Expunge Your Record with OC's Best

There are plenty of lawyers in Southern California who are perfectly capable of preparing and filing your expungement petition, but there can only be one "best".   When it's time to clean up your criminal record, don't settle for "good enough".  Instead, call the firm that has the experience to get the job done quickly, affordably, and correctly the first time.

What Does an Expungement Do?

California law provides several different options to clean up old criminal records, to reduce felony convictions to misdemeanors (and misdemeanors to infractions, in some cases), and to seal arrest records from public view.  We offer free consultations to help decide which option is best for each prospective client. 

A traditional expungement results in a case being dismissed after the defendant has completed serving all penalties.  If the defendant has done so and does not have any other open or pending cases, then he or she is automatically entitled to have the case dismissed.  The old charge may still show up on some official records, but employers may not use expunged cases to discriminate against job applicants.  

In the past couple of years, the legislature has expanded the law to allow expungements in cases that were not previously eligible.  If you've been denied in the past, call us to see whether or not you might be eligible to reapply.  

Our Advantages

Our firm's small staff and low overhead help keep costs down for our clients.  In most cases, we can successfully process expungement petitions for a fraction of what bigger firms charge.  We even offer easy payment plans to fit any budget.  

When you hire us to perform legal services, you're not paying for our bloated advertising budget or lavish amenities; you're paying for the results that we consistently deliver.  

Each of our clients receives one-on-one, personal attention from the attorney who will be responsible for handling their case to completion.  We never hand off important work to junior associates or outsource our cases.  If you have a question, call or email any time for a prompt response.  

We work quickly and we work efficiently.  Our office has the experience necessary to prepare expungement petitions, file them with the court, and serve them on the DA within 24-48 hours after we're hired.  Depending on the court's backlog, expungement orders may be granted as soon as 3 weeks after they're filed.  

Personally, expungements are some of my favorite cases to handle.  I've heard other attorneys complain about the tedious paperwork, but I find expungement petitions to be rewarding.  As a criminal defense attorney, it's always great to call a client when I have some good news to share.  

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

Thanks for reading. 

Orange County's Best Expungement Lawyer

The Latest Developments in California Gun Laws

I've previously written on this blog about California's complicated relationship with firearms and the Second Amendment.  The Golden State has a well-deserved reputation for its progressive policies, and its strict approach to gun control is no exception.  Over the past decade, the state has enacted a slew of legislation, aimed at restricting access to entire classes of popular weapons.  This blog post will provide an overview of the most noteworthy recent changes to California's gun laws, and what those changes mean for gunowners. 

Ban on "Assault Weapons"

AB 1135, passed in 2016, expanded the definition of an "assault weapon" to include some of the most popular firearms in use today.  Virtually any semi-automatic, centerfire rifle with a removable magazine now falls within the class of these highly-restricted weapons.  The same is true for pistols with magazines located outside of the grip.  

In 2017, the Dept of Justice adopted an online system and required registration of all "assault weapons" in the state.  Firearms that were lawfully registered before the deadline are grandfathered in, but they can never be transferred to any other owner, even upon death. 

Enhanced Background Checks

All firearm transactions in California must be conducted through a licensed dealer, even private party transfers. 

In 2016, California voters approved Prop 63, making it the first state in the country that required individuals to pass a background check before purchasing ammunition. 

High-Capacity Magazines

Prop 63 also banned the possession and sale of "high capacity" magazines (magazines that hold more than 10 rounds -- considered by some to be "standard capacity" magazines).  This particular law has bounced back and forth through the appeals process, where it was briefly suspended, then upheld, then finally overturned by the US Supreme Court.  

Some of us remember "Freedom Week" in 2017, when Judge Benitez placed the law on hold and temporarily allowed the importation of high-cap mags.  The 9th Circuit Court of Appeals reenacted the ban before the Bruen decision turned everything on its head.  More on that below.  

The status of California's high-cap magazine ban is up in the air today.  We can expect a lot more litigation before this one is finally worked out.  Check back for developments as they become available. 

"Red Flag" Laws

California's "red flag" laws allow family members and law enforcement to request the temporary removal of firearms from individuals who pose an immediate threat to themselves or others. 

Gun Violence Restraining Orders (GVROs) reflect an attempt to strike a constitutional balance between public safety and respect for the individual's due process rights.  To help maintain this balance of interests, the legislature chose to limit both the duration of these orders and the standing to initiate a petition.  

"Standing" (the right to file a request for a GVRO) is limited to close family members and police officers.  You cannot, for instance, file a GVRO against a neighbor or a coworker.  Allowing strangers to initiate GVRO requests would open the floodgates to abuse and would jam the courts with frivolous filings.  

When a request for a GVRO is filed, the judge may immediately grant a temporary order if he believes that some extreme risk of harm exists.  If a temporary order is granted, the prohibited individual has the right to appear before the court within 21 days, where he will have an opportunity to oppose the request.  

Ban on "Ghost Guns" 

The California legislature passed AB 879 in 2019, banning the possession and manufacture of homemade "ghost guns".  

This law requires individuals to obtain a unique serial number and undergo a background check before manufacturing a firearm, and also to register any unserialized firearms in their possession. 

Safe Storage Requirements

California enforces strict safe storage requirements through Assembly Bill 1968, implemented in 2020.  This law mandates that firearms be stored securely when not in use.  Individuals who fail to adequately secure their weapons may be held civilly and criminally liable if the weapons is accessed by an unauthorized person and used to commit a crime. 

Bruen -- The Wild Card

Since the Supreme Court's ruling in Bruen last year, California's vast gun control laws may rest on shaky legal ground.  That ruling completely upended the way that courts analyze Second Amendment challenges.  Since the court announced this groundbreaking shift, gun control laws have been falling like dominoes all around the country.  

Bruen created a new test for the courts to apply when lawsuits challenge the constitutionality of some gun control law.  Previously, the state was only required to prove that the proposed law served to protect an "important" government interest (i.e., preventing gun violence) to pass constitutional muster.  If a limit on magazine capacity might reduce the lethality of mass shootings, then that was enough and the law was allowed to stand.  

In Bruen, though, the court struck down this old test.  Instead, it ruled that lower courts should look to historical precedent to decide whether or not some modern gun control law is analogous to a rule that existed at the time of the Founding (or if the Founders would have likely approved of the proposed restriction).  If the law in question has no historical analogue, then it is unconstitutional.  

The new Bruen test has been interesting to watch in practice.  What did the Framers think about AR-15 rifles?  Would they have allowed local states to prohibit or restrict their ownership?  The AR-15 obviously did not exist at the time of the Constitution's adoption, but individuals back then generally possessed the same weapons that were available to the army.  What about owning canons?  Or carrying weapons within city limits?  These are all questions that will probably come before the courts in the near future.  

Conclusion

Gun laws in California are complicated and constantly changing, but there are many defenses available to individuals who are accused of violating them.  Our office has extensive experience defending against all kinds of weapons-related charges.  

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

Thanks for reading.  

Orange County Gun Lawyer

What is the Statute of Limitations for Arrest Warrants in California?

The "statute of limitations" refers to the period of time after the commission of a crime in which prosecutors must file criminal charges, or else be barred from doing so.  The clock starts ticking as soon as the crime occurs.  If time expires before DA files their case, then the defendant is untouchable.  He has an "affirmative defense".  If criminal charges are filed some time after the statute of limitations has lapsed, the defendant's attorney will simply demonstrate that the complaint is defective and must be dismissed.  

Keep in mind, though, that the statute of limitations has nothing to do with the period of time in which the defendant must be brought to court after the commission of a crime.  It only refers to the period in which the DA must file charges.  That causes a lot of confusion.  

Here's a common situation:  A person is cited or arrested for some minor crime.  He shows up for court, but the DA has not filed any charges yet, so he is told to go home.  After a few months-- but still within the statute of limitations-- the DA eventually gets around to filing the case.  They mail a "Notice to Appear" letter to the defendant's last known address.  The defendant never receives the letter, so he never appears for his court date.  A warrant is issued for his arrest.  Several years later, he is surprised to learn that he has an active warrant.  

The SoL would not be the appropriate defense here because prosecutors DID file charges within the proscribed time limits.  A warrant was issued when the defendant failed to appear in court, and the warrant has remained outstanding ever since.  The warrant will never simply go away on its own.  There is no statute of limitations for arrest warrants in California.  

Even if the SoL doesn't apply, though, a defendant in this situation has another option.  When there has been some long delay between the filing of charges and the defendant's first court appearance, the issue is not with the statute of limitations.  Instead, the question is whether or not the defendant's constitutional right to a speedy trial has been violated.  

Both the US Constitution and the California State Constitution guarantee the right to a "speedy and public trial".  If the government filed criminal charges against some person and then allowed those charges to hang open for a prolonged period time without making an adequate effort to bring that person to court, then the defendant might have a viable defense based on this unconstitutional delay.  

Speedy trial violations are challenged with Serna motions.  The judge will weigh a lot of factors to decide a Serna motion.  The first consideration is the length of the delay.  Short delays might be excusable.  The longer the delay has been, though, the harder it will be for the DA to overcome.  6 months is usually the threshold where a delay starts to drift toward "unconstitutional".  

The next big consideration in any Serna motion is always the blame for the delay.  If the defendant knew about his court appearance and chose to flee, he will have a hard time convincing a judge that his rights have been violated.  If the DA mailed their "notice to appear" letter to the wrong address (or failed to send a letter at all), the blame might lie with prosecutors.  Several years ago, I had a case in which the DA mailed their notice to my client's home in New Orleans, LA.  For some reason, the envelope was addressed to "New Orleans, CA", so my client never received it.  That Serna motion was granted and all charges were dismissed.  

The final consideration in a Serna motion is any prejudice caused by the delay.  "Prejudice" can be actual or presumed.  If witnesses have died or evidence has been lost, the defendant might be able to prove actual prejudice.  He cannot properly defend himself due to the amount of time that has elapsed.  When the delay has been over a year, the court will also presume some prejudice, just based on the fact that memories fade and that the defendant has been saddled with criminal charges for an undue length of time.  Even if the defendant cannot point to any specific lost piece of evidence, the prosecutor will bear the burden of proving that no such presumed prejudice exists.  

Sometimes, arrests warrants are issued after the defendant has already make a court appearance in his case.  Maybe he showed up for the first hearing or two, then stopped attending.  In those cases, neither the SoL nor speedy trial rights apply.  Any warrant will remain active until the defendant shows up to address it.  The same is true for warrants issued after conviction (probation violations, etc.).  The defendant may have other viable defenses based on missing witnesses, lost evidence, fading memories, etc., but he has no statutory or constitutional right to have the case tossed.  

If you or a loved one has an arrest warrant in Orange County, Los Angeles, Riverside or San Bernardino, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.  

Orange County Warrant Lawyer

Fight Your Domestic Violence Case with the Right Lawyer

Domestic violence charges in California can carry significant penalties.  If you or a loved one has been arrested on suspicion of domestic violence, hiring the right attorney can make all the difference.  Our office has been successfully defending against all types of domestic violence charges since 2009.  

What is Domestic Violence?

Domestic violence is defined by section 6211 of the California Family Code as abuse committed by / against people who are having or who formerly had a romantic relationship (married or dating), people who live or lived together as partners (not just roommates), and people who have a child together.  It also includes abuse between siblings, parents and grandparents.  

The most commonly charged domestic violence offense in California is probably PC 243(e)(1), commonly known as "domestic violence battery".  To be guilty of violating PC 243(e)(1), the prosecutor needs to prove that the defendant made some harmful or offensive bodily contact with the victim, and that the parties meet the criteria described above.  "Harmful or offensive bodily contact" can include things like pushing, slapping, etc.  

If the victim is injured, prosecutors can raise the charges from 243(e)(1) to 273.5, "inflicting injury on a spouse or cohabitant".  More on that below.  

Contrary to its name, "domestic violence" encompasses some crimes that are not necessarily "violent".  Vandalism, for instance, can be treated as domestic violence.  It also includes things like child neglect, violating a domestic violence restraining order, and making harassing phone calls, if the DA can prove that the crime involved "abuse" by / against a family member.  

Penalties for Domestic Violence in California

Domestic violence battery (PC 243(e)(1)) is a misdemeanor, punishable by up to 1 year in jail and a fine of $2,000.00.  Once the court's mandatory "costs and fees" are tabulated, that $2,000.00 fine is a lot closer to $6,000.00

Inflicting injury on a spouse / cohabitant (PC 273.5) is a wobbler, meaning that it can be treated as a misdemeanor or a felony, depending on the circumstances.  If the charge is filed as a misdemeanor, the maximum penalty is 1 year in jail and a fine up to $6,000.00 (more like $30,000.00, with costs and fees).  If prosecutors elect to treat the charge as a felony, the maximum punishment is 4 years in prison for a first offense.  Penalties go up for repeated violations. 

Anyone who is convicted of violating PC 243(e)(1) or PC 273.5 must attend and complete a 52-week, court-approved anger management counseling program.  They must also complete at least 8 hours of community service.  Other domestic violence-related offenses might only require a 10-12 hour course of anger management counseling.  

For many people, the most significant consequence of a domestic violence conviction pertains to gun rights.  Any person who is found guilty of violating PC 243(e)(1) or 273.5 will be banned from possessing firearms and ammunition for life.  

Can the Victim Drop the Charges?

In most domestic violence cases, the alleged victim wants to drop the charges.  Once things cool down, she decides that the situation was blown out of proportion and she does not want to see her husband prosecuted over a little argument.  Unfortunately, it's not up to her.  The decision to prosecute rests with the DA.  They alone file charges, and they alone decide when / if to drop them.  

If prosecutors believe that they can win a conviction without the victim's cooperation, they will charge ahead.  Often, they don't need the victim's testimony to build a solid case.  They might have a 911 recording in which the victim describes what is happening as it happens.  The defendant might be clearly audible in the background of the recording.  Other witnesses might have seen what happened and given statements to police.  If the victim spoke to officers at the scene, then her words were probably recorded by body-worn-cameras.  Police probably took photos of any injuries and damaged property.  Even if the victim refuses to testify against her husband, the DA can simply use the evidence to tell their story. 

If an alleged victim really wants to help the defendant, the best thing that she can do is to cooperate with his lawyer.  A qualified criminal defense attorney (like myself) understands the rules of evidence and what it takes to make or break a case.  Always consult with counsel before speaking to police or prosecutors.  

Often, witnesses statements contained in police reports are wildly inaccurate, incomplete, or out of context.  As written, the reports might give a completely false picture of what actually happened.  We can help cooperative victims and witnesses prepare written statements to clarify important details in the police reports, correct any mistakes, and add context so the court better understands the truth.  

EPOs, CPOs and DVROs

Domestic violence cases may also involve Emergency Protective Orders (EPOs), Criminal Protective Orders (CPOs), and Domestic Violence Restraining Orders (DVROs).  Each of these orders can potentially do the same things, but they are issued under different circumstances.  Typically, the restrained party is ordered to stay some distance away from the protected person, as well as that person's home, school, workplace, vehicle, etc.  

An EPO is usually issued at or near the time of the arrest.  These are issued by judges at the request of the police.  They can remain in effect for up to one week.  

If the defendant remains in custody after his arrest, he will be brought to court for his arraignment within about 3 days.  When he makes his first court appearance, the judge will issue a CPO that will remain in effect while the case is pending.  A CPO may allow for "peaceful contact" between the parties if they both want it, and if the judge agrees to allow it.  While a peaceful contact order is in effect, the parties may be near each other.  They can even live in the same house.  If the restrained party becomes aggressive at any time, though, the protected person can call the police and have him removed from the house and / or arrested.  

If the defendant is convicted of some crime involving domestic violence, a CPO may remain in effect for up to 10 years.  

A victim of domestic violence may separately request a DVRO in Family Court.  I have previously written extensively on this blog about the process of seeking / fighting a DVRO.  

Domestic violence cases are complicated and the stakes are high.  If you or a loved one has been arrested or charged for any offense involving domestic violence, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.  

Thanks for reading. 

Fullerton domestic violence lawyer

Should I Apply for a Restraining Order in California?

I've previously written extensively on this blog about the nuts and bolts of California restraining order laws -- how to get one, how to fight one, how to modify / terminate one, the rules of evidence that apply at restraining order hearings, and just about every other angle that I can think of.  

Today, though, I want to specifically address the question of WHETHER you should seek the protection of a restraining order.  If you're thinking about seeking a restraining order against someone else, read this before taking the plunge.  I'll discuss the various types of restraining orders that courts in California can grant, who they protect, the types of behaviors that can be enjoined (prohibited) and a few other issues that the petitioner should consider in advance. 

Getting Started

The person seeking the restraining order is called the "petitioner" (he or she files the petition to request a restraining order).  The restrained person is called the "respondent" (he or she responds to the petition).  

Once the petitioner files the initial request for restraining order, the court may issue temporary orders on the spot.  Those orders will remain in effect until the time of a hearing, usually about 21 days later.  At the hearing, each side will have an opportunity to tell their own version of the story, and also to present evidence and witnesses.  

Serving the Papers on the Respondent

Between the time of filing and the time of the scheduled hearing (inside that 21-day window), the petitioner must arrange to have someone personally serve all of the appropriate documents on the respondent.  The documents will notify the respondent of the date & time of the hearing, any temporary orders, and will also include the petitioner's description of why he / she feels that a restraining order is necessary.  

The petitioner cannot serve the documents him / herself -- someone who is not a party to the case must perform the service.  The person who serves the documents must also prepare and sign a document called a "proof of service", swearing under penalty of perjury that the papers were, in fact, personally served on the respondent.  The sheriff's department will usually serve court documents for free or a small fee.  The "proof of service" form must be returned to the court and filed before the time of the hearing.  The court will not go forward with the hearing unless the judge is satisfied that the respondent has been properly served and notified.  

Service is one of the first issues that the petitioner should consider -- do I actually know how to find the respondent?  If the respondent is homeless or has moved out of the state, personal service might be impossible.  If you don't realistically believe that you can find the respondent within 21 days and have him personally served, then a restraining order might be a waste of your time.  

Where to File

There are a few different types of restraining orders that courts can issue.  The type of order depends on the relationship of the parties.  If the parties are closely related, were formerly in a relationship or share a child together, then the case would be filed as a "Request for Domestic Violence Restraining Order", and the matter would be heard in the family court.  If the parties are coworkers, or if the petitioner alleges that he / she was harassed on the job, then the case would be considered "Workplace Violence" and would be heard in the civil court.  Other disputes (not involving family members or co-workers) usually fall under the umbrella of "Civil Harassment" restraining orders, which are also heard in the civil court.  

The venue where the case is filed can have a huge impact on the overall trial strategy.  The rules vary, depending on the type of order involved and the court where the case is being heard.  In cases involving domestic violence, for example, the petitioner's burden of proof is lower, but the rules of evidence are more restrictive.  Speak with a qualified, local attorney (like myself) to determine the most advantageous venue for your restraining order petition.  

"Harassment"

Another initial consideration should be whether or not the petitioner's allegations actually rise to a level that meets the legal definition of "harassment".  Like many other words in the English language, the court's definition of "harassment" is not exactly the same as the word's definition in common usage.  

In order to meet the court's standard of "harassment", the behavior in question must meet several criteria.  Harassment requires a "course of conduct".  A course of conduct is something that demonstrates a continuity of purpose, not merely a single, anomalous act.  That course of conduct must be directed AT the petitioner.  Conduct that merely affects the petitioner, but is not directed towards the petitioner, is not sufficient to warrant a restraining order, no matter how serious the effects of the conduct might be on the petitioner.  

Example:  Fred smokes big cigars in his backyard all day long.  His neighbor, Karen, is very sensitive to cigar smoke because of some medical conditions.  Fred's cigar smoke causes Karen to suffer panic attacks.  She can't sleep at night and her medical conditions get much worse.  If she files a restraining order against Fred to make him stop smoking, the judge would be correct to deny her request.  Fred's cigar smoke might annoy Karen and it might even cause serious health consequences for her, but there is no evidence that Fred is acting with the intent to annoy or harass her.  His conduct is not "directed at" her.  The mere fact that his behavior affects her is not sufficient to warrant a restraining order.

Additionally, the petitioner must prove that the conduct in question serves no legal purpose, that it would cause a reasonable person to suffer emotional distress, and that it did, in fact, cause the petitioner to suffer distress.  This excludes conduct that might cause the respondent to suffer serious emotional trauma, but which also serves a valid, lawful purpose (attempting to collect a debt or to serve legal papers, etc.).  It also excludes conduct that seriously affects the petitioner, but would not cause a reasonable person to suffer the same emotional distress.  Finally, it excludes conduct where the petitioner appears to be the aggressor, or where the petitioner has not behaved in a way that suggests he / she is seriously afraid of the respondent.  

Proving the Case

The petitioner has the burden of proving the case.  In domestic violence cases, the threshold is "a preponderance of the evidence".  That means the petitioner must tip the scales by 51%.  This is a low burden, but it's not always as easy to overcome as it sounds.  If the evidence is perfectly even (i.e., the petitioner claims that something happened and the respondent simply denies it), then the petitioner has not carried the burden.  In that situation, the respondent wins and order is denied.  

In other types of restraining orders (civil harassment, workplace violence, etc.), the petitioner must prove the case by "clear and convincing evidence".  This is a higher burden that the "preponderance of evidence" standard that applies in DVROs, but lower than the "beyond a reasonable doubt" standard that applies in criminal trials.  

To prove the case, the petitioner should come to court prepared with reliable, admissible exhibits.  The rules of evidence are complicated, though.  Again, a qualified, local attorney (like myself) can help ensure that any exhibits are supported by the proper foundations and that they meet the court's standards for admissibility.  

Both sides can also present witnesses to testify at the hearing, if those witnesses personally observed something that is relevant and material to the judge's decision.  In some types of hearings, witnesses can even testify to hearsay (things that someone else told them).  

The Scope of the Orders

If the petitioner can overcome those initial hurdles (finding / serving the respondent, making a compelling case to establish that harassment has actually occurred, and proving that the respondent is the person who committed the harassment), the next question for the petitioner should be -- What am I asking for?  Is this something that the court actually has the authority to order?  

Restraining orders typically prohibit one party from coming within some distance of certain people and places.  They can also bar the respondent from contacting the petitioner and other members of the petitioner's household.  Occasionally, they also include orders for the return of property / pets, transfer of cell phones, etc.  If those kinds of orders would solve your problems, then a restraining order might be appropriate.

Keep in mind, though, that there are limits to the court's power and there are many things that the judge simply cannot order or enforce.  The judge will not, for example, order someone to stop talking ABOUT you.  The respondent will always be free to tell other people what he thinks about you, as long as he does not say it to you personally.  This includes posting about you on social media, as long as the posts do not "tag" you or messages are not sent directly to you.  

The court also cannot order the respondent to stop calling law enforcement to complain about you.  The respondent will always be free to call the police, code enforcement, animal control, Child Protective Services, parking authorities, etc., no mater how much you feel that the complaints are unfounded.  If this person is making reports that he or she knows to be false, the police will handle that on their own.  

Sensitive Issues

At the time of the hearing, the petitioner will be required to tell his or her story in open court.  The courtroom may be packed with strangers.  The opposing party or his / her lawyer will have an opportunity to cross-examine you and to pepper you with questions about your allegations.  They will try to demonstrate that you are lying or that you have some incentive to misstate the facts.  The judge may also ask questions to gauge your credibility and to drill down on important details.  

Petitioner should seriously think about whether or not he / she wants to answer questions about the allegations in open court and subject him/herself to cross-examination.  For many petitioners, the court hearings are more stressful than the underlying harassment.  

Anything said in court during a restraining order hearing becomes a public record.  If you admit to some wrongdoing, your statement may be used against you later in criminal court.  It might also complicate any pending criminal cases related to the underlying allegations. 

Conclusion

Before investing a lot of time, effort, money and emotional bandwidth to pursue a restraining order, the petitioner should seriously consider the hurdles that must be overcome at each stage of the proceedings.  

There are complicated legal issues involved with any restraining order.  I can help with that part.  There are also complicated emotional questions, though, that no lawyer can answer for you.  The purpose of this post is to help restraining order petitioners understand, anticipate and avoid some of the common hang-ups that lead to cases being dismissed or abandoned.  

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

Thanks for reading. 

Restraining Order Lawyer