Shoplifting, Commercial Burglary and Theft in California

The act of stealing from a store in California can lead to a variety of different criminal charges, depending on the circumstances.  Prosecutors have a wide range of options for dealing with individuals who commit retail theft.  The good news, though, is that defendants also have several options to fights these charges. 

Grand Theft vs. Petty Theft

Stealing from a retail business is theft (AKA "larceny" -- larceny is just a fancy word for "theft").  If the value of the property is more than $950, the case will be treated as a felony ("grand theft").  Generally, theft of property valued at less than $950 is a misdemeanor ("petty theft").  

Grand theft can be punished by up to 3 years in  jail.  Petty theft, on the other hand, usually carries a maximum sentence of 180 days in jail, plus a fine of $1,000.  Petty theft can even be treated as an infraction, which carries no jail time and a fine of only $250.  

Shoplifting

Under California law, "shoplifting" is different from the crime of petty theft.  To be guilty of shoplifting, the DA must prove that the defendant entered a store during normal business hours with the intent to steal.  Prosecutors do NOT need to prove that the defendant actually completed the theft, only that he planned to steal at the time that he entered the store.  

If the subject takes something valued at less than $950 (or if it can be proven that he planned to take something valued at less than $950), then shoplifting is usually treated as a misdemeanor.  If the value of the goods is more than $950, then prosecutors can file felony charges (including Commercial Burglary, below).  Shoplifting can also be treated as a felony if the defendant has a prior conviction for a similar offense.  

Commercial Burglary

Commercial burglary in California is the crime of entering a store with the intent to commit theft during hours when the business is not open to the public.  

As mentioned above, prosecutors can also file Commercial Burglary charges if they can prove that the the defendant entered a store with the intent to steal property valued at more than $950, during normal business hours.

The maximum sentence for commercial burglary is 3 years in jail.  

Organized Retail Theft

If prosecutors can prove that more than one person worked together to commit theft, any individual who participated in the plan can be charged with Organized Retail Theft under section 490.4 of the California Penal Code.  This includes anyone who actually steals the merchandise, as well as anyone who purchases the goods knowing that they are stolen, and anyone else who assists, organizes supervises or encourages the plan in any way.  

If the DA can prove that participants committed more than one organized theft within a 12-month period, and the total value of goods stolen during that time is more than $950, then they can all be charged with felonies.  Again, the maximum penalty for Organized Retail Theft is 3 years in jail.  

Defense Options

In any criminal matter, the defense attorney's first object is to attack the facts of the prosecutor's case.  We try to collect and present evidence that will prove our clients are innocent (or at least not guilty).  

Sometimes, though, the evidence is bad.  In many theft cases that I've handled, the surveillance cameras conclusively show my client removing tags, concealing items inside other bags, entering the dressing room with several items and emerging with fewer, etc.  In these situations, we have to find creative solutions to keep my clients out of jail.  Luckily, there are several ways to defeat theft charges without going into custody.  The options described below can even result in a total dismissal of charges.   

Civil Compromise

Under a Civil Compromise, a defense attorney negotiates a settlement directly with the victim, rather than plea bargaining with the District Attorney.  This usually involves writing a check in exchange for the victim's signature on a document requesting that charges be dismissed.  

The document must contain some "magic" legal language and should be negotiated only by a qualified attorney.  There are a few fine lines between "negotiation", "witness intimidation" and "extortion". 

Deferred Sentence

In some counties, courts have implemented a "Deferral of Sentence Pilot Program" ("DOSP").  Under this voluntary program, qualified defendants are given the opportunity earn a total dismissal of all charges after one year.  

To take advantage of the DOSP, subjects must plead "guilty" up front.  Rather than being sentenced and convicted, though, they are ordered to complete whatever tasks that the judge deems appropriate.  These may include community service, AA meetings, counseling, etc.  Sentencing is postponed for one year.  If the participant completes all terms and remains law-abiding for that year, then charges are dismissed at the time of sentencing.  If the participant fails to comply, however, the court already has his or her "guilty" plea on file.  The judge can simply impose whatever penalty is appropriate at that time.  

DA Diversion

In Orange County, some defendants may qualify for the "DA Diversion" program.  Defendants who chose to take advantage of this deal are ordered to attend a 6-hour class about the harms of shoplifting.  The class is presented on a Saturday at Santa Ana Community College.  

Participants are also required to provide a DNA sample for retention in the District Attorney's database.  The sample is collected by swiping a cotton swab on the inside of the subject's cheek.  The results are used to crack unsolved cases.  

Similarly to the DOSP program, defendants who participate in DA diversion are usually required to plead "guilty" in advance.  Once they return to court with "proof of completion", their guilty pleas are thrown out and the case is dismissed.  Prosecutors do have discretion, though, to allow defendants into the diversion program without pleading guilty up front.  This is usually a selling point for defendants who hold professional licenses (doctors, nurses, etc.), who don't want to disclose a "guilty" plea to their governing boards.  

The DA Diversion program is usually fairly quick and easy for defendants to complete.  Unlike the DOSP program,  in which sentencing is postponed for a full year, sentencing in the DA Diversion Program is usually scheduled about 3 months out. 

If you or a loved one has been arrested or cited for theft or shoplifting in Orange County, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.  

Thanks for reading.  

Ask a Lawyer: How to Fight a "Drunk in Public" Case

There's a lot of misinformation out there about "drunk in public" charges.  If you or someone you love has been arrested or cited for violating section 647(f) of the California Penal Code, stop taking bad advice from your friends -- read this instead. 

Elements of the Offense

Just like the name implies, being "drunk in public" includes 2 elements that must both be established beyond a reasonable doubt: 1) that the defendant was "drunk", and 2) that he or she was "in a public place".  As with many things in the law, though, those terms have special meanings that are a little different from their definitions in normal usage. 

To be considered "drunk" for purposes of PC 647(f), the DA must prove that the defendant was so impaired by alcohol that he or she could not care for their own safety or the safety of others.  Unlike in DUI cases, though, the DA does NOT need to prove the defendant's specific blood alcohol concentration.  In DUI cases, the prosecutor can win by simply establishing that the defendant's BAC was above 0.08%.  There is no specific legal BAC limit for walking around on the street, though. 

To satisfy this first element (that the defendant was "drunk"), the DA will present evidence that the subject was a danger to him / herself or others.  If the defendant was found wandering in the street, passed out, injured or involved in a fight, those facts would support the contention that the defendant was not able to care for his / her own safety.  By law, people who are arrested on suspicion of violating PC 647(f) may demand a breathalyzer test, but they are not required to submit to one.

The second element of PC 647(f) trips up a lot of people who read the statute too literally.  As I mentioned above, the California Penal Code uses some terms with meanings that may differ from their ordinary usage.  "Public place" is one of those terms.  Courts have determined that ownership of the land has nothing to do with whether or not a place is considered "public".  Under PC 647(f), a place is considered "public" if it is open to the public and people are generally free to walk through while conducting legitimate business, even briefly.  This includes the insides of privately-owned bars, private parking lots (including inside cars that are parked in private lots), common areas of apartment buildings, and even the front lawn of your own house.  If a mail carrier or a Girl Scout could walk across your front lawn without being arrested for trespassing, then your front lawn is considered a "public place" for the purposes of 647(f).  This means that you can be arrested for being "drunk in public" on your own front lawn. 

Defenses to the Charge

The most common and obvious defenses to "drunk in public" charges are that the defendant was not drunk, or that the place was not "public". 

I have actually (successfully) defended a case where my client was arrested for being "drunk in public" inside his own living room.  I understand that the law uses an expansive definition of "public place", but this was just ridiculous.  Granted, my client had been dangerously drunk, but he hadn't committed any crimes.  He had weapons and the police wanted to get him out of the house to preventing him from hurting himself or someone else.  If he had actually threatened anyone, he could have been charged with PC 417 (brandishing a firearm) or 422 (making criminal threats), but he hadn't.  The only options police had were to arrest him on a bogus PC 647(f), or else to leave him drunk and alone with his weapons.  Of course, the case was eventually dismissed. 

Even if the defendant WAS dangerously impaired in a public place, "involuntary intoxication" is a defense if the defendant can prove that he was "dosed", or that he had involuntarily ingested some unknown substance.  GHB for instance, is commonly used a "date rape drug".  It can cause symptoms that are very similar to alcohol intoxication (poor coordination, slurred speech, disorientation, sedation, loss of consciousness, etc.).  This is obviously rare, but I successfully defended a case a few years ago where witnesses confirmed that my client had only consumed 2-3 glasses of wine over the course of the night.  One of the glasses had been given to her by a man she didn't know.  Within about a half hour of her last drink, she began acting bizarrely and completely lost her ability to stand on her own feet.  Police found her rolling on the ground in a parking lot.  She appeared to be extremely drunk, but involuntary intoxication was the only logical explanation once the witnesses came forward.  That case was also dismissed. 

Alternatives to Prosecution

Even if the case is strong, there may be options to fight a 647(f) case, or at least to avoid a conviction. 

Depending on a defendant's criminal history, he or she may be eligible for some form of "deferred entry of judgement" program.  The specifics vary by county, but DEJ can satisfy a lot of the "objectives of justice" without hammering first-time offenders.  It usually requires the participant to plead "guilty" in advance.  A "sentencing hearing" will be scheduled several months later.  Between the time of the plea and the sentencing hearing, the defendant will be ordered to satisfy various criteria (take a class about the dangers of alcohol, attend AA meetings, perform community service, etc.).  If all those terms are satisfied before the sentencing hearing, then the case is simply dismissed.  A defendant who successfully completes DEJ is never actually sentenced for the crime.  Since a defendant is not technically considered "convicted" until he or she has been sentenced, successful completion of DEJ is a great way to keep a "conviction" off your criminal record. 

If the defendant has several prior convictions and he or she is not eligible for DEJ, we can usually get creative to fashion to some alternative that has roughly the same result.  I always argue that someone with several prior convictions needs treatment even more than a first-time offender.  It doesn't make sense to me that someone with a well-documented history of alcohol abuse would be excluded from treatment-based solutions.  If the defendant is willing and able to comply with some extensive course of alcohol counseling and / or treatment (or if the defendant is ALREADY in a program like that), we may be able to negotiate a deal whereby he or she receives credit for time spent in that treatment.  Obviously, everyone benefits if we can ensure that the same problem is less likely to arise in the future. 

If you or a loved one has been arrested or cited for violating section 647(f) of the California Penal Code, commonly referred to as "drunk in public", call us for a free attorney consultation.  (714) 449-3335.  Ask for John. 

Thanks for reading. 

Fullerton Drunk in Public Lawyer

Fight a Hit & Run Case in Orange County

Under California law, any driver who is involved in a vehicle collision must immediately stop and provide his or her contact information to the owner of any damaged property.  If the owner cannot be found, the driver must leave a note in an obvious place and immediately notify the local police or CHP.

Leaving the scene of a traffic accident without exchanging contact information is a crime in California, commonly known as "Hit & Run" (VC 20002).  If the collision involves only property damage, Hit & Run is usually treated as a misdemeanor.  If someone is injured or killed, it can be treated as a felony.

A lot of my clients are surprised to learn that they can be charged for Hit & Run even if they collide with a stationary object and no other cars are involved.  Hitting a stop sign, a guard rail, or a tree, for example, can lead to a Hit & Run charge if public property is damaged the driver fails to immediately report the collision to police.

There are plenty of reasons that people leave collision scenes.  Some of these reasons might even help form a defense to criminal charges.  If the other driver threatened you and you were afraid for your safety, you might have had a valid reason to flee.  If the collision occurred on the freeway, there might not have been a safe place to stop and speak to the other driver.  If the collision was so minor that you didn't even realize you'd hit something, you might also have a good excuse for failing to stop.  These are just a few common examples.

I understand that some drivers simply panic and flee because of adrenaline and emotions.  This isn't a legal defense, but judges and prosecutors may show lenience when the offender is young, inexperienced, and sincerely remorseful.  It also helps if the driver (or the driver's insurance carrier) is able to fully pay for any damage.

Keep in mind also that fault for the actual collision has nothing to do with Hit & Run charges.  It does not matter who was responsible for causing the accident.  Even if some reckless maniac hit you, you are still required to stop and exchange information.

Until recently, Hit & Run cases could be resolved through a process called a "Civil Compromise", or "Civ Comp".  If the victim, the DA and the judge all agreed, the defendant could simply write a check to the victim for any damages and the victim could request that the criminal case be dismissed.  The entire process was usually negotiated by the defendant's attorney.  Courts ended the practice earlier this year, though.  They explained that, when someone commits a Hit & Run, they're not in trouble for causing a collision -- they're in trouble for leaving the scene of the collision.  The "victim" in a Hit & Run case isn't just the person you hit (or the person who hit you); the real victim is the administration of justice.  Simply paying for the property damage doesn't make up for the actual wrongdoing.  Unfortunately, this means that "Civil Compromise" agreements are no longer an option to resolve Hit & Run cases in California.

We still have other options to fight Hit & Run charges, though.  Depending on a lot of circumstances, the defendant may be eligible for some form of "diversion" or "deferred entry of judgement".  Under these deals, a defendant would be ordered to pay some fees, take some classes, perform community service, provide a DNA sample and / or do whatever else is agreed upon.  Once he or she has completed those terms, the case may be dismissed entirely or reduced to a less-serious charge.

Of course, these options are assuming that the defendant is actually guilty of a crime -- and that the DA can prove it.  Hit & Run cases can be notoriously difficult to prove, though.  Even if prosecutors can prove which car was involved and they know the registered owner of that car, they can't always establish who was driving the car at the time of the collision.  To be convicted of Hit & Run, the DA must prove that a specific defendant was behind the wheel.  If someone else used your vehicle to commit a crime, you are not criminally responsible.  And if police ask you questions about who was driving your vehicle at some specific time, you have no legal obligation to answer or to snitch on a family member.  Police may threaten and intimidate you, but they cannot legally compel you to answer questions.

If you or a loved one has questions about fighting a Hit & Run case in Orange County, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.

Thanks for reading.

Orange County Hit & Run Lawyer

Court Updates: Domestic Violence Restraining Orders

The courts that handle Domestic Violence Restraining Orders in Orange County got a shake-up earlier this year.  The laws haven't changed, but the names and places have. 

Previously, all Domestic Violence Restraining Orders were heard at the Lamoreaux Family Justice Center in Orange.  Due to overcrowding, though, these hearings are now being conducted at the other branch courts.  Some of the judges who now hear restraining order cases previously handled serious criminal matters and probation violations.

Some DVROs are still being heard at Lamoreaux, but the judges who officiate have all been shuffled.  Judge De La Cruz from L-63 is now at the Westminster Courthouse, and Commissioner Wilson from L-11 is hearing criminal cases in the Harbor Justice Center. 

Some of the forms used in Domestic Violence Restraining Orders were updated earlier this year, with some minor revisions to the DV-109 Notice of Court Hearing and some changes to protect confidential information of minors.  If you're using old forms, it's time to update. 

Restraining Order courts are taking a more active role in ensuring that firearms are accounted for.  If a restraining order is granted against an individual, the restrained party must surrender any firearms in his or her possession within 24 hours.  Weapons may be turned in at a local police station, stored with a licensed firearm dealer, or sold.  Proof that the weapons have been turned in, sold or stored must be filed with the court within 48 hours.  When the case called for a hearing, the judge is now required by law to check with the California Department of Justice to determine whether or not the restrained party has any firearms registered in his or her name.  If weapons are unaccounted for, the respondent can be held arrested.

Local enforcement teams from the California State Department of Justice have also been busy physically going door-to-door and collecting firearms from prohibited individuals.  Most of these actions are "knock and talk" encounters.  If the DOJ believes that someone who is the subject of a restraining order is in possession of firearms, they will simply knock on the subject's door and ask about the weapons.  If the homeowner refuses to hand over the guns, then the DOJ agents may apply for a search warrant, depending on the strength of their evidence. 

Domestic Violence Restraining Orders probably have more serious consequences now than ever before.  If you or a loved one has questions about a restraining order in Orange County, call our office for a free attorney consultation.  (714) 449-3335.  Ask for John. 

Thanks for reading. 

Orange County Restraining Order Lawyer.

Cited in Catalina: Summer 2019 Edition

It's been a busy summer in the Catalina Courthouse.  As always, our firm defended more criminal cases on the island than any other private firm (not the Public Defender Panel).  As the most experienced local attorneys in Catalina, we're also still covering cases for other lawyers who are unable to appear on behalf of their own clients on the island.

We got some great results this summer in cases involving controlled substances, illegal fishing, poaching abalone, drunk in public, battery, domestic violence, DUI, vandalism, theft, possession of controlled substances, and just about every other offense arising in and around Catalina Island.

And the season isn't over.  There are still a few big events and concerts slated for September and October (not to mention Buccaneer Days...).  If you're planning to attend one of these, save my number now (714) 449-3335.

As usual, the bulk of arrests in and around Catalina Island this year involved alcohol-related offenses.  "Drunk in public" charges are nothing new.  I keep trying to warn people, but nobody reads this blog until after they've been arrested -- authorities on Catalina treat "drunk in public" cases very seriously.  The LA Sheriff and the District Attorney prosecute these charges aggressively.  A simple PC 647(f) arrest in most places means a night in jail and a stern warning.  In Catalina, the same arrest can lead to probation, community service, mandatory AA meetings, high fines and even jail.  This is a shocker for attorneys who aren't familiar with the local "justice" system in Avalon.

Visitors also need to be aware that golf carts are considered "motor vehicles" in California.  That means the 0.08% blood alcohol limit applies.  Driving a golf cart while impaired by alcohol or marijuana is a DUI.  A lot of tourists learn this lesson the hard way every year ("But isn't that what golf carts are FOR?!?").

Fishing laws are just as complicated and DFW agents are just as aggressive as ever.  They're still busting unsuspecting fishermen who accidentally drift into protected areas, and they're still inspecting coolers for unidentifiable or undersized fillets.  If you are fishing in or around Catalina Island, take a good nautical map, a reliable GPS and an updated copy of the CA DFW fishing regulations.  We're getting close to lobster season, so expect game wardens to be on full-alert.

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

Thanks for reading.

Catalina Island Lawyer

Can I Drop Domestic Violence Charges?

Domestic violence cases can be frustrating for victims (or "alleged" victims).  Police investigators and prosecutors at the DA's office might pick up cases and run with them aggressively before the facts are fully known.  Even when victims come forward and explain that the allegations are exaggerated or completely untrue, prosecutors probably aren't interested in hearing it.  Once they've made up their minds to hammer some defendant, prosecutors can develop tunnel vision and simply fixate on winning their convictions.

Victims of domestic violence often call my office and say that they want to "drop the charges" against their husbands (or boyfriends, girlfriends, etc.).  Unfortunately, I have to explain that DV cases aren't that simple.  The decision to file / prosecute / negotiate / dismiss a domestic violence charge rests entirely with the District Attorney.  Just as individual victims cannot personally file criminal charges, individuals cannot simply dismiss criminal charges once they have been filed by the DA.  That doesn't mean that the case is hopeless or that the defendant will definitely be convicted, though.  It just means that the "victim" has very little control over how the criminal case will proceed.

As the DA sees it, people who hit their partners and spouses don't just commit crimes against those victims, they commit crimes against the "People of the State of California".  If prosecutors believe that the evidence supports a conviction, the DA will aggressively pursue a case regardless of the actual victim's wishes.  

In many DV cases, prosecutors can easily prove the defendant guilty even without the victim's cooperation.  If the victim called 911 and described the abuse as it was happening, police arrived and found the victim injured, the defendant was drunk and admitted to the crime, etc., then the DA probably doesn't need a credible victim to establish what happened here.  Prosecutors might have an audio recording of the 911 call, footage from body-worn cameras as police responded and spoke with witnesses, photos of injuries, etc.   Even if the victim refuses to testify in a case like that, the prosecutor can probably prove the crime based on the totality of the other evidence. 

In many DV cases, though, the facts aren't so clear-cut.  Maybe neighbors called the police but they didn't actually see anything.  When police arrived, both husband and wife were drunk, some property was broken and both had scratches on their arms.  If the wife is screaming and the husband is refusing to answer any questions, the husband will probably spend a night in jail.  If the DA picks up the case, they will seek harsh penalties against the husband.  They will not simply dismiss the case just because the wife asks them to.

That doesn't mean the DA always gets what they want, though.  An experienced criminal defense attorney can work with a cooperative "victim" to collect and prepare helpful evidence.  This may include additional witness statements that were not taken as part of the initial police investigation -- and statements that may have "evolved" since they were recorded in the police reports.  It can also include things like audio recordings, text messages, surveillance camera footage, medical records, or anything else that pokes holes in the prosecutor's story.  By the time we're done with a cooperative "victim", the DA's case might be a lot weaker than they initially understood it to be.  Once the case starts to fall apart, prosecutors may be forced to negotiate or even dismiss the case entirely.

If you or a loved one is listed as an alleged "victim" in a domestic violence case, call us for a free attorney consultation. (714) 449-3335.  Ask for John.  Don't ever talk to police or prosecutors without calling us first.

Thanks for reading.

Fullerton Domestic Violence Lawyer

What We're Working On Now

It's been a while since I've published an update.  We've been busy and I'm proud of some of our recent results.  Here are a few highlights, if I may brag:

-LF v. GT:  We represented the respondent in a Civil Harassment Restraining Order.  His next door neighbor was seeking protection based on a series of baseless, frivolous allegations.  Most of the petitioner's claims were not actually grounds for a restraining order, and she had no evidence or witnesses to support other accusations she was making.  I warned the petitioner before the hearing that she had exactly zero chance of winning, and I gave her the opportunity to save her own time and mine.  Instead, she chose to waste a bunch of taxpayer resources before leaving the court sad and empty-handed.  My client was happy, though, so I'm happy.

-People v. RR:  My client was arrested last year on suspicion of DUI.  At the time of his arrest, officers found tactical gear, police scanners, a dagger and a replica firearm in his car.  The DUI was reduced down to "wet & reckless" and my client was never charged or convicted for anything related to impersonating an officer.  The items in his car were not contraband and there was no evidence that they were tied to any crime.  This week, a judge ordered the San Gabriel Police Department to return all of those items to my client.

-People v. AO:  My client was visiting Disneyland with her family.  Her mom had previously given her a "self-defense" key chain, with an object that could technically be considered "brass knuckles" attached.  She obviously didn't intend any harm and she had even flown on a commercial flight carrying the item.  Police at Disneyland, though, decided to cite her for a misdemeanor.  This week, the Anaheim City Attorney agreed to reduce the charge to an infraction so that it will not affect her criminal record.

-People v. MA:  Our defendant is a mentally ill homeless man who was charged with several counts of trespassing and being drunk in public around Orange County.  He had at least one case with the Orange County District Attorney, and a handful of others that were prosecuted by the Anaheim City Attorney.  Defendant's family got him into a residential alcohol treatment facility.  We were able to coordinate a deal with both prosecuting agencies so that our client would receive "credit for time served" in treatment.  Some counts were dismissed and others were given a "terminal disposition" (time served, no probation).

-JS v. KC:  We represented an elderly man in a restraining order that his (also elderly) wife had filed against him.  After prolonged negotiations, she agreed to dismiss the case entirely and to seek couples' therapy jointly with my client.

-People v. JG:  Our client was accused of a laundry list of felony charges, including domestic violence, child endangerment and false imprisonment.  By the time we were done, he pled to a misdemeanor with no jail time.  I call that a "win".

We're currently fighting some really interesting cases, but I can't comment while they're pending.  I hope to share some more good news soon.  Stay tuned for future success stories as they become available.

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

Thanks for reading.

Orange County Criminal Defense Attorney

Arrested in Catalina: What to Do Now

Cops on Catalina don't mess around.  If you're reading this, you probably learned that the hard way.

Every summer, hundreds of thousands of visitors flock to Catalina to enjoy everything the island has to offer.  For many, that includes alcohol.  For some, that also includes a night at the Avalon Sheriff's Station.  If you were cited or arrested while visiting Catalina Island, this blog is for you.

Our office defends more cases on Catalina every year than any other private attorney or law firm.  Only the Public Defender handles more Catalina cases than us.

Catalina court is it's own world, too.  Most visiting attorneys are shocked by how "differently" things are done there.  Among other peculiarities, the building is only open on alternating Fridays.  If you show up on a Thursday, the doors will be locked.  Plus, no case files are kept on site -- they're stored in Long Beach.  That means the judge probably can't accommodate you if you show up unexpectedly when your case is not scheduled to be heard on the day's calendar.  Adding a case onto the court's calendar (to recall a warrant or to request an extension, etc.) can be an ordeal in itself.

The court staff, including judge, prosecutor, recorder and clerk fly out by helicopter from San Pedro for each appearance.  The bailiff, defense attorneys and most of the defendants travel by boat from Long Beach.  Any sort of inclement weather on either side of the channel can completely foul up everything.  Sometimes, the helicopters are flying but the boats aren't running, so the court staff shows up but none of the defendants appear.  Sometimes the opposite happens and the judge calls in over the phone.  Either way, it doesn't take much to gum up the works.

Despite what the deputy or game warden told you, your case will not be heard in Long Beach.  All misdemeanors and infractions arising in and around Catalina are prosecuted on the island.  Felonies are filed in Long Beach, though.  The most commonly charged crimes on the island are probably drunk in public, DUI, various fishing violations, possession / under the influence of a controlled substance, assault / battery, domestic violence, fighting and shoplifting.  As I've previously written on this blog, you can be arrested for DUI on a golf cart.

Another unusual thing about the Catalina Courthouse is their general hostility toward alcohol-related offenses.  Every court in every county has its own priorities (as determined by the elected District Attorney for his own political reasons).  Some courts are lenient with firearms but harsh on domestic violence, for instance.  The Catalina court is exceedingly harsh on offenses like "drunk in public".  In most parts of California, a 647(f) arrest means a night in jail and a stern warning.  In Catalina, the DA's standard offer for a 1st-time drunk in public charge includes probation, community service, AA meetings, and fines.  Jail is even on the table for repeat offenders and exceptional cases.

About half of the defendants in Catalina court are there for some fishing-related offense.  Fishing inside a protected area is a big one, along with a million other ticky tacky minor infractions -- some of which carry disproportionate fines.  The minimum fine for an abalone violation, for instance, is over $60,000.

The good news in all this is that, for most misdemeanor cases in California, you do not need to personally appear in court.  A private attorney like myself can appear in your place for most hearings.  I can save you the time and expense of traveling all the way back to Catalina for a series of routine appearances.

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

Catalina Island Lawyer

The Disneyland Brawl: How OC Politics Will Run the Show

Updated 7/23/19:  The OC District Attorney has charged Avery Robinson, 35, with 14 separate criminal charges, including 5 felonies.  His sister, Andrea Robinson, was charged with 5 misdemeanor counts of assault / battery.  Ms. Robinson's husband, Daman Petrie, was additionally charged with a single misdemeanor count of battery.  All charges will be prosecuted by the OCDA.  

Legal observers are curious to see how the investigation and prosecution(s) will play out after last weekend's Disneyland Brawl.  In case you missed it, take a moment, grab some popcorn, turn up your volume, click the link and watch one family turn Toon Town into "The Slappiest Place on Earth".

Now the real fists are about to fly as the OCDA and the Anaheim City Attorney slug it out over who will have jurisdiction to prosecute.  First, a little background:

All felonies in Orange County are prosecuted by the District Attorney's Office.  The DA is an elected official.  The DA also prosecutes ALMOST all of the misdemeanors arising within the county's borders.  As one notable exception, though, the City of Anaheim maintains its own local prosecutor.  The Anaheim City Attorney is responsible for prosecuting all misdemeanors that occur within the City of Anaheim.

Since the ACA reports to the Anaheim City Council and the Anaheim City Council effectively reports to Disneyland, the Disney Corporation indirectly operates its own prosecutor's office via the Anaheim City Attorney.  This arrangement essentially allows Disney's shareholders to call the shots regarding how / if misdemeanors are prosecuted in the City of Anaheim.  It's no wonder that the policies and priorities of the Anaheim City Attorney's Office sometimes seem like they're more intended to promote tourism than to promote justice.

The short version is this: if charges are filed as felonies, the cases will be prosecuted by the Orange County's elected DA.  If they're filed as misdemeanors, then the cases will be prosecuted by the Disney Corporation via the Anaheim City Attorney's Office.

The video of Sunday's brawl shows a laundry list of violent offenses, including assault, battery, criminal threats, disturbing the peace, child endangerment, and assault by means likely to induce serious injury.  Depending on the relationship of the parties, there might also be a variety of domestic violence-related charges.  Some of these charges can potentially be filed as felonies.  This is where it gets interesting.

I'm sure that the ACA would love to keep this one in-house.  If charges are filed as misdemeanors, then Disneyland can call the shots.  By aggressively prosecuting the case, the Disney Corporation could reassure potential tourists that the park is safe.  They must be eager to save some face, too.  Their security should be humiliated by their complete failure to address the situation in the video.  The fight lasts almost 4 minutes and 30 seconds.  The fact that a bystander recorded the beginning of the fight also suggests that onlookers had some warning that trouble was about to erupt.  Disneyland loves to brag that every inch of their park is covered by cameras, but they sure didn't respond to this melee in a timely manner.  At some point, security guards appear to officiate the brawl like Mills Lane, but they don't make any serious effort to intervene.

If the case is really going to be prosecuted aggressively, though, the DA must take the lead.  Only the DA can bring the kind of felony charges that might carry serious prison sentences.  Of course, the DA might not take their marching orders from Disneyland, though.  Anaheim's biggest fear is probably that the DA will claim jurisdiction by filing felony charges.  After prolonged plea negotiations, the defendants might eventually accept misdemeanor convictions and the ACA will be left completely out of the loop.  It would be ironic if the ACA lobbies the DA to reject felony charges, just so that they can file their own misdemeanor charges and "really play hardball".

Stay tuned to see how this plays out.  I expect we should see a press release by the Anaheim PD, the OC DA and / or the Anaheim City Attorney within a day or two.

If you or a loved one has questions for a criminal defense attorney in Orange County, call our office for a free consultation.  Ask for John.  (714) 449-3335.

Thanks for reading.

Orange County Criminal Defense

What is the "Twinkie Defense"?

The "Twinkie Defense" refers to a legal argument that was used during the 1979 trial of Dan White for the murders of San Francisco Mayor George Moscone and Supervisor Harvey Milk.  The term is often used derisively (and incorrectly) in reference to any criminal defense theory that seems absurd.

Unfortunately, some lazy reporting by members of the news media at the time completely misrepresented the defendant's actual argument.  That shoddy journalism led to some widespread misunderstanding that persists to the present.  Today, the term seems to be misused in popular culture much more often than it is used correctly.  In reality, the argument was a sound legal defense and not nearly as ridiculous as it came to be understood.  Let me explain.

Dan White had been a San Francisco police officer and firefighter.  In 1977, he was elected to the San Francisco Board of Supervisors.  Over the following year, a deep political rift arose between him and fellow Supervisor Harvey Milk, which ultimately led White to resign from his position.  Shortly after tendering his official resignation, White attempted to rescind it and to rejoin the Board.  Milk lobbied against his reinstatement and successfully convinced Mayor Moscone to appoint a more liberal political ally to the vacant seat.

On November 27, 1978, White arrived at San Francisco City Hall with a .38 caliber revolver.  He climbed through an open window to elude metal detectors at the building's entrance and proceeded to Moscone's office, where he demanded a meeting with the mayor.  Following a verbal argument, White shot Moscone several times, reloaded, and quickly left.  White then encountered Harvey Milk in a hallway.  He asked Milk to step inside his former office, where he shot and killed the supervisor.  White escaped from City Hall, but later turned himself in at a local precinct.

Dan White was charged with 2 counts of premeditated murder.  At trial, the prosecutor presented evidence to support the allegation that the murders were carefully planned, including the fact that White had the presence of mind to climb through a window rather than submit to security screening at the building's entrance.

In his defense, attorneys argued that White suffered from severe depression, leading to a state of "diminished capacity".  They told the jury that White's mental illness rendered him unable to form the "premeditation" required for a 1st-degree murder conviction.  As proof of his depression, attorneys presented evidence of extreme behavioral changes that White had undergone shortly before the murders.  Previously, White had been described as a "fitness nut", who exercised regularly and adhered to a strict diet of healthy food.  In the weeks leading up to the shootings, though, White's hygiene had deteriorated, he had become alienated from his wife, and he had begun consuming junk food and sugary drinks.  These things were all considered to be out of character for him.  At trial, psychiatrists described those severe behavioral changes as symptoms of White's depression, not the cause of it.  Nobody argued that Twinkies made him insane -- they argued that White was insane, and that his uncharacteristic consumption of junk food was proof that he had temporarily lost his ability to think clearly and to understand the nature of his actions.  

Jurors agreed with the arguments of White's defense counsel and returned verdicts of "voluntary manslaughter" rather than 1st-degree murder.  Public outrage over the verdicts led to riots and some significant changes to California law.  Today, the argument of "diminished capacity" has been abolished in California courts and replaced with the doctrine of "diminished actuality".  Defendants can no longer argue that some mental illness rendered them unable to form criminal intent.  Instead, they must prove that they actually did not form the requisite intent due to some mental illness.  The distinction is subtle but it has had a huge impact on the way that these types of cases are litigated today.

Irresponsible members of the news media fed into the public outrage by grossly misrepresenting White's actual argument.  As the story was falsely relayed by several outlets, Dan White had escaped justice by speciously arguing that he was "high" on Twinkies at the time of the killings, or that his excessive consumption of sugar had somehow rendered him "temporarily insane".  Sensational but inaccurate stories made national headlines and perpetuated the myth of the "Twinkie Defense" as it persists in popular culture today.

If you or a loved one has questions about "diminished capacity / actuality" or "insanity" in California, or if you just want to talk about the "Twinkie Defense", call our office for a free attorney consultation.  (714) 449-3335.  Ask for John.  We have extensive experience defending against all types of criminal charges in Southern California, including cases where the defendant's competency or mental health may be at issue.  

Thanks for reading.

Orange County Criminal Defense Attorney

Police Took My Stuff. How Can I Get it Back?

Police often seize property during investigations if they believe that the items are illegal to possess or that the property is evidence of a crime.

Of course, police have the authority to collect evidence for criminal prosecutions.  Citizens, though, have the right to be free from unreasonable seizures.  Individuals in the United States also have the right to Due Process before the government can simply take their property.  When these forces collide, courts use a balancing test to weigh the government's need for seizure vs. the individuals legitimate right to keep his stuff.

There are a few different legal procedures that need to be followed to get your stuff back, depending on what the item is, why it was taken, and how the criminal case resolved.

Evidence

If police seize some property that they intend to use as evidence in a criminal case, they generally get to keep it in an evidence locker until the case is resolved.  They will not give important evidence back to the defendant while the criminal case is still pending for obvious reasons -- the items may be necessary at trial to prove the DA's case.

After the case is resolved (by conviction, dismissal, acquittal, reduction, plea deal, etc.), the fun part begins.  When the case is over, then the items are no longer needed as "evidence".  If the owner wants his stuff back, then the government must either return it, or else make a compelling counterargument to convince a judge otherwise.  And there are a few good counterarguments.

Contraband

Obviously, the court will not order the police to return something that is illegal to possess.  Illegal weapons, for example, must be destroyed by law after a case is resolved.  The same is true for drugs, drug paraphernalia, and counterfeit goods.

These hearings get interesting when we don't agree on whether or not a particular item is technically "contraband".  Cases involving large loads of marijuana, custom-built firearms, knives and military antiques can require some complicated legal arguments.  It's amazing how many police, prosecutors and even judges don't understand these laws.  Police often seize legal weapons because they "look scary".  A good lawyer (like myself) can explain the relevant statutory and case law to the judge and help obtain a court order for the return of your property.

Forfeiture

If property is the "fruit of a crime" (it was earned through criminal activity) or if it was used in the commission of a crime, a court may order it forfeited.  If property is forfeited, the police get to keep it.  This has become a huge area of controversy lately.  Some police departments have become dependent on forfeiture actions to balance their budgets.  Perverse financial incentives drive police to focus their attention on crimes that tend to generate a lot of revenue (drug dealing), and to neglect dangerous and violent crimes that don't make money for the department.

The issue of forfeiture is usually addressed as part of a plea deal, before the case is resolved.  If police seized a large amount of money or valuable items during their investigation, the defendant might agree to forfeit his property in exchange for a lenient sentence.  This is especially common in cases involving poaching and illegal fishing.  Poachers and illegal fishermen usually possess a lot of expensive gear.  The Fish & Wildlife agents really want that gear.  In my experience, we can often negotiate favorable deals in poaching cases (hunting, fishing, diving, trapping, etc.) if you are willing to surrender some of your gear to the Department of Fish & Wildlife.  If you're not willing to forfeit your valuable gear, we can help you keep it.

Marijuana

Marijuana is legal in California, but it is also subject to many regulations and restrictions.  This commonly leads to situations where police find large, suspicious loads of weed and they don't know what to do.  If police seize your cannabis, call our office to discuss your options.

If your marijuana was taken by police, we can file the appropriate motions in court to ask a judge to order its return.  This may be risky, though.  By admitting that you are the owner of a large load of marijuana, you may be talking yourself into more serious trouble.  Talk to us before you talk to the police.

Firearms

Guns are even more complicated.  Before police will release firearms to their owner, cops have to determine whether or not the owner is actually eligible to receive them.  This requires a background check and some simple paperwork that must be run through the State Department of Justice in Sacramento.

If the owner is NOT eligible to possess firearms due to a criminal conviction, a restraining order, or an involuntary civil commitment, police will not release the weapons.  In that case, we can help the owner sell or transfer the firearms to some other person who is eligible to retrieve them.  This is a several-step process, but it can be done.

If you or a loved one has questions about retrieving property from the police anywhere in Southern California, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.

Thanks for reading.

Orange County Criminal Defense Lawyer

Getting (or Fighting) a Restraining Order Against a Neighbor

Intro to Civil Harassment:  When Neighbors Go Bad

California law allow individuals who have been the victims of harassment to seek the protection of a restraining order.  There are specific types of restraining orders and special procedures depending the relationship of the parties -- coworkers can file for "workplace violence" restraining orders, family members and exes can seek "domestic violence" restraining orders, etc.  Today, I want to specifically discuss restraining orders between neighbors.

Restraining order cases that arise between neighbors are usually based on allegations of "civil harassment" (rather than workplace or domestic violence).  Restraining orders that are based on civil harassment are cleverly called "Civil Harassment Restraining Orders".  They are filed and heard in the local branch of the superior court that is closest to where the parties live and where the harassment is alleged to have occurred.

To get a restraining order against a neighbor in California, the petitioner (the person who is seeking protection) must prove that he or she has been the victim of actual violence, credible threats of immanent violence, or "harassment".  The petitioner bears the burden of proving the case by "clear and convincing evidence".  "Clear and convincing" is a higher burden than the "preponderance of evidence" standard that applies in most civil cases (and lower than the "beyond a reasonable doubt" standard that applies in criminal cases).  It means what it sounds like -- the petitioner must present enough evidence to clearly convince the judge that the alleged harassment has occurred.

If the judge finds in favor of the petitioner, he or she can order the respondent to stay a specific distance away, not to contact the petitioner by any means (including over the internet, by phone, etc.), and to stop doing whatever the court finds to constitute "harassment".  Those orders can also protect other individuals who live with the petitioner, and even pets.

Harassment, Defined

Everyone knows what "violence" and "threats" mean, but "harassment" causes a lot of confusion.  In restraining order court, the judge is looking for something more than just behavior that irritates or annoys you, no matter how irritating or annoying that behavior might be.  The legal definition of "harassment" is:

• a course of conduct (not just a single act), 
• which is directed AT a particular person (not just some behavior that affects the petitioner),
• which serves no lawful purpose (more on this below),
• which would cause a reasonable person to suffer distress, and
• which does actually cause the petitioner to suffer distress. 

That means the conduct in question must be something that your neighbor has done TO you, not just something your neighbor has done that AFFECTS you.  A good example is illegal parking.  Your neighbor might violate every single ordinance in the book by constantly parking his cars illegally.  Maybe he leaves inoperable vehicles on the street for weeks at a time, leaking oil everywhere.  This conduct might affect you because it creates an eyesore and because your guests have nowhere to park.  It might even cause you to "suffer distress", but it is not directed AT you.  Since your neighbor is not doing anything TO you, illegal parking is not the basis for a restraining order.  You may have other remedies (e.g. calling the police or Code Enforcement, etc.), but a restraining order is not appropriate here, no matter how much your neighbor's illegal parking bothers or annoys you.  The same is true for neighbors who smoke on their own property, let their lawns grow 3 feet high or who build bonfires that aggravate your asthma.  Those things might be code violations and they might cause you to suffer distress, but they're not "harassment" because they're not targeted AT you.  

What about a neighbor who constantly calls the police to report every perceived infraction?  I'm talking about the nervous old lady who reports "loud parties" at 7:30 PM -- I'm talking about the self-appointed "neighborhood watchman" who has Code Enforcement on speed dial, like Wyatt Earp of the cul-de-sac.  What can be done if you've become the target of one of these vigilantes?  Unfortunately, not much, at least not in restraining order court.  Remember, to constitute "harassment", the conduct must serve "no lawful purpose".  Calling the police to report some perceived offense is a lawful purpose, even if that conduct is directed at you and it causes you to suffer distress.  The judge will never order someone to stop calling the police.  Eventually, the police might tell them to stop calling, or they might simply stop responding.  If the police determine that someone is filing reports that they know to be false, they can pursue criminal charges against the caller.  Again, though, a restraining order is not the appropriate remedy here.

Scope of Orders, and Their Limits

The court has wide power to "enjoin" (legally prohibit) someone from doing all sorts of things that it deems to be "harassment".  As mentioned above, the judge can order someone to stay away from you, your home, your workplace, your vehicle, your school, your children's school, your children's daycare, and any other place where the judge finds that harassment is likely to occur.

The respondent can be ordered not to contact you by any means, directly or indirectly.  That includes in person, by phone, text, mail, etc.  That even includes asking someone else to pass along a message to you, except through an attorney.

If the respondent violates any of those orders, he or she can be arrested for "contempt of court".  If some other person knows about the restraining order and helps the respondent violate it (by passing along an apology, for instance), that person can also be arrested.

The judge cannot, however, order someone to stop talking about you if you're not present.  If someone is spreading false, defamatory information about you, you may have a lawsuit against that person, especially if you can prove that you've actually been harmed by the lies.  Again, though, a restraining order is not the appropriate remedy.

Restraining Orders and Firearms

If a restraining order is granted, even temporarily, the respondent will be ordered to immediately surrender any firearms under his control to the local police or to a licensed firearms dealer.  The State Department of Justice will notify the court if the respondent has any firearms registered in his name, and whether or not those weapons have been accounted for.

If the DOJ's records indicate that the respondent may have guns that have not been surrendered, agents will visit the respondent's home and perform a "knock and talk".  Inspectors might ask about specific weapons, and they might ask permission to search the premises for the missing firearms.  The respondent is not obligated to let them in unless agents present a search warrant.  (NOTE:  Generally, any adult who is present at the time can give agents consent to a search.  If the husband refuses and the wife allows it, for instance, then agents have consent.  Make sure your family members understand this, and NEVER GIVE CONSENT TO A SEARCH!!!)

If the respondent / homeowner refuses to allow agents to search his or her home, and inspectors believe he is illegally in possession of firearms, inspectors might take their evidence to a local judge and request a search warrant.  The governor recently granted more funding to these regional teams of DOJ investigators.  They're going door-to-door daily, gradually clearing a backlog of "prohibited persons" and missing firearms.

If you are served with a restraining order and you are required to surrender your firearms, call our office to discuss your options.  If your weapons have great sentimental value, you may be able to legally transfer them to a friend or family member.  If they have great financial value, you may also be able to sell them for their fair market value.  You may also be permitted to store them for a longer period if you expect to recover them later.

Free Attorney Consultation

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

Thanks for reading.

Fullerton Restraining Order Lawyer

Weapons Law 101: The "Innocent Use" Defense

The "Innocent Use" defense is a legal argument that may apply in cases where someone is accused of possessing an illegal weapon.  To successfully raise the defense, the defendant must convincingly argue that the "weapon" found in his possession is not actually a weapon -- it's a tool used for some "innocent use".

Of course, many common items could be used as weapons, but that doesn't necessarily make them illegal to own or possess.  The prime example is a ball peen hammer.  A ball peen hammer could be used to crack the skull of a rival biker, or it could be used to shape metal.  If a biker is found with a ball peen hammer and he's charged with some weapons-related offense, he might successfully argue that the hammer isn't a weapon, it's a tool.  Hammers have innocent uses (like repairing motorcycles).  Bikers figured out this loophole years ago.  Today, the ball peen hammer is a symbol that is commonly used to identify "outlaw" motorcycle clubs.

Weapon?

The same logic applies to baseball bats.  Obviously, a baseball bat can be used as a brutal weapon.  It can also be used to hit baseballs -- an "innocent use".  If a baseball player is found with a bat and he is charged with the crime of possessing an illegal club, he should be able to defend himself by arguing that, in this context, his bat is not a "weapon".

The "innocent use" argument is a little more complicated than a lot of people realize, though.  In order to raise the defense at trial, the judge must first find that the object in question has some innocent use.  Think of the ball peen hammer and the baseball bat -- both of these items are commonly used for innocent purposes.  If the judge agrees that the item may possibly be used for some lawful activity, then the defendant may argue that his hammer is just a tool, or his bat is just a piece of sporting equipment.

But that's not the end of the story.  Just because your object has some innocent use doesn't mean that it's 100% legal to possess it at all times.  If the defendant raises the "innocent use" argument, then the prosecutor must prove beyond a reasonable doubt that the defendant intended to use the object as a weapon.  They may build their case with circumstantial evidence by considering the totality of the circumstances -- when, where and how was the defendant found carrying the item?  If the baseball player was arrested while leaving a baseball game and wearing a baseball uniform, then the context of the situation looks pretty innocent.  If a baseball player is driving around on a Saturday night with a bat behind the seat of his car, it looks less innocent.  If the jury believes that the baseball player intended to use his bat as a weapon, he can still be convicted.

Now, this is the nuance I wanted to explain regarding the "innocent use" defense:  if the item is clearly a weapon (brass knuckles, a cane sword, a baseball bat with a nail through it, etc.), the judge will not allow a defendant to argue "innocent use".  In that case, the prosecutor does NOT need to prove that the defendant actually intended to use the item as a weapon.  Intent is irrelevant.  When the item is clearly a weapon, then the DA only needs to prove that the defendant knew that it was capable of use as a weapon.

There is a common misconception that gets a lot of people into trouble here.  Many people falsely believe that they have a defense to weapons charges if they simply call some illegal weapon a "paperweight" or a "sculpture".  A quick search on Amazon will turn up page after page of brass knuckles mislabeled as "novelty items", "costume jewelry" or "for entertainment purposes only".  In California, those are not valid defenses.  If an object obviously looks like a set of brass knuckles, the judge will not allow the defendant to argue that they were actually something "innocent".  And remember, the DA doesn't even need to prove that the defendant intended to use his brass knuckles as weapons, only that the defendant knew that the item was capable of use as a weapon.

There are many possible defenses to weapons charges.  If you or a loved one has questions about possessing weapons in California, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.

Thanks for reading.

Fullerton Weapons Lawyer

Arrested in Catalina -- What to Expect

If you found this blog, you're probably one of the hundreds of tourists every year who "have too much fun" while visiting Catalina Island.  Hopefully, I can answer some of your questions and give you a better idea of what to expect.

The most commonly-charged offenses on the island include drunk in public, DUI, domestic violence, possession of drugs, assault / battery and fishing violations.

Alcohol-Related Violations

Alcohol-related offenses are treated especially harshly in Avalon.  Local police and prosecutors have really made a concerted effort to maintain their "family friendly" reputation, and they've decided that this includes bringing down the hammer on alcohol offenders.

In most California courts, an arrest for being "drunk in public" means a night in jail and a stern warning.  In Catalina, though, you're looking at probation, CalTrans labor or some other community service, fines, mandatory alcohol counseling or AA meetings, and whatever onerous terms they can think to impose.

And remember, golf carts are considered "vehicles" under California law.  If you drink alcohol or consume drugs before operating an electric cart, you can be arrested for DUI.  These types of cases are common on the island.

Fishing Violations

Fishing laws are also a minefield for visitors.  Catalina Island is surrounded by a checkerboard of "marine life protected areas".  These sanctuaries are not marked and wardens do not issue warnings.  If you drift across the imaginary line into one of the protected areas, agents from the Dept of Fish & Wildlife will issue citations.  They will board your boat and search your cooler for contraband species and undersized fish.  You will be criminally prosecuted for every ticky tacky offense that they uncover, regardless of whether or not you knew that you were breaking the rules.
Possession of unidentifiable fish fillets are a big violation that snares a lot well-meaning anglers.  If you clean your fish at sea, remember to leave a 1" square of skin attached so that wardens can identify the species.

Possession of abalone can also be a major headache for divers around Catalina.  The minimum fine for possession of a single abalone is $10,000.  Once all the mandatory fees and court costs are included, the minimum fine jumps to over $60,000 for a first offense.  That's the MINIMUM.  Luckily, we have some tricks for negotiating these cases down to less than the minimum in most cases.

Logistics

The tiny courthouse on Catalina Island is open every other Friday, weather permitting.  Most of the week, the building is dark and empty.  They do not store any files on site.  If you appear in court on a date when they were not expecting you, they will not be able to help you.

To schedule a court appearance, you (or your attorney) must appear at the courthouse in Long Beach and coordinate with the clerks and prosecutors there to add your case onto the Catalina calendar for a date that is convenient for all parties.  Failure to follow all the appropriate steps will result in a wasted trip.

To make matters even more frustrating, cases on Catalina are often delayed or filed sometime after the date listed on your citation.  When that happens, you might spend the time and money to travel all the way back to Catalina, only to find out that your case has been rescheduled for next month.  Your case will not simply be dismissed.

If you've been cited or arrested while visiting Catalina Island, a private attorney (such as myself) can attend your court hearings without you being personally present in most cases.  There's no sense in traveling all the way back to the island for a series of routine appearances.  Let me save you the time, expense and hassle by appearing for you.  I can receive copies of police reports, negotiate with the DA and work to secure the best outcome possible for your case.

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

Thanks for reading.

Catalina Island Lawyer

Are Cannons Legal in California?

Have you ever thought about building a cannon in your garage?  Me too.  Never mind why.

And that got me thinking about the laws in California.  Intuition says that building a cannon can't be legal, but I wasn't sure which specific law(s) a homemade cannon would violate.  Turns out, building a cannon in California potentially violates several laws.  There is a narrow path through this legal minefield, though.  If you follow a few key rules, you might not get arrested.  If you do get arrested, you might have a valid defense.  Maybe.

The first law you need be aware of is PC 18710.  That section specifically addresses "destructive devices".  The definition of a "destructive device" in California includes any cannon that shoots fixed ammunition.  It also prohibits explosive or incendiary ammunition.  Howitzers, mortars and modern artillery are illegal, but this definition does not seem to include traditional "cannons" loaded with black powder, as long as they do not fire prefabricated ammo (casing, primer and projectile in one "shell").

If your cannon uses black powder rather than "fixed ammunition", then it is not a "destructive device".  You're not out of the woods, though.  If your device fires any projectile (a golf ball, a potato, a can of soup, etc.), it may fall within the legal definition of a "zip gun".  A zip gun is defined in PC 17360 as any device that was not produced by a licensed firearms dealer and which expels a projectile by the force of an explosion.  Possession of a zip gun is completely prohibited and may be punishable by up to 3 years in prison.

So that leaves 2 options for Californians who want to build a cannon, but who also want to stay on the happy side of the law:

• If your device is powered by the force of an explosion (black powder), then it may NOT actually expel any projectile.  A signal cannon that makes a big BOOM may be legal.  If it launches golf balls, though, it is an illegal "zip gun"
• If your device is powered by some force other than combustion (compressed air or a spring-loaded propellant), then it may be permissible.  

Disclaimer:  this is a very abbreviated synopsis of the law in California.  Even if your device is technically (or arguably) legal to possess, there are many other laws that prohibit "reckless" or "malicious" use of explosives, use of explosives with intent to intimidate, or any use of explosives that results in death or bodily injury.  There are also exceptions for antique cannons built before 1899, but those cases are obviously rare.  These laws are complicated and the nuances are not interesting enough to discuss here.  

If you or a loved one is accused of possessing a destructive device or a zip gun, or if you just have questions about weapons in California, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.  

Thanks for reading. 

Fullerton Weapon Lawyer

Brass Knuckles in California

Image from DefenseDevices.com

California has notoriously restrictive laws regarding possession of weapons, so it shouldn't be any surprise that brass knuckles are completely prohibited in the Golden State.

That prohibition includes possession, manufacture, importation and sales of any type of "hardened knuckles", whether they're made of metal, wood, composite (plastic) or even paper -- that's right, section 16680 of the California Penal Code specifically bans "any device or instrument made wholly or partially of wood or paper products", if that object meets the other criteria of hardened knuckles.

And the definition of "hardened knuckles" is pretty broad.  Basically, it includes any device used for offense or defense of the hand, either to protect the hand from injury when striking, or to increase the injury inflicted upon another.  On its face, this seems to include some common self-defense tools that are freely available on Amazon, like these kubaton keychains:

Item described on Amazon as "EIOU Self-Defense Key Chain"

The penalties are no joke, too.  If the weapon is made of some material other than metal, then the offense is a misdemeanor punishable by up to 6 months in jail and a fine of $1,000.  If the device is made wholly or partially of metal, then the offense can be treated as a felony, with a maximum prison sentence of 3 years.

There are many possible defenses to the charge of possessing an illegal weapon.  One common argument is that the item is not a weapon, it's a tool for some other "innocent use".  Think of motorcycle gloves with protective metal over the knuckles, or a ring that covers more than one finger.  Those items fit the definition of "hardened knuckles", but they're also commonly used for purposes other than as weapons.  If the judge determines that the object has some innocent use, then the DA must prove that the defendant actually intended to use the item as a weapon.

This argument is a little trickier than some people understand, though.  To successfully raise the "innocent use" defense, your lawyer must first prove that the object HAS some innocent use.  If the object is plainly a weapon -- and designed solely for use as a weapon -- then the defense is not available.  In that case, the prosecutor only needs to prove that the defendant knew that the object was CAPABLE of use as a weapon.  The DA does NOT have to prove that the defendant INTENDED to use the item as a weapon.  This is a nuance that trips a lot of people up.  There's a common misconception that brass knuckles are legal if you simply call them a "paperweight", or if you claim that they have some other innocent purpose.  If the object is obviously a set of brass knuckles, then the judge will not allow you to raise the "innocent use" defense.

The "self-defense" argument is another one that trips up a lot of my clients.  To successfully claim that you possessed an illegal weapon in self-defense, you have to prove some very specific things:

1. You reasonably believed that you or someone else was in IMMINENT danger of death or of some serious bodily injury.  "Imminent" danger means immediate danger, not some future threat of harm, no matter how great or likely the harm is believed to be. 
2. You reasonably believed that the immediate use of force was necessary to defend against that danger.
3. The weapon became available to you without planning or preparation on your part.  You didn't plant the weapon there in case you needed it later.  
4. You possessed the weapon temporarily, and not for any period of time longer than was necessary for self-defense. 
5. No other means of avoiding the danger was available, AND
6. Your use of the weapon was reasonable under the circumstances. 

Obviously, these criteria describe a very specific and unlikely scenario.  I talk to a lot of clients, though, who get into trouble because they possess weapons "for self-defense".  Unfortunately, I have to break the news to them that their situation does not qualify for a "self-defense" argument.  If you keep brass knuckles in your car "just in case", then you're violating the 3rd rule.  It's not a defense to argue that you possessed brass knuckles because you've been attacked before, or that you work in a dangerous area.  As you can see, the "self-defense" argument is more complicated than some people imagine.

It's also not a defense to argue that you purchased the item on Amazon, therefore it must be legal.  Amazon is full of items that are illegal to possess in California.  The seller might be outside of the state and beyond the reach of California law, or they might simply be a low enforcement priority.  Either way, you may be arrested for possessing an item that you purchased openly on a reputable site like Amazon or Ebay.

The law regarding "hardened knuckles" is especially frustrating because it is enforced so unevenly.  A police officer might spot your kubaton keychain (pictured above) and not say anything because it's not worth his time, or because he personally supports a woman's right to defend herself.  You might carry the item aboard an airplane 100 times without any issue.  But one day, a security screener at a public event might spot the object, recognize it as a "weapon", summon police and have you cited or arrested.  It's not right and it's not fair, but it is common.

If you or a loved one has questions about "hardened knuckles" or any other weapons in California, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.

Thanks for reading.

Fullerton Weapons Lawyer