4:  Dispensaries are "Just in it for the money"

Isn't that true for any business?  Do you think your roofer loves hot tar? Or do you think "he's only in the roofing business for the money"?

If you're looking for a legal way to get rich quick, I would not recommend opening a medical marijuana dispensary. That's because dispensaries are legally prohibited from operating for profit. Operators may draw a salary and they may pay their employees, but those salaries must actually correlate to the fair market value of the labor performed.

The dispensary must be organized as a collective, a consumer cooperative, an unincorporated nonprofit association, or a nonprofit mutual benefit corporation.  However the club organizes itself, it must be operated for the benefit of its patient members. If the club has more money at the end of the day than it started with, it is doing something wrong (and illegal).

I'll save a few more of my favorite myths and misconceptions for another day.  Check back often for more valuable and up-to-date legal information about medical marijuana in California.

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

Orange County Marijuana Attorney

How NOT to Fight a Restraining Order in California

Earlier this week, I wrote a post about some specific strategies that I've successfully used to defend against restraining orders in California. I've previously published several posts explaining the legal procedures that are involved in restraining order hearings. If you haven't already done so, start by studying my old posts.  They'll give you a good understanding of what to expect, how to prepare and what to say when you're standing in front of the judge.

Today, I want to discuss a few bad strategies -- what NOT to do at your big court date.  These tips are all based on restraining order proceedings that I've personally observed in my career.  You can guess how they turned out.

If you make these arguments in front of a judge, you will sabotage your own case.  You'll probably get laughed at.  You'll definitely lose, and then you'll wish you had taken my advice.  Don't be a loser.  Read this post carefully, then call my office for a free consultation.

Bad Advice #1:  Waste the Judge's Time With Irrelevant Arguments

Remember, the #1 rule at restraining order hearings is to STAY ON POINT.  If you're responding to a restraining order petition (someone has filed a restraining order against you), the ONLY ISSUE that the judge cares about is whether or not you have engaged in some conduct that could form the basis for the issuance of a restraining order.  That conduct may include actual violence, threats of violence, or some course of conduct that serves no lawful purpose except to annoy or harass the petitioner.  You must focus 100% of your energy and attention to proving that the alleged harassment did not occur.

The judge does not care if you're a good person, or if the petitioner is a bad person, or if you've done nice things for the petitioner, or if the petitioner has lied about something unrelated in the past, or if the petitioner is promiscuous, or if the petitioner stole money from you once or if the petitioner is an alcoholic.  The judge is not interested in determining who was responsible for your breakup.  All of that stuff might be important to you, but it is completely irrelevant to the one question on the judge's mind: have you harassed the petitioner?

If you're talking about anything in the world other than justifying, explaining or denying the accusations against you, you're wasting the judge's time with irrelevant arguments.  Knock it off.

Bad Advice #2:  Ignore the Accusations That the Petitioner is Making Against You.  Instead, Just Attack the Petitioner's Character

This goes back to my first point.  If you're discussing anything other than the accusations against you, you are off topic.

When you're accused of harassing the petitioner, it is not helpful to argue that the petitioner is a terrible person.  Those arguments are irrelevant because you're still not allowed to harass terrible people.

If you can prove that the petitioner is lying about something on the petition, then focus your attention on proving that the specific accusations against you are untrue.  The judge will not allow you to introduce evidence that the petitioner has lied about something unrelated on another occasion, though.  A 5-minute hearing would take 2 weeks if the judge allowed both sides to present evidence of every dishonest act that their opponent has ever committed since the beginning of time.

Here's an example that I see very often in restraining order hearings:

Petitioner:  Your honor, my ex-boyfriend was abusive toward me during our relationship.  Since we broke up, he has been showing up at my house and my workplace unannounced.  He has also been sending threatening messages to me and to my kids.

Respondent:  Your honor, the petitioner has 2 DUI convictions.  She stole my checkbook one time and she cheated on me during the relationship.  She cheated on her last boyfriend, too.  I helped pay for her kid's private school and I made her car payments for 3 months.  She never even said "thank you".

Judge:  I've heard testimony from the petitioner that the respondent committed acts of violence, threats, and harassment against her.  Having had an opportunity to deny or explain the allegations, the respondent has failed to do so.  Since the respondent has not denied the accusations, I will find that they are true by a preponderance of the evidence.  The restraining order is granted and shall remain in the effect for a period of 5 years.  Next!

Bad Advice #3:  Continue Harassing the Petitioner While the Case is Pending

I understand that you're angry and frustrated about the restraining order that your ex has filed against you.  Those feelings are natural.  For many people, the first thought is retribution.  You want to punish your lying, ungrateful ex-girlfriend for making all these ridiculous accusations.

You must resist the urge to retaliate.  Your revenge will be beating the order and walking out of court with a smile on your face.

Do not file frivolous legal claims against the petitioner before your court date.  Do not post angry or defamatory messages online.  Do not contact the petitioner's friends and family.  If the petitioner is trying to provoke you, don't take the bait.  Basically, don't do anything to make yourself look crazy before your hearing.

If the judge finds that you made some mistakes in the past, but you've moved on and harassment is unlikely to occur in the future, then you have a good chance at beating the restraining order.  If, on the other hand, you've demonstrated that you have some serious emotional issues, you have a tendency to engage in compulsive behavior and you're consumed by anger at your ex, then you will lose.

Keep it cool.  Be the mature one and show the judge that this restraining order against you is unnecessary.

Bad Advice #4:  Show Up Unprepared 

If you have witnesses who will corroborate your alibi, bring them with you.  If you have documents or photos that you want the judge to consider, print them out and organize them before you come to court. All of your proposed exhibits should be in paper form so that they can be stored and cataloged in the court's files.

Study my previous posts about restraining orders.  Take some quality time to understand the law, the rules of court and the issues that will be presented.  Make some notes to organize your thoughts. Restraining order hearings go quickly and you will be nervous when you're on the spot.  If your thoughts are scattered, the judge will have a hard time following your good arguments.

Try to predict the arguments that your opponent will present and prepare for those issues in advance. You cannot simply gloss over the bad facts; you must confront them with valid, rational, legal defenses.

Look respectable.  If you have a suit, wear it.  If you don't own a suit, at least put on a tie.  If you don't own a tie, at least wear long pants, closed-toe shoes and a collared shirt.  If you don't own those things, then you probably have bigger problems.  Stop reading now and go buy some decent clothes.

Bad Advice #5:  Take Legal Tips From Your Non-Lawyer Friends and Family

It doesn't matter if your mom thinks you have a great legal argument.  Your mom isn't going to be your judge, so she's not the one we need to convince.

It's your friends' job to be supportive and to tell you what you want to hear.  It's your lawyer's job to give it to you straight.  Your lawyer understands the law and the rules of evidence.  Your friends don't.

It drives me nuts when a client calls me and says, "I know you told me to stay away from my ex-girlfriend's apartment, but my mom thought it would a good idea for me to go try to talk to her one last time."  I also get a lot of this one: "I know you said that it was irrelevant, but all my friends think the judge really needs to know that my ex-girlfriend is crazy."  Stop listening to your friends.  They're trying to help, but they're not helping.

Here's some good advice:  if you've been served with a restraining order in California, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.  We handle all types of restraining orders in all Southern California courts.

Thanks for reading.

California Restraining Order Lawyer

What Kinds of Knives are Legal to Carry in California?

Everybody knows that California has some of the most complicated, restrictive gun laws in the country. Our knife laws are slightly less complicated, but still pretty asinine.  I'm always amazed at how many police officers, prosecutors and judges don't understand these.  By the time you finish reading this, you'll be an expert.

Here's a quick overview of the rules regarding knives in California.

Folding vs. Fixed Blade

California law distinguishes between fixed-blade knives and folding knives. If the knife folds, it may generally be carried concealed, as long as the blade is not extended and locked into place while concealed.  If you can fold it, you can hold it.

If a blade is fixed, the knife is considered a "dirk or dagger". In fact, any non-folding weapon that is capable of inflicting injury by stabbing is considered a "dirk or dagger", even if the object itself is not technically a "knife" (a hay hook, a sharpened toothbrush, etc.).

Dirks / daggers are legal to own, possess and carry, but they may not be concealed upon your person.  A knife is not considered "concealed" if it is worn openly in a sheath suspended from a belt.  A knife is also not considered "concealed" if it is carried within the passenger area of a car.  It is perfectly legal to keep a knife hidden in your car in California, as long as it's not "on your person".

In short: you may carry a folding knife in your pocket as long as the blade is closed.  If you want to carry a fixed-blade knife or any other stabbing weapon on your person, it must be visible and worn in a sheath attached to your belt.

Size Limits on Knives

There is no statewide size restriction on knives under California law, but some cities may have more restrictive local ordinances.  The City of Los Angeles, for instance, prohibits any person from carrying a knife in plain view.  The law includes any knife with a blade of three or more inches in length, any switchblade, and any other sharp stabbing tool affixed to a handle, regardless of length.  The Los Angeles law does not prohibit the concealed possession of folding knives in public, only their display in plain view. The precise definition of "in plain view" is probably up for debate.

Check your local municipal code to determine whether or not your town imposes restrictions on knives that are more stringent than the statewide law.

Prohibited Knives

California prohibits the possession of any weapon that is disguised or not immediately recognizable as a weapon.  This includes knives that are hidden inside hairbrushes, lipstick tubes, writing pens, air gauges, belt buckles, canes, etc.

Californians may own switchblade knives in their homes, but they may not carry switchblades in public or in the passenger area of any car.  They also may not transfer them to any other person.  The same rule applies for gravity knives and butterfly knives, AKA "balisongs", AKA "batangas".

What Counts as a "Switchblade"?

Until a few years ago, there was a real debate among criminal defense attorneys, prosecutors and judges over what actually constituted a "switchblade" knife. The way the law was previously written, it seemed to prohibit public possession of common "assisted openers". Assisted openers are pocket knives with spring-loaded blades that pop fully open once the user starts the process and overcomes some initial resistance. There is no button or release lever, just a thumb stud on the front or on the side of the blade. Assisted openers are a hugely popular "everyday carry" option for many people because of their ease and convenience, especially when working with one hand (on a ladder, for instance).

To clarify all the confusion regarding what did and didn't qualify as a "switchblade" in California, the legislature revamped section 17235 of the Penal Code by adding one sentence to the law. The addition, in italics, was intended to clarify that assisted openers ARE legal to carry in the State of California. Today, that code section reads as follows:

"A 'switchblade knife' means a knife having the appearance of a pocketknife and includes a
spring-blade knife, snap-blade knife, gravity knife, or any other similar type knife, the blade or blades of which are two or more inches in length and which can be released automatically by a flick of a button, pressure on the handle, flip of the wrist or other mechanical device, or is released by the weight of the blade or by any type of mechanism whatsoever. 'Switchblade knife' does not include a knife that opens with one hand utilizing thumb pressure applied solely to the blade of the knife or a thumb stud attached to the blade, provided that the knife has a detent or other mechanism that provides resistance that must be overcome in opening the blade, or that biases the blade back toward its closed position."

What Counts as a "Butterfly Knife"?

There's a lot of argument about what technically constitutes a "butterfly" knife (or "gravity knife", balisong, etc.).  The legal definition includes any knife with a blade over 2 inches that is capable of being released by a flick of the wrist or by the weight of the blade.  If your folding knife snaps open with a flick of the wrist, or if the blade falls open under it's own weight, then it is illegal to carry in public.


Many law-abiding people are carrying pocket knifes that can be flicked open if the user's wrist is strong and fast enough.  Old pocket knives get loose and fall open.  An aggressive police officer might argue that these are illegal knives.

If you or a loved one have questions regarding knives or other weapons in California, call our office for a free attorney consultation. (714) 449-3335. Ask for John. We have extensive experience in defending against all types of criminal and weapons-related charges. 

Thanks for reading.

Orange County Weapons Lawyer

Successful Strategies to Defeat a Restraining Order in California

If you've recently been served with a restraining order in California, your head is probably spinning. I've previously written on this blog about the process of seeking or fighting a restraining order. Those posts are available here, here and here.  If you haven't read those already, take a moment to educate yourself on the nuts & bolts of the restraining order process.  Those posts include some helpful tips that you can use to prepare for your big day in court.  If you take the time to wrap your head around that information, then you will have a huge advantage when you stand in front of the judge.

Today, I want to specifically discuss a few different strategies that I have successfully used to defend against restraining orders.  I can't tell you which of these options is best for you and your case.  Of course, every case is unique.  The most advisable strategy will necessarily depend on the facts and circumstances of your situation.

The smartest place to start is with a qualified, local attorney.  He or she can evaluate your case from a neutral, detached perspective to help determine the most advisable course of action.  An experienced professional should understand the rules of evidence and the legal procedures that will be involved in your case. As you're preparing for your court hearing, be aware that your emotions will cloud your judgement. If you're angry, frustrated, embarrassed and confused, you will have a hard time weighing your own case fairly and objectively -- the way that the judge will see it.  Your lawyer can sort through the unique facts of your situation to formulate a winning strategy.

Factual Innocence

The best legal defense in any restraining order case is "factual innocence" -- you really didn't do whatever you're accused of doing. Proving factual innocence should always be the priority of your defense team. Of course, proving a negative can be difficult or impossible.

A common way to prove factual innocence is to provide an alibi -- proof that you were somewhere else at the time that the abuse or harassment occurred. An alibi can be proven with credit card statements, witnesses, plane tickets, phone records, etc. Bring those things to court and make sure that they're in some form that can be organized and stored in the judge's files. If you have text messages, photos or other documents on your phone, print them out before appearing.

Justification

A "justification" is a legal defense in which the respondent admits that he committed the act for which he is accused, but he is able to demonstrate that his conduct was "rightful" under the circumstances. The respondent must convincingly show that, due to circumstances beyond his control, he actually did a good thing, or that he prevented some greater harm by engaging in conduct that might otherwise be illegal or that might form the grounds for the issuance of a restraining order.

The classic example of a "justification" is self-defense. Petitioner alleges that Respondent punched him in the face and broke his front teeth. Normally, punching and injuring a man would be grounds for the issuance of a restraining order. Respondent admits that he punched Petitioner, but he is able to prove that Petitioner attacked him. Respondent is further able to prove that he did nothing to provoke the attack, that he had no other options to defend himself, and that he only used the degree of force that was necessary to repel Petitioner's assault. Here, Respondent's act of punching Petitioner was "rightful" under the circumstances. The restraining order should be denied.

Excuse

An "excuse" is a legal defense that negates the "wrongness" of some conduct, but stops short of actually "justifying" that conduct. When an act is excused, we don't say that the accused individual did a good thing, only that the accused does not deserve to be punished for what he did.

An example of a legal excuse might be sleepwalking. Just like the above example, let's say that Petitioner accuses Respondent of punching him in the face and breaking his front teeth. Respondent admits that he punched Petitioner, but he maintains that he was sleepwalking and that the act was involuntary. Respondent can prove that he has a documented history of sleepwalking and other facts support his defense. Since the act of punching Petitioner was unknowing and involuntary, the restraining order should be denied.

Sleepwalking is obviously a rare and risky defense to attempt, but I used it to demonstrate one example of a legal "excuse" in practice. Other legal excuses include:

• Adequate provocation: "Yeah, I punched him, but he was trying to piss me off and he succeeded". This is the legal equivalent of arguing that "he was asking for it, therefore he constructively consented to my punch". It doesn't make the violent act OK, but it removes some of the blame that we might normally assign to the respondent. 

• Involuntary intoxication: "I accepted a drink from a stranger at a bar. I believed that the drink contained only cranberry juice. The next thing I knew, I was taking off my clothes and throwing swings at everybody in sight." If the accused can prove that he was drugged and that he became intoxicated involuntarily, then he might be less responsible for conduct that is directly attributable to that intoxication. Keep in mind that this defense does not apply if the accused knowingly consumed drugs or alcohol.  

Denial

No matter what type of restraining order you're facing, the petitioner always bears the burden of proof. A tie goes to the respondent. If the petitioner fails to prove his or her case, then the respondent wins.

In restraining orders based on allegations of civil harassment or workplace violence, the petitioner must prove his or her case "by clear and convincing evidence". This is high burden. If the evidence is unclear or unconvincing, then the respondent wins.

In restraining orders based on allegations of domestic violence, the petitioner must prove his or her case by "reasonable proof". This a lower burden than "clear and convincing evidence", but it still requires the petitioner to convince a judge that the alleged violence or harassment occurred.

When the evidence is weak or non-existent, the respondent may prevail by simply denying the allegations. As I mentioned above, you should speak with an experienced, local attorney to determine whether or not denial is an advisable strategy in your case. The rules of evidence are complicated and it may be difficult to accurately, objectively evaluate the strength of the evidence in your own case.

If you've been served with a restraining order, call us for a free attorney consultation.  (714) 449-3335. Ask for John. Thanks for reading.

Orange County Restraining Order Lawyer

Catalina Island Court: A Nightmare in Paradise

I was back in court on Catalina Island this past Friday, May 13.

If I've learned anything from my experiences in Catalina court, it's to expect the unexpected. It doesn't take much to gum up the works at the Catalina courthouse. Delays and complications are part of the routine.

The Catalina Courthouse, nestled in the beachside community of Avalon, is only open on alternating Fridays. The judge, prosecutor, clerk and court reporter commute by helicopter from San Pedro when the court is in session. The slightest inclement weather, however, often means that the helicopters can't fly. When that happens, cases may be postponed until the court's next available date. And since the courthouse is only open every other Friday, the next available court date might be weeks or even months away.

I usually take the Catalina Express ferry to and from the island, but it's not much more reliable than the helicopter. I've been stranded on the island for days because boats couldn't cross the channel due to high winds, rough seas, or debris in the Long Beach Harbor.

Even when the weather cooperates, the human element is an unpredictable variable. I've had cases continued (routinely) because the DA or the court staff forgot to bring a file or some important paperwork from the mainland. It's all part of the experience when you go to court in Avalon.

This week, the culprit was fog. The helicopter was grounded due to poor visibility, so the court staff was stranded in San Pedro. The courtroom in Catalina was full of attorneys and defendants with cases on calendar, but nothing happens in court until the judge shows up. So we waited. And waited. And waited a little longer for the marine layer to burn off.

The court staff appeared around 11:45. The good news is that we were able to hear our cases without unnecessary continuances. The bad news is that everybody in court missed the boat that was supposed to take us back to the mainland at 12:15.

The next boat on the day's schedule left at 3:30, so we had a few hours to kill. I made myself comfortable at the Marlin Club. There are worse places to be stranded for a day.

There are plenty of great activities to enjoy on Catalina Island, but going to court is not one of them. If you're arrested or cited on Catalina, hire a local attorney to make your court appearances so you don't have to. I can save you the time, hassle and expense of experiencing this adventure for yourself. I appear in Catalina regularly, and I even make appearances for other attorneys who are unavailable to make the trip.

If you have questions about appearing in court at the Catalina courthouse, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.  Thanks for reading.

Catalina Island Lawyer

Is Hearsay Evidence Admissible in Restraining Order Hearings?

The answer in California is, "sometimes".

To understand how it all works, you have to first understand the legal definition of "hearsay".  Hearsay is any out-of-court statement, when the statement is offered for the truth of the matter asserted (Bill testifies, "Ted told me the red car ran the light", as proof that the red car ran the light).  Hearsay also includes signed affidavits from witnesses who are not present in court to answer questions about their statements.

Hearsay evidence is considered unreliable for obvious reasons.  Generally, it is inadmissible in court unless some exception applies, and there are lots of exceptions.

Civil harassment restraining order cases are one such exception to the general rule that says hearsay is inadmissible.  The law describing civil harassment restraining orders in California specifically says that, at the time of the hearing, "the judge shall consider any testimony which is relevant".  Courts have interpreted this rule as allowing the admission of hearsay evidence in civil harassment restraining order hearings as long as that testimony is relevant (that it generally relates to the facts at issue).

And since the laws regarding workplace violence restraining orders basically mimic the language that governs civil harassment hearings, courts have also determined that hearsay evidence is admissible in workplace violence proceedings.

Domestic violence restraining orders are treated a little differently because they are governed by the Family Code rather than the Code of Civil Procedure.  The language in that code does not include the specific instruction that judges must receive all relevant evidence.  Since no hearsay exception applies in domestic violence restraining order cases, the usual rules of evidence apply and hearsay is excluded.

Even when hearsay is admissible, it is almost always advantageous to bring live witnesses to court rather than signed affidavits.  The judge may have questions and the witness may be needed in case unexpected issues arise.

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

Orange County Restraining Order Lawyer

What's New in California Gun Laws?

AB-2459

This proposed bill would require all gun dealers in California to install extensive surveillance systems and to maintain all video footage on site for a number of years.  It would prohibit licensed firearms dealers from operating out of their homes and would reaffirm the right of local municipalities to impose more stringent requirements on gun dealers.

The measure is working its way though the Assembly committee process.  It was watered down a little in the Committee on Public Safety last week.  Now it's headed back to the Committee on Privacy & Consumer Protection.

A previous version of the proposal would have required complete video surveillance of the interior and exterior of any licensed gun shop, including the parking lot and areas where inventory is stored, displayed or handled.  It also would have mandated that the store owner maintain all footage on site for a period of 5 years.

As amended, the latest version of the proposed law would only require gun dealers to record transactions.  The video footage must be in color and of sufficient definition to record the facial features of all buyers.  The bill's author dropped provisions that would have mandated surveillance of the exterior and areas of the shop where inventory is stored.  The period of time for which store owners would be responsible for maintaining the footage was also reduced from 5 years to 3 after the most recent amendments.

The stated purpose of the law is to discourage "straw purchases", where a buyer purchases a firearm on behalf of someone else who would be precluded from purchasing the weapon himself or herself.  The actual, intended purpose of the law is to drive California gun dealers out of business by imposing more expensive, onerous regulations.  Straw purchases are a serious problem because they contribute to weapons falling into the hands of dangerous criminals and mentally ill individuals. California already has a robust system in place, however, to track firearms back to their original purchaser if the gun later ends up in the possession of a prohibited person.  All gun buyers in California are already required to present a valid, government-issued photo ID, 2 "proof of residence" documents, and a thumb print.  The gun dealer must make photocopies of these documents and maintain them on file, along with the serial number and a description of the weapon sold. It is not clear to me how video surveillance would be of any real use in identifying an illegal buyer if the dealer already has that person's ID, home address and thumb print on file.  A government-issued photo ID with a thumb print is a much more reliable means of identification than any grainy video surveillance footage.

Current Status of Peruta v. San Diego

This is the case that turned California's CCW licensing scheme on it's head.  It's not really news, but I figured it was time to check in on its current status as this legal dispute slowly navigates our federal court system.

Here's a little background:  Prior to 2014, San Diego County, in accordance with state law, required concealed weapons permit applicants to demonstrate some "good cause" for the issuance of the license.  A permit would be denied unless the applicant could prove that he or she was at a greater risk of harm than the general population. Simply citing the need for self-defense was not sufficient to warrant the issuance of a concealed weapon license.

Mr. Peruta passed the necessary background checks but was denied a concealed firearms permit because he could not demonstrate any specific "good cause" to carry a weapon, beyond self-defense.  His attorneys argued that the state's CCW policy was overly restrictive because it effectively prohibited law-abiding adults from exercising their 2nd Amendment rights in public.  The Federal District Court in San Diego agreed.

Once the law was ruled unconstitutional in the District Court, some local sheriffs around the state immediately began issuing concealed weapons permits, under a relaxed standard, to any applicant who could demonstrate good moral character.

The 9th Circuit Court of Appeals has now taken up the matter and vacated all lower court rulings. Oral arguments were presented in June, 2015, but the court has not published its opinion yet.  An announcement could come at any time -- tomorrow, next month, next year -- your guess is as good as mine.

Until the court provides some guidance, we're left in a sort of legal purgatory.  The issue hasn't been resolved. Once the appellate court makes its ruling, it's a safe bet that the case will eventually make its way to the US Supreme Court.  Things are likely to get even muddier before we see any clarity.  Check back often for updates as they become available.

Updated 6/23/16:  The 9th Circuit delivered its ruling last week.  Judges found that the 2nd Amendment does not guarantee the right to carry concealed weapons outside of the home. Therefore, California's heightened standard for issuance of CCW permits does not unduly infringe upon the right to bear arms.  

AB-1663 & AB-1664

These two proposed laws would effectively ban the "bullet button" in CA.  I've written about them previously, here.

Both measures are currently working their way through the committee process in the State Assembly. They were approved by the Public Safety Committee on March 1, 2016 by votes of 5-2. Now they're awaiting further hearings with the Appropriations Committee. Democrats outnumber Republicans 12-5 on that panel, so their recommendation may be a foregone conclusion.

If the bills are eventually approved by the legislature, there's a good chance that they'll face a veto once they reach the governor's desk.  Jerry Brown rejected a similar proposal in 2012, noting that the measure would likely have no impact on crime and that it would impose an undue burden on lawful sportsmen in California.


8,500 CCW Permits in Orange County, 0 Incidents of Misuse

Orange County Sheriff Sandra Hutchins was among the group of county sheriffs who issued CCW permits under the relaxed standard, following the Peruta decision in San Diego. Currently, 8,500 OC residents hold licenses to carry concealed firearms.

According to an article published in the Orange County Register on 4/6/16, there have been exactly 0 reported incidents of CCW license holders misusing their weapons in Orange County.  Of the 8,500 people who carry concealed weapons daily, not a single one has pulled out his / her piece in a road rage incident or bowling dispute ("Mark it '0'! He was over the line!").


Lt. Gov. Gavin Newsom Backs Gun Control Ballot Measure

Lt. Gov. Newsom and a coalition of gun control groups claim to have collected enough signatures to qualify their proposal for the November ballot.

The initiative would outlaw the possession of high-capacity magazines and would require background checks to purchase ammunition.

California already prohibits the manufacture, importation and sales of high-capacity magazines. Gun owners who lawfully possessed the magazines before the ban, however, are currently allowed to keep them.  Newsom's proposed law would require gun owners to surrender their high-capacity magazines to police, sell them to a licensed dealer, or take them out of the state.

Since high-capacity magazines are widely available for purchase in all neighboring states (and since criminals are generally willing to break the law), prohibiting the possession of high-capacity magazines is likely to have zero actual impact on violent crime in California.

And since ammunition can easily be manufactured at home, imposing burdensome restrictions on the sale and purchase of ammo is likely to encourage more shooters to handload their own rounds in the garage.  No other state currently requires background checks to purchase ammo.

The whole initiative reeks of an opportunistic career politician, desperate for media attention in an election year.  Imposing more complicated restrictions on law-abiding gun owners is unlikely to have any appreciable effect on crime.  As previously noted, all of the items described in Gavin Newsom's proposed law are widely available for purchase in every state that borders California. Since criminals are generally undeterred by pesky things like "laws", they will continue to acquire and import those items at will.  News flash: felons are already prohibited from possessing firearms and ammunition in California.  This law will not prevent bad guys from gaining access to guns.  It will, however, make shooting sports more expensive and inconvenient for the rest of us.

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

Orange County Gun Lawyer