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

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

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

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

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

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

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

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

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

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

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

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

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

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

What if police took firearms that were NOT registered to me?

To receive your firearms back from the police, you must prove that you are the registered owner of those weapons.  If you are NOT the registered owner, there's a few more steps involved.

This problem usually arises when police seize your dad's guns because your dad was not legally permitted to possess them.  Maybe those guns have been in the family for generations, they have sentimental value, and you expected to inherit them.  Now they're in an evidence locker and you want to take possession of them so that they aren't melted down.

In that case, the registered owner (your dad) may be able to have those firearms released from the police to the possession of a licensed firearms dealer.  If you are legally eligible to possess guns, then the dealer can transfer them to you for a nominal fee.  This may require a court order.
 
If you or a loved one has questions about how to recover your firearms after they've been seized by the police, call us for a free attorney consultation.  (714) 449 3335. Ask for John. Thanks for reading.

Fullerton Gun Lawyer

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

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

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

Pimping 

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

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

Pandering

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

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

Soliciting Prostitution

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

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

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

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

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

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

Loitering with Intent to Engage in Prostitution

Loitering in California is the crime of being in a public place with the intent to commit a crime, but without actually attempting the crime. If you are observed cruising an area known for prostitution, circling the block, asking girls whether or not they're "working", etc., you might be arrested on suspicion of "loitering", even if you never actually agree to engage in prostitution.

Human Trafficking 

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

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

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

Prostitution-related cases are often complicated because some offenses require the DA to prove the defendant's "specific intent". There are many possible defenses to these charges, including entrapment or other police misconduct. If you or a loved one is accused of any prostitution-related crime in Orange County, Los Angeles, Riverside or San Bernardino, call us for a free attorney consultation.  (714) 449 3335. Ask for John. Thanks for reading.

Orange County Prostitution Lawyer

New California Drug Law May Benefit Immigrants

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

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

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

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

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

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

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

If you or a loved one has questions about drug charges, immigration, diversion or cleaning up a criminal record, call us for a free consultation.  (714) 449 3335. Ask for John. Thanks for reading.

Orange County Drug Diversion

Fighting Elder Abuse Charges in California

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

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

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

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

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

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

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

Thanks for reading.

Orange County Elder Abuse Defense Lawyer

What Should I Do if I'm Under Investigation by the Police?

If you believe that you are under police investigation, you should immediately do 2 things (and only 2 things): #1) shut up, and #2) call a lawyer.


The Police Say They Want Me to Come Down and Make a Statement.  Should I Talk to Them?

No.  You should never talk to the police without your attorney present.  Remember, the police are not your friends.  They're not interested in helping you out, they're interested in sending you to jail. They will manipulate you, intimidate you, threaten you, and wear you down. If you agree to an interview with police investigators, you will eventually either lie, confess (or you will say something that could be twisted and misconstrued as a partial confession), or else you will paint yourself info a corner, limiting the options that your attorney might have used to defend you.

Remember, if investigators had a solid case against you, they wouldn't need your statement. If the evidence clearly proved that you were guilty, you'd already be in jail. The fact that detectives want your statement should be a hint that the case against you is weak.  Do not help them collect stronger evidence.

Often, detectives are looking for some "missing piece" of the proverbial "puzzle".  They might not need you to admit that you pulled the trigger, for instance.  Maybe they just need to establish that you were driving a blue car last Tuesday.  It's not a crime to drive a blue car on a Tuesday, so you admit that harmless fact. Investigators will use that information to connect the dots and to build a circumstantial case against you.  If you don't know what the missing piece of the puzzle is, then you are wandering into a minefield by speaking to detectives.


What Can a Lawyer Do if I'm Under Investigation?

Experienced, local criminal defense attorneys understand how the criminal justice system works. They know what police investigators are looking for and they understand the kinds of tricks that detectives use to elicit incriminating statements from suspects.

Your lawyer can notify the police that he or she represents you, and that all further communications should be conducted through your legal counsel.  Police may not directly contact you or seek any statement from you once they know that you're represented by an attorney. Often, this is enough to drive the investigation into a dead end.

In some situations, your attorney can conduct his or her own investigation to gather evidence that might be favorable to your defense.  If your lawyer has solid, exculpatory evidence, he or she may be able to prevent the filing of criminal charges before your case snowballs into a bigger headache.

While the police investigation is ongoing, your lawyer can ensure that your rights are preserved. He or she can share favorable evidence with investigators, and provide peace of mind by helping you understand the process and your options.


But Won't it Look Suspicious if I Hire a Lawyer?

I always say that I'm not afraid of my clients "looking suspicious".  It's not a crime to "look suspicious".  I probably spend most of my day "looking suspicious".

I am afraid, though, of my clients talking themselves into trouble.  When you sit down with police and answer their questions, you are almost guaranteed to talk yourself into trouble.


What Can't a Lawyer Do?

If you're suspected of a crime, no attorney can prevent the police from investigating you. Police investigate reports of crimes. That's their job. It's my job to make their job more difficult. I can inform them that you will not be answering any questions, but I cannot prevent them from approaching your neighbor and asking what he heard or saw.

We can't stop witnesses from reporting suspected crimes or from making statements about you to the police. It is a crime to dissuade a witness from reporting a crime or from testifying in court.  If somebody is saying untrue things about you, we can perform an independent investigation to prove that the witness is lying or mistaken. If witnesses are saying things that they know are untrue, they may be guilty of perjury or liable for defamation in civil court.

If the police have a search warrant, we cannot prevent them from executing it.  In court, we can raise legal challenges to the warrant (why it was issued, how it was executed, what was seized, etc.), but no attorney can simply stop the police from searching your property if they have a warrant to do so.

If you or a loved one believes that you're under investigation for a suspected crime, call us for a free consultation.  (714) 505-2468.  Ask for John.  We have offices in Fullerton, Santa Ana, Riverside and San Bernardino.  Thanks for reading.

Orange County Lawyer

How to Restore Gun Rights in California

There's been a lot of talk in the news media lately about keeping guns out of the hands of felons. Gun control is one of the most divisive issues today, and California has decided to take an aggressive lead in the movement to further restrict firearms.

If you are ineligible to purchase or possess firearms due to a criminal conviction in California, there are a couple ways by which you might be eligible to restore your Second Amendment rights.

California law offers several different options for cleaning up your old criminal record. Some (not all) of those options may have the effect of restoring gun rights. I'll try to explain the differences between these legal procedures.

Post Conviction Relief in California

After a defendant is convicted of a crime in California, state laws offer him a few different ways to clean up his criminal record. These procedures are collectively called "post-conviction relief".

Forms of post-conviction relief in California include:

-1203.4 Dismissal (commonly called an "expungement"):  A successful 1203.4 petition may change a defendant's criminal record so that the case shows up as a "dismissal" rather than a "conviction" when a prospective employer runs a background check. It's a great option if you're trying to get back to work after being convicted of a crime, but an expungement does nothing for gun rights. If you read the instructions on the paperwork carefully, they clearly inform the petitioner that a 1203.4 dismissal will not relieve him of his duty to register as a sex offender and will not restore his rights to purchase or possess firearms.

-Prop. 47:  In 2014, California voters approved Prop. 47. That ballot initiative reduced many crimes (such as drug possession) from felonies or "wobblers", to straight misdemeanors.  That law became retroactive, so people who had been convicted of felonies many years ago were suddenly eligible to apply to have their old cases reduced, even if they performed poorly on probation and had subsequent arrests. Unfortunately, a retroactive reduction under Prop. 47 will not restore gun rights, either.

-PC 17(b):  Section 17(b) of the California Penal Code allows judges to reduce some felonies to misdemeanors "in the interests of justice". Not all felony convictions are eligible for reduction under 17(b). Only "wobblers" potentially qualify. Wobblers are crimes that can charged as either felonies or misdemeanors, at the discretion of the DA. Common wobblers include domestic violence with injury, vehicular manslaughter and making criminal threats.

A reduction under 17(b) will restore firearms rights, assuming the defendant has no other disqualifying factors. Even if a felony conviction for domestic violence is reduced to a misdemeanor under 17(b), though, the applicant may still be ineligible to possess firearms. If the defendant and the victim were married at the time of the offense, federal law prohibits the defendant from purchasing or possessing firearms for life. If they were NOT married and the crime was treated as a misdemeanor, federal law does not apply. California law, however, still prohibits anyone with a misdemeanor conviction for domestic violence from possessing firearms for a period of 10 years following the conviction.

A judge may grant a 17(b) petition at any time -- before trial, after trial, while the defendant is serving a sentence, or after the defendant has completed his sentence.

In order to receive a reduction under 17(b), the applicant must demonstrate "good cause", and must demonstrate that the requested relief "serves the interests of justice". There is no magic formula for satisfying these requirements. Judges are reluctant to grant these requests, so the petitioner must be prepared with some pretty compelling arguments. In almost every post-conviction 17(b) hearing I've ever attended, the judge begins the proceedings with some version of this speech:

Back when this case was filed, the DA had the choice of treating the matter as either a felony or a misdemeanor.  They made the decision to file a felony charge, based on the nature of the offense and the defendant's criminal history.  The defendant had a fair opportunity to negotiate a settlement and he chose to accept a plea deal which included a felony conviction.  He did not have to accept that deal, but he did so because it was in his best interests at the time.  Now he wants to back out of that deal.  Explain to me why I should allow him to renege on his end of the bargain.

Judges like to hear these types of arguments (if they're true and relevant):

-Due to some change in circumstances, a plea deal that seemed fair at the time is no longer fair. "Change in circumstances" is the key here. The judge doesn't want to hear that you received a bad deal at the time of sentencing; he wants to hear that you received a fair deal at the time of sentencing, but things are so different today that the offer you accepted no longer serves the interests of justice.

-The defendant has really turned his life around in a commendable way. He has remained law-abiding for some length of time and he has made serious contributions to society in the form of community service, etc. He was in a dark place years ago, but he has now completed counseling, earned a diploma, gotten married and had kids, and addressed the issues that once caused him to commit crimes. It helps if the petitioner can explain how this felony conviction is preventing him from doing more good for his community (e.g., if the case were reduced, he would have more opportunities to counsel at-risk kids, go back to school, join the military, become a licensed therapist, etc.).

-The DA agreed in plea negotiations that the defendant would be eligible for 17(b) relief after certain conditions were met, and those conditions have been met. Conditions might include paying all victim restitution, completing some form of counseling, remaining law-abiding for a period, etc.

Judges do not want to hear a 17(b) petitioner argue that he is factually innocent of the charges. If a petitioner maintains that did not commit the crime(s) for which he was convicted, he should have fought the case when he had the opportunity to do so. If he was convicted by a jury, he should have followed the proper channels for appealing his conviction. A 17(b) hearing is not the time to argue guilt or innocence -- those issues have been determined a long time ago. The 17(b) hearing is the petitioner's chance to convince a judge that his old felony conviction is no longer fair and appropriate.

-Gubernatorial Pardon

The last option for restoring gun rights in California is to apply for a pardon from the Governor. The Governor of California has the authority to pardon individuals for certain felony convictions that occurred within the state. The procedure to apply for a pardon varies, depending on the offense for which the applicant was convicted.

According to the Governor's office:

A California Governor's pardon is an honor traditionally granted only to individuals who have
demonstrated exemplary behavior following conviction for a felony. A pardon will not be
granted unless it has been earned. Obtaining a pardon is a distinct achievement based upon proof of a useful, productive, and law-abiding life following conviction. The Governor has complete discretion in deciding whether to grant a pardon. A pardon is a privilege—not a right—and not granted to every person who applies.

A gubernatorial pardon will restore gun rights in most cases, unless the applicant was convicted of a crime involving dangerous weapons.

Consulting with an experienced, local attorney will significantly improve your chances of success if you're considering any of the options described here. If you or a loved one has questions about cleaning up a criminal record or restoring gun rights in California, call us for a free consultation. (714) 449-3335.  Ask for John.

Thanks for reading.

Orange County Gun Lawyer

Fighting a Domestic Violence Case in Orange County, California

Stock image "borrowed" from Linkedin.com

The Orange County District Attorney's office takes allegations of domestic violence seriously. You should, too. If you're accused of domestic violence in Orange County, call us immediately to discuss your options. Retaining a knowledgeable, local criminal defense attorney can help assure that your rights are protected as you navigate the criminal justice system.  

"Domestic Violence" is a broad term. It applies generally to any crime that occurs between members of the same family, spouses, cohabitants (people who live together) and people who are in a dating relationship, or who have recently ended a romantic relationship with each other. It can even apply to crimes that we don't typically think of as being "violent".   

Domestic violence cases are complicated and emotional by nature. It's often difficult (or impossible) to identify the aggressor. Alcohol is almost always a factor. More often than not, the case is based on the word of one witness against the defendant, with little or no physical evidence.

There is a popular misconception that victims of domestic violence have the choice of either pressing charges or dismissing the case. This is false. The victim does not "press charges", the DA does. The victim cannot simply "dismiss the case" (since he or she did not file the charges in the first place). Again, the decision of whether or not to dismiss a domestic violence case rests entirely with the DA. It is very common for prosecutors to pursue criminal charges against a defendant even after the "victim" states that he or she fabricated the entire story and does not want to cooperate with the prosecution.

Battery Against a Spouse or Cohabitant 

The most common charge that we typically see filed in Orange County domestic violence cases is PC 242(e), popularly known as, "Battery against a spouse or cohabitant". That title can be a little misleading because, as mentioned above, this code section can apply even if the parties are not technically married or living together, as long they are in a dating relationship or formerly dated each other.  

"Battery" is defined as, "unlawful use of force or violence". This can include pushing, slapping, punching or any other offensive physical contact. Battery can be accomplished even if no part of the defendant's body actually made contact with the victim's body. 

Violating PC 242(e) is a misdemeanor. It carries a maximum penalty of one year in jail and a $2,000 fine. Once the court includes all the mandatory fees, assessments and surcharges, that fine can quadruple.  

Anyone convicted of violating PC 242(e) in California is also required to complete a mandatory, one-year "batterer's treatment program". The BTP is essentially anger management counseling for individuals who have committed violent crimes against family members.   

A conviction for PC 242(e) will make you ineligible to possess firearms. It may also have implications for professional licenses and security clearances. Any domestic violence conviction will also have serious immigration consequences.  

Willful Infliction of Corporal Injury Upon Spouse or Cohabitant

Domestic violence that results in injury to the victim can be prosecuted under PC 273.5. That code section is a "wobbler" under California law -- it can be treated as a misdemeanor or a felony at the discretion of the prosecutor. If it is charged as a felony, the maximum penalty is 4 years in prison for a first offense, plus a $6,000 fine.  

Just like with PC 242(e), a conviction will include the mandatory, one-year counseling program and will make the defendant ineligible to possess firearms.  

False Imprisonment

False imprisonment is defined in PC 236 as, "the unlawful violation of the personal liberty of another." Depending on the circumstances, it may be punishable by up to 3 years in prison.

This offense is usually charged along with PC 242 or PC 273.5 when one party prevents another from leaving the room during an argument.  

Vandalism

Under PC 594, vandalism includes defacing, damaging or destroying property that belongs to someone else. Courts have consistently ruled that a person is guilty of vandalism even when the defendant destroys his or her own community property. In California, "community property" includes almost everything that is acquired by either spouse during the time that they are married, regardless of who actually earned the money or purchased the item.

Here's a common situation: A & B are married in California. A is a lazy, worthless deadbeat. B works hard every day to bring home food and money to support the family. B purchases a TV for the house a week after they get married. One day, B gets tired of subsidizing A's lethargic lifestyle and B smashes the TV (that B purchased with the money that B earned). B is guilty of vandalism, because the TV was community property regardless of who actually earned the money and paid for it. In California, you can be convicted of domestic violence vandalism for breaking your own stuff.

Dissuading a Witness 

Section 136.1 of the California Penal Code defines "intimidation of witnesses and victims". Preventing a witness from testifying in court or from reporting a crime to the police can be treated as a misdemeanor or a felony, depending on the facts of the case. A violation can be punished by up to four years in prison.

This is usually charged when one spouse tries to prevent the other from calling the police during or after an argument.

Defenses to Domestic Violence Charges

As mentioned above, domestic violence cases are complicated by their nature. People get emotional and they say things they don't mean. Those statements get misinterpreted, misquoted, exaggerated, and included in police reports. Overzealous prosecutors take those police reports and run with them. By the time cooler heads eventually prevail, the train might have left the station. Dad's in jail, he's been fired from his job, and the whole family is punished over an "incident" that may or may not have actually happened. Alleged victims are often reluctant to correct or retract their previous statements to police because they're afraid of being arrested for filing a false report.

An experienced, local criminal defense attorney can help put the pieces back together. We will gather the facts, analyze the evidence, speak with the witnesses, and help you understand your options. We will appear with you in court and negotiate with the DA to ensure that you aren't intimidated by the criminal justice system. We will stand by your side to protect your rights and to help you achieve the best result possible for your case.

If you or a loved one has questions about domestic violence in or around Orange County, call us for a free attorney consultation.  (714) 449 3335.  Ask for John.  Thanks for reading.

Orange County Domestic Violence Lawyer

What Does Obama's New Executive Order Mean for Gun Owners in California?

Cool picture stolen from combatarms.wikia.com

President Obama announced a package of new executive orders today, collectively aimed at reducing gun violence in America.  

One key provision that has attracted a lot of media attention has been Obama's proposal to tighten the so-called "gun show loophole".  Federal law currently requires all gun dealers to conduct background checks before selling firearms to members of the public.  A loophole in the federal rules, however, allows private individuals (non-gun dealers) to sell guns to each other without conducting any checks on the purchaser's eligibility to possess weapons.  

The president cannot simply close this loophole unilaterally, because only Congress can make federal laws.  He can, however, order the Bureau of Alcohol, Tobacco, Firearms & Explosives to redefine who counts as a "gun dealer".  By expanding the definition of "gun dealer", more sellers will now be required to conduct background checks on prospective buyers.  

So what does this new rule mean for gun owners in California?  Absolutely nothing.  California law already requires all private gun sales to be conducted through a licensed firearms dealer (called a "private party transfer").  There is no "gun show loophole" in California.  

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

Santa Ana Gun Lawyer