The Latest from the Catalina Courthouse

It's been a wild year in the Los Angeles County judicial system, especially on Catalina Island.  

The COVID shut-down(s) completely crippled the island's economy, where small bars and restaurants rely on the steady flow of weekend tourists and cruise ship passengers.  Avalon was a ghost town for months before local authorities approved outdoor dining plans and other safety protocols.  

The crowds are finally returning to the island and the town of Avalon is starting to bustle again, just in time for the seasonal slow-down.  From the outside, Catalina looks a lot like it did in 2019.  

From a local lawyer's perspective, though, the Catalina court system is still a disaster.

Last year, Los Angeles County voters ousted Jackie Lacey as their District Attorney and elected George Gascon to replace her.  Gascon had previously earned a reputation as a "progressive" prosecutor during his tenure as the DA of San Francisco.  Immediately upon taking office in LA, he implemented a sweeping new policy directive that completely reprioritized his department's responsibilities.  By largely ignoring crimes of "vagrancy" and low-level "quality of life" offenses, he redirected prosecutors in his office to focus on a handful of issues that he determined to be more pressing.  Possession of drugs, disorderly conduct, being drunk in public and low-level theft offenses now take a distant backseat to crimes like domestic violence, DUI, and "environmental" offenses (including violations of the Fish & Game Code).  

Gascon's new policy directive is not written in stone, though.  It still specifically allows prosecutors to file "low-priority" charges when the facts call for them (e.g. when the offender has a previous history of similar offenses, etc.).  It also requires that prosecutors who file such low-priority charges must seek the approval of their branch supervisor.  That last part is what makes the Catalina Courthouse unique.  

The Catalina Courthouse only hears misdemeanors.  Any felony case arising on the island is immediately sent to Long Beach.  Most misdemeanor courtrooms in Los Angeles County are staffed by junior prosecutors.  These baby lawyers are fresh out of law school.  They're usually not authorized to make big decisions, like whether or not to exercise discretion in dismissing a case or deviating from the boss's directives.  If the boss says not to file any more "drunk in public" charges, they may not do so without the approval of their branch supervisor.  Consequently "drunk in public" filings are way down throughout Los Angeles County this year.  

At the Catalina Courthouse, though, the lone prosecutor who is responsible for filing charges is the branch supervisor.  Gascon's new policy directive is only a "suggestion" for her, because she has the authority to approve any deviation that she sees fit.  On the bright side, she is just as backlogged as every other prosecutor in Los Angeles.  Catalina is experiencing massive filing delays right now and they aren't adequately staffed to catch up any time soon.  The laws of economics dictate that many low-level offenses are simply falling through the cracks.  Meanwhile, the DA's office is still aggressively pursuing its priorities.  Fishing-related offenses are at the top of the list -- including both recreational and commercial violations.  The LADA is also focusing its resources on domestic violence charges, "battery on a peace officer" and DUI -- including golf cart DUI cases that are so common on the island.  And as I mentioned above, the prosecutor in Catalina is still pursuing low-level theft and shoplifting offenses, regardless of her office's new policy directives.  

Our office is still appearing regularly at the Catalina Courthouse. and we're still getting great results for our clients.  We appreciate the unique nature of cases that arise on the island and we understand how to navigate the court system.  

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

Thanks for reading.  

Possession of Drug Paraphernalia in Orange County

HS 11364 prohibits the possession of drug paraphernalia in California.  It is the most commonly-charged misdemeanor offense in Orange County.  

The law specifically says that it is unlawful to possess an opium pipe or any "device, contrivance, instrument or paraphernalia" used to unlawfully smoke or ingest a number of controlled substances that are listed individually in other parts of the California Health & Safety Code.  That includes straws, spoons, pipes, foil, and any virtually anything else that is used to consume meth, cocaine or heroin.  It does not include pipes, bongs or papers used to smoke marijuana.  

Starting this year, the law includes an exception for syringes and hypodermic needles that are used solely for personal use.  The exception will remain in effect until January 1, 2026.  This temporary carve-out was intended to help slow the spread of blood-borne diseases like HIV that are transmitted by sharing needles.  

To be convicted of violating HS 11364, the DA must prove that: 

• The defendant possessed the item
• The defendant knew (or should have known) that he possessed the item
• The defendant knew that the item was drug paraphernalia
• The defendant intended to use the item to ingest illegal drugs

There are many possible defenses to HS 11364 charges.  Even though the law sounds pretty simple on its face, each element of the offense can be tricky for prosecutors to prove, depending on the circumstances.  

The most obvious and common defense to any possession charge is police misconduct (i.e. an improper search).  If the police violate a defendant's privacy without probable cause, consent or a valid warrant, then anything that they discover may be suppressed in court.  

Prosecutors also need to prove that the item in question is actually contraband.  Many common, household items that are used to ingest drugs also have valid, innocent uses.  Of course, a straw can used to snort meth or cocaine, but it also be used to drink a soda.  It's not illegal to possess a straw unless the totality of the circumstances establish beyond a reasonable doubt that the defendant intended to use the innocuous object for some illegal purpose.  Even drug users can legally use straws to drink soda, so context is always important. 

Even if the item is clearly drug paraphernalia, prosecutors must prove that the defendant knew what it was and that he knew he was in possession of it.  If a crack pipe is found under the seat of a car, it may be difficult or impossible to prove that the driver was aware of it.  

HS 11364 is a misdemeanor.  A conviction can carry up to 364 days in county jail.  Luckily, a qualified, local criminal defense attorney can usually negotiate some alternative to actual custody, depending on the defendant's criminal history and the specifics of the offense.  

Orange County courts offer a variety of "diversion" or "deferred entry of judgement" (DEJ) programs.  In addition to the old PC 1000 and Prop. 36 options, the OC District Attorney's Office is pretty flexible with tailoring DEJ programs for individual defendants.  Under any diversion deal, a defendant is ordered to complete various terms and to remain law-abiding for some agreed-upon period of time.  Once the defendant completes his end of the deal, the case is dismissed like it never happened.  

Terms of DEJ can include providing a DNA sample for the state's database, attending some form of drug counseling or treatment, performing community service or labor, taking mandatory classes at Santa Ana Community College, paying a fine or making a "donation" to a victims' charity, or some combination of these things.  The period of time that the defendant must wait and remain law-abiding before earning the dismissal can also range from 3 months to 18 months.  These terms are negotiable.  

In some cases, the DA may insist that the defendant plead "guilty" before entering the DEJ program.  The plea is held in the court file, but it is not entered into the record and the defendant is not sentenced.  Instead, sentencing is postponed until some future date.  If the defendant complies with all terms of DEJ, then the case is dismissed at the time of sentencing.  

In California, a defendant is not considered to be "convicted" of a crime until he is sentenced.  Since defendants who successfully complete DEJ are never sentenced, they are not considered to be "convicted" of any crime under California law.  Note: entering a "guilty" plea may have immigration consequences, even if a defendant is never actually "convicted" in the eyes of the California court.  If you are not a US citizen, make sure that your attorney is aware of that fact before he or she starts the process of hammering out the terms of a DEJ deal.  

If you or a loved one has been arrested or cited for possession of drug paraphernalia, call our office for a free attorney consultation.  (714) 449-3335.  Ask for John.  

Thanks for reading.  

Fullerton Drug Paraphernalia Lawyer

New CA Law Will Allow Many Offenders to Avoid a Criminal Record

California recently passed a new law that will make many low-level offenders eligible for pre-trial diversion programs.  Defendants who complete one of these programs will be eligible to have their cases dismissed and the records of their arrests completely sealed from public view.  This is going to be a game-changer for the way that most petty crimes are prosecuted.  

I've previously written on this blog about why diversion might not be the best option for everyone (in some cases, it may actually delay the dismissal of charges, but that's a long story).  Today, I want to discuss some of the possible benefits of participating in a pretrial diversion program.  I'll also get into the criteria for eligibility and a broad overview of the process.  

PC 1000 and the History of Diversion

Until this year, most diversion programs were governed by section 1000 of the California Penal Code (AKA, "PC 1000").  That law created a process by which some drug offenders could work to earn an eventual dismissal of their charges.  The program was limited to defendants accused of drug possession for personal use.  Participants in the PC 1000 program were required to undergo drug treatment and to remain law-abiding for 18 months.  Upon successful completion, their cases would be thrown out and the records of their arrests sealed for most purposes.  

At the time of its adoption, PC 1000 was revolutionary.  It marked a major shift in the criminal justice system away from punishing drug users and toward a model that treated addicts as people who were sick and needed help.  

PC 1000 was intended to catch defendants in the early stages of their addictions.  It sought to intervene with treatment before drug problems spun out of control.  To that end, it was fairly restrictive with its criteria for eligibility.  To qualify for the program, defendants had to show that they had no felonies or drug-related convictions in the 5 previous years and that there was no evidence that they had committed any crime other than one for which PC 1000 was specifically authorized.  

The early drug diversion programs performed miracles for some participants, but the rules of eligibility were so restrictive that many people who needed help the most were excluded.  In response, the state legislature and local county courts experimented various new programs in the years that followed.  These "community courts" or "collaborative courts" focused specifically on other underserved segments of the population, including veterans, homeless people, and individuals suffering from untreated mental health issues.  By "diverting" those people into treatment and social services, courts found that they were able to reduce recidivism and break the cycles that contributed to crime in the first place.  

Big Changes for Diversion: PC 1001.95

PC 1000 and the various community court programs that followed were hugely successful in preventing and reducing crime.  In recognition of that success, the legislature recently voted to dramatically expand the availability of diversion to other, non drug-related offenses.

Since PC 1001.95 took effect on January 1, 2021, judges in California have been vested with the authority to grant diversion in a huge array of cases.  Under the new law, diversion may be available for virtually any misdemeanor, with a handful of exceptions (certain Vehicle Code violations including DUI, anything that requires registration as a sex offender, domestic violence and stalking). 

Previously, the decision to grant diversion was entirely up to the prosecutor.  A judge could deny diversion if he or she felt that it didn't serve the interests of justice, but a judge could not offer it over the prosecutor's objection.  PC 1001.95 turns that on its head.  

PC 1001.95 gives judges discretion to grant diversion, even over the prosecutor's objection.  It also allows them to craft terms of diversion to fit each specific defendant.  Defendants may be ordered to complete classes or counseling to address the underlying issues that contributed their offenses.  That might include anger management therapy, parenting classes, substance abuse counseling, lectures about the harms caused by shoplifting, etc.  Defendants must also pay restitution for any damage caused by or reasonably related to their crimes. 

Judges also have discretion to determine the total length of each defendant's diversionary time periods (during which defendants must remain law-abiding in order to earn a dismissal).  The law allows for periods up to 24 months, but it does not specifically require the court to set terms at that length.  Theoretically, a judge could agree to dismiss charges after 1 month (or 2, or 6, or any amount of time up to 24 months).  The length of diversion is going to be a major factor to consider before accepting any deal.  

Upon completion, the case will be dismissed and the record of the arrest completely sealed for most purposes.  The only time that a defendant would ever have to disclose the arrest would be in response to a direct question in an application to become a peace officer.  

There are still a lot of wrinkles to work out, and we all have questions about how the new procedures will work in practice.  Local judges have been meeting for the past few weeks to discuss the details.  Attorneys are waiting to hear whether or not the court will require a formally noticed, written motion before defendants may be granted diversion, or if judges will hear "pitches" in chambers conferences.  If they do require a written motion, will the court publish specific forms that we're expected to use?  Or are we supposed to draft our own briefs?  What will the time frame be for the prosecutor to object and to file their own written "Response"?  Will defendants have an opportunity to file a written "Answer" to the prosecutor's Response brief?  Will cases be assigned to a specific department to hear these pretrial motions?  Check back for news as it becomes available.  

If you or a loved one has been accused of a crime in Orange County or surrounding areas, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.  

Thanks for reading.  

Orange County Criminal Defense Law

NOW is the Time to Clear up Old Warrants

If you have an old warrant that's been following you around or a criminal case that you've been neglecting, NOW is the time to speak with a local attorney.  The COVID crisis has caused havoc in Southern California courts, and that chaos can be good news for criminal defendants.  

Bail Reductions / OR Releases

The Coronavirus has been spreading completely out of control inside the local jails.  The sheriffs in Orange County and Los Angeles have been forced to reduce their inmate populations.  This means that many low-level and non-violent defendants are being granted "O.R." releases rather than being held in pretrial detention. 

People who would have previously been required to post thousands of dollars in bail are now simply being released on their promise to return.  

Alternative Sentences

Since the jails are under so much pressure to reduce their crowded conditions, many people who show up to begin their sentences are being immediately released from custody.  Depending on the county and individual circumstances, some defendants are being redirected to "secure electronic confinement" (house arrest) or a work release program (picking up trash, etc.), but many are simply being released for "time served".  

In California, defendants may request to satisfy their fines by serving jail time instead.  Usually, I don't recommend this.  Paying some money is almost always preferable to sitting in a jail cell if you have the choice.  Under the current conditions, though, I have been advising my clients of this option.  Realistically, these defendants will be immediately released from custody and thousands of dollars in fines will be deemed "satisfied". It's one thing to consider.

Backlogged Courts

Cases have been piling up since last March.  Judges and prosecutors are facing the crunch.  They are becoming desperate to resolve criminal matters as the courts get more and more hopelessly backlogged.  The DA simply doesn't have the time, resources or manpower to dig in their heels and fight over every little issue, the way they used to.  Consequently, we're getting better dispositions for our clients than ever.  

"977" Felony Appearances

PC 977 allows attorneys to appear in court without their clients present in most misdemeanor cases.  This is a major convenience for many people.  "977" authority means that defendants don't have to miss a day of work for a routine DUI hearing and they don't have to worry about their kids' transportation while the lawyers haggle over the terms of a shoplifting deal.  977 authority is especially valuable when a defendant lives out of the area.  The cost of traveling back and forth to court can be prohibitive.  Hiring a local attorney to handle the matter is often a cost-saver in the long run.  

Thanks to the pandemic, courts have temporarily extended 977 authority to felony matters.  As part of their ongoing effort to reduce crowding inside the courthouses, judges now allow attorneys to appear for most felony hearings without their clients being personally present.  This special rule will not last forever, but it will be a huge convenience for anyone who takes advantage of the opportunity now.  

New Opportunities for Diversion

Since 1/1/21, judges in California have been given the authority to offer "diversion" in most misdemeanor cases, even over the DA's objection.  

When diversion is granted, the defendant is given an opportunity to complete various terms before he is convicted of anything.  The terms might include AA meetings, anger management counseling, a class about the harms of shoplifting, etc.  If the defendant returns to court with proof that he has done whatever the court ordered, then the case is dismissed entirely.  If the defendant fails to complete the terms, then the case simply reverts to the traditional criminal justice system.  

Since courts are under such pressure to resolve cases and to clear up their backlogs, some judges have been offering generous diversion deals.  

If you or a loved one has an outstanding warrant or a criminal case that's been neglected, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.  

We can also perform a free warrant check to see if you have any open matters. 

Thanks for reading. 

Fullerton Criminal Defense Attorney

Two New California Laws Upend the Justice System

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

1-Year Cap on Misdemeanor Probation

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

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

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

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

Judges Have New Powers to Grant Diversion

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

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

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

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

All Together Now

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

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

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

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

Thanks for reading. 

Fullerton Criminal Defense Attorney