What We're Working on Now: October 2020 Edition

Summer is turning into fall and Orange County Court operations are still severely impacted by the ongoing pandemic.  Many hearings are now being conducted remotely (over the phone or by video conferencing).  Hearings are also being streamed live over YouTube.  Links are available at occourts.org.  

The courts are taking extraordinary measures to reduce crowding and to enable "social distancing".  Face coverings are required and admittance to buildings is limited.  

To make matters more complicated, the North Justice Center (Fullerton Courthouse) is closed indefinitely while structural engineers evaluate some new cracks that recently appeared in the building's foundation.  All of the cases that had been scheduled for hearings in Fullerton have temporarily been reassigned to other courthouses around Orange County.  

Here's an update on some other recent developments at our office and around the Orange County Courts in general:

New Misdemeanor Arraignments

The court is not scheduling any new misdemeanor cases for in-person appearances unless the defendant is in custody.  If you were cited and ordered to appear in court, watch your mail for a new notice once the court is open and prepared to hear your case.  

The court has adopted a procedure for attorneys to make some progress toward resolving pending misdemeanor cases by phone and email correspondence.  If you or a loved one has questions about an open misdemeanor, call us to discuss your options.  

Felony Appearances

Typically, defendants in felony cases must be personally present for each hearing.  In an effort to reduce crowding inside the courthouses, though, judges are currently allowing attorneys to appear without their clients present in most felony matters.  

Restraining Orders

The quarantine has led to a spike in reports of domestic violence.  Our office has been busy processing restraining order petitions for the past several months.  

There are several different types of restraining orders under California law, depending on the relationship of the parties involved (domestic violence, civil harassment, elder abuse, workplace violence, etc.).  If the parties are (or were ever) married, dating, related, living together or co-parents of children together, any restraining order petition would probably be treated as a matter of "domestic violence".  In Orange County, all domestic violence restraining orders are filed and heard at the Lamoreaux Family Justice Center in Orange.  

As part of their ongoing efforts to reduce crowding and to enforce social distancing, the court recently began staggering their restraining order hearings throughout the day.  Rather than ordering everyone to appear at 8:30 AM and to wait together for their individual cases to be heard, litigants are now ordered to appear at a specific time slot that has been reserved for their particular case.  This new staggered schedule is much more time-efficient than the old system, where parties could spend all morning sitting around and waiting for the judge to call their matters.  

Before the pandemic, restraining order hearings would be scheduled within 21 days of the filing of the petition.  With the current backlog and staffing shortages inside the courts, though, hearings are being delayed for at least 6-8 weeks.  If you've been served with a temporary restraining order, this means that you might have to wait 2 months before you even have a chance to appear in court and to present your side of the story.  The temporary order will remain in effect during that time.  If you violate the temporary order, you can be arrested and charged criminally.  The penalties for violating a domestic violence restraining order can be severe, including the loss of your right to possess firearms for 10 years.  

Expungements

Even though Orange County courthouses are closed to the public, judges are still processing expungement petitions by mail.  If you're looking for a new job, or if you expect to apply for new jobs in the near future, this is a great time to clean up your old criminal record with an expungement.  

Many felonies have recently been downgraded to misdemeanors in California.  If you've ever been convicted of a qualifying offense, you might also be eligible to have that case retroactively reduced.  In some cases, a reduction from a felony to a misdemeanor may even restore gun rights.  

Catalina Island

If you follow this blog, you know that my office defends more cases on Catalina Island every year than any other private firm.  Only the public defender handles more Avalon cases than us.  Catalina Island is a unique place with its own set of court rules and procedures.  For attorneys who are unfamiliar with those procedures, fighting a case in Catalina can be bewildering.

Catalina was hit hard by the early days of the shut-down.  The island economy relies heavily on cruise ship traffic and weekend tourists who come to enjoy the bars and restaurants.  Unfortunately, no cruise ships have docked in Avalon since March.  Most of the smaller establishments on the island remain closed, but a few have adapted to outdoor seating and carry-out windows.  

As the late-summer heatwave has baked Southern California, weekend crowds have started to return to Catalina.  Migratory bluefin, yellowfin and yellow tail have also attracted anglers to the island this fall.  With the influx of tourists, the Sheriff reports more alcohol-related arrests.  The most commonly-cited violations on the island include "drunk in public" (PC 647(f)), DUI (VC 23152), assault / battery (PC 240 / 242), domestic violence (PC 243 / 273.5), and a variety of fishing offenses.  

Catalina is part of Los Angeles County.  Unlike their neighbors in OC, LA is currently hearing new misdemeanor cases.  If you or a loved one was cited while visiting Catalina, call us to discuss your options.  As always, we offer free attorney consultations.  (714) 449-3335.  Ask for John.  

Thanks for reading and stay healthy.  

Catalina Courthouse is Open for Operations

The Catalina Courthouse (City of Avalon, Los Angeles County) is open and hearing cases again after a months-long COVID closure.  

Before the shutdown, the tiny courthouse had been open on alternating Fridays.  Due to the backlog of pressing matters, though, the court will temporarily operate on a weekly basis as the staff works to catch up.  

It's been a slow summer for tourism on the island as bars were closed, cruises were cancelled and the ferries reduced services.  Crowds are finally starting to return as the weather heats up and the tuna make their way into warmer waters.  

The surging crowds have brought a surge in misdemeanor arrests and citations over the past couple weeks.  After a quiet summer, the Sheriff reports a recent spike in reports of domestic violence, "drunk in public", possession of controlled substances, disturbing the peace, driving under the influence (DUI) and assault / battery.  

The City Council of Avalon also recently approved a $100 fine for failure to wear a mask over the mouth and nose in places where individuals are likely to be in close contact with others.  

If you've been arrested or cited while visiting Catalina Island, a private attorney (like myself) can make all of your court appearances so that you don't have to.  In most cases, you are not required to personally attend each court hearing if you are represented by private counsel.  Fighting a misdemeanor charge usually necessitates several appearances and the cost of traveling back and forth to and from the island can be prohibitive for most people.  Don't make a series of trips if you don't have to.  Let an experienced professional collect the evidence, argue with the prosecutor and negotiate a fair deal on your behalf.  

Our office defends more cases on Catalina Island every year than any other private law firm.  We know the players and we know how the game is played in Avalon.  We have extensive experience defending against all types of charges that commonly arise on the island, from alcohol-related offenses to violent matters and even fishing violations.  

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

Thanks for reading.  

2020 Protest Series: Riots, Routs and Unlawful Assemblies

Over the past six weeks, we've all watched protesters clash with police in the streets of almost every major city in the US.  Most have demonstrated peacefully.  Many have resorted to various degrees of civil disobedience.  Some have vented their frustrations toward the police, and a few have taken advantage of the opportunity to commit random acts of violence, vandalism and theft.  

Of course, the First Amendment to the US Constitution assures the rights to assemble peacefully and to speak freely.  When gatherings threaten to become destructive, though, protests often morph into "unlawful assemblies", "routs" or "riots".  

An "unlawful assembly" is defined by section 407 of the California Penal Code as a group of 2 or more people who have assembled together to commit an unlawful act, OR to commit a lawful act in a manner that is "violent, boisterous or tumultuous".  If a group of people, however small, gets together with the intent to commit a crime, they have formed an unlawful assembly.  Even if the act they intend to commit is legal, they have still formed an unlawful assembly if they plan to commit the act in a manner that threatens public peace.  These elements are usually difficult for a prosecutor to prove in court.  It is fairly rare for the DA to actually prosecute the offense, but it may be a good excuse for police to clear the streets with mass arrests.  Even if none of the detainees are ever charged or convicted of a crime, PC 407 gives police a tool to forcibly shut down protests.  

A "riot" occurs when 2 or more people "disturb the public peace by using force or violence or by threatening to use force or violence with the immediate ability to carry out those threats"  (PC 405).  Prosecutors do not need to prove that the defendant or defendants had any previous plan or agreement to commit a crime, only that they they acted together in doing so.  

A "rout" occurs when 2 or more people "make any attempt or advance toward the commission of an act which would be a riot if actually committed" (PC 406).  Basically, a rout is an attempted riot.  

"Participating in a riot or a rout" is a misdemeanor (PC 408), but a defendant's mere presence at the scene is not sufficient to convict him.  It could make him guilty of violating section 409 of the California Penal Code, though, "refusing to disperse".  This charge is pretty self-explanatory.  If the police have determined that some gathering constitutes an "unlawful assembly", a "riot" or a "rout" and they order the congregants to disperse, any person who fails to do so may be charged with a misdemeanor.  Again, though, this is trickier than it sounds.  Prosecutors must prove that the defendant heard the order to disperse or somehow knew that the assembly was unlawful, and also that the defendant willfully refused to disperse.  And again, these elements can be difficult for prosecutors to prove.  If the police "kettle" a group of protesters into a confined area and block the escape routes, then the protesters have not "willfully" failed to disperse.  On top of that, prosecutors need to prove that the gathering actually was unlawful.  Just because the police declared it does not necessarily mean that their declaration will hold up in court.  

All of these charges potentially carry significant fines ($1,000.00, plus various court fees, penalty assessments and restitution  = $5,000+) and jail time (6 months to a year in local custody) if the defendant is convicted.  

Allegations of illegal protesting can be complicated to defend against.  If you or a loved one was arrested or cited for activities related to the recent protests, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.  We have experience defending against these charges and holding the police accountable.  

Orange County Criminal Defense Attorney

Know Your Rights: 2020 Protest Edition

Over the past couple weeks, protests over racism and police brutality have erupted in almost every major city throughout the United States.  Police have conducted mass arrests for a variety of alleged offenses.  Today I wanted to take a minute to provide a quick overview of some of the legal issues surrounding these protests (specifically in California), and the rights that protesters need to understand before they get involved.

The 1st Amendment

The 1st Amendment to the US Constitution enshrines Freedom of Conscience.  This includes the right to express yourself, the right to peacefully assemble, and the right "to petition the government for redress of grievances" (the right to protest).

The right to express an opinion is sacrosanct, regardless of how popular or unpopular that opinion might be.  Contrary to common belief, the law makes no distinction between "political speech" and "hate speech".  All opinions are equally protected, even if you find some expression to be repugnant.  The government may never punish or prosecute someone simply for expressing an offensive thought.

Courts draw a distinction, though, between regulating thoughts and regulating actions.  Even though all opinions are equally protected under the law, police may enforce reasonable restrictions on the time, place and manner of speech.  For example, they may require permits for large gatherings, as long as they do not discriminate in the issuance of permits.  They may prevent protesters from blocking traffic and disrupting essential functions of the city, as long as they leave open some adequate alternative methods for protesters to express themselves.

This is going to be a big issue in the coming months, as advocates sue police departments over the heavy-handed tactics that were used to clear out some demonstrations.  Courts will have to determine whether police used unnecessary force to stifle dissent, or if they simply enforced the law by regulating the "time, place and manner" of unlawful assemblies.

If you decide to participate in any protest rallies, remember that your words and opinions are 100% protected by law.  Your actions, though, are not.  You are free to yell "FTP!" in a cop's face, but you will be arrested if you spray paint it on a police car.  That's the difference between free speech (protected) and vandalism (not protected, even if it is politically motivated).

Recording the Police

Courts have consistently ruled that filming the police while they perform their duties in public is protected by the 1st Amendment.  If we've learned anything over the past couple weeks, it should be the value of cell phone cameras in exposing abusive tactics by law enforcement.  The outcry over George Floyd's death was sparked by cell phone footage that showed police kneeling on his neck for over 8 minutes as he did not appear to resist.  Without that footage, the officers involved would probably still be on the job.

Since then, cell phone videos have captured police pushing an elderly man to the ground, causing him to strike his head on the pavement.  We've seen police push a woman and use profanity against her while she was kneeling.  We've seen officers use batons to strike members of the media and peaceful protesters who appeared to be walking away.  An officer in New York was recorded removing a man's mask and spraying him in the face with pepper spray.  All of these incidents were brought to national attention thanks to the relatively new role of ubiquitous cell phone cameras.  These images have helped spread the message that police brutality is a serious problem in the US and that it needs to be addressed by people of all races.

Hopefully, the fear of being filmed will deter bad conduct by police in the future.  If you attend any protest rally, make sure that your camera is rolling.  If you see police using questionable force, document it and share it.  These videos provide a valuable first-hand account of what actually happened, rather than simply taking the officer's word.

Resisting Arrest

Recording the police in public is protected by the 1st Amendment, but interfering with their duties is not.  If you choose to record the police, make sure that you do so from a safe distance.  Do not put yourself into a position where you could be accused of "delaying" or "obstructing" them.  Do not intervene or try to prevent them from performing their jobs.  If you get in their way, even briefly, you can be arrested for violating section 148(a)(1) of the California Penal Code, commonly known as "resisting".

To be guilty of resisting, the DA only needs to prove that the police were attempting to perform their lawful duties and that you made their job more difficult or time-consuming than necessary.  They do NOT need to prove that you were under arrest before you started resisting, or even that you did anything else illegal.  This is a common issue that I hear all the time -- "How can I be charged for resisting arrest if I wasn't arrested until after I resisted?".  If an officer was trying to do something else and you got in the way, you will be arrested for resisting.

A common defense to 148(a)(1) charges -- and one that I expect to see used A LOT in the near future -- is that the officers involved were not performing their lawful duties when the defendant resisted.  If the police were doing something unlawful to begin with, then a defendant commits no crime when he resists or obstructs them.  This argument is going to depend heavily on the individual facts and circumstances of each specific case.  It is risky, because it essentially requires the defendant to admit that he committed the act and to argue that the act itself was not a crime.

I plan to continue updating this post as more issues arise.  Check back often for the latest.  Be safe out there.  If you or a loved one has any questions about your right to peacefully protest, call our office for a free attorney consultation.  (714) 449-3335.  Ask for John.

Thanks for reading.

Orange County Courts Are Partially Open

Orange County courts have reduced their operations in response to the current coronavirus pandemic.  The court will not conduct any new out-of-custody arraignments or restraining order hearings until at least April 24, 2020.  That closure could be prolonged again. 

This doesn't mean that the courts are completely dormant, though.  Judges and court staff are working frantically to hear emergency matters and to reduce the over-crowded conditions inside the jails.  The California Judicial Counsel recently ordered local judges to reduce bail to $0 in most cases, essentially granting OR releases to many defendants.  If you have a loved one who is currently incarcerated in an Orange County jail, now is a great time to apply for a bail reduction or pre-trial release. 

The courts are still accepting new restraining order petitions, but all hearings have been postponed by at least 30 days.  This means that individuals who have suffered abuse or harassment can still get the immediate protection of a temporary restraining order.  The order can now remain in effect for up to 7 weeks before the restrained party has an opportunity to respond at a court hearing.  The restraining order is enforceable during that time. 

The Orange County District Attorney and the Anaheim City Attorney are still filing new charges with initial appearance dates after 4/24.  Specifically, prosecutors are working to process a wave of domestic violence cases that have spiked during the lock-down.  When the Judicial Counsel lowered bail to $0 for most offenses, they specifically excluded domestic violence charges.  This means that anyone arrested on suspicion of domestic violence during the lock-down WILL go into custody unless they post bail. 

Courts have also been working to adopt some new technology that should facilitate remote appearances.  I have been corresponding with judges, prosecutors and court staff by email this week.  They tell me that we are going to start using video conferences to discuss settlement offers shortly. 

Information is changing quickly, so check back often for updates as they become available. 

As always, please feel free to call my office for a free attorney consultation if you have any questions.  (714) 449-3335.  Ask for John. 

Thanks for reading.

Can Fish & Game Wardens Search Me Without a Warrant?

I get a lot of questions about Fish & Game wardens.  If you've ever dealt with officers from the California Department of Fish & Wildlife, you probably know that these guys can be nosy.  They like to board boats and search coolers.  Maybe they've knocked on your door and asked to examine the carcass or antlers of a deer you recently shot.  Sometimes, these compliance checks feel a little intrusive and intimidating.  Today's post is specifically about the special rules that apply in "administrative searches" conducted by Fish & Game wardens. 

First, though, I should acknowledge that the California Department of Fish & Game recently changed their official name to the "Department of Fish & Wildlife".  The change reflects the fact that their agency is responsible for enforcing regulations regarding a variety of wildlife, including animals that are classified as "non-game" species.  "Fish & Wildlife" just makes more sense.  Some of us are still stuck in the habit of using the old name, though.  I understand that the agency is called the "DFW", but old habits are hard to break. 

The 4th Amendment to the US Constitution assures the right to be free from unreasonable searches and seizures.  It does not define the word, "unreasonable", though.  Courts have ruled that the reasonableness of a search depends on the specific circumstances.  To determine whether or not a search is unduly intrusive, judges balance the interests of the government on one hand, against the individual's interest in privacy on the other.  That includes taking into consideration the place searched and the individual's expectation of privacy in that place.

For example, individuals have a high expectation of privacy in their own homes.  Consequently, police cannot (usually) barge into a private house and demand to search the place unless they have a warrant, signed by a judge.  People have a lower expectation of privacy in their cars, though.  Since cars are already subject to heavy state regulations, courts are more likely to approve of warrantless vehicle searches, because the state vs. privacy balance often tips in favor of the police. 

When someone voluntarily engages in any activity that is highly regulated by the state (like driving a car, fishing or hunting), they also voluntarily agree to comply with all the relevant laws and regulations.  Courts have consistently found that fishers and hunters have a lower expectation of privacy because they choose to participate in a sport that comes with a lot of rules.  At the same time, the state has a high interest in performing inspections of anyone who fishes or hunts.  Of course, all this means that DFW wardens generally have wide latitude to conduct "administrative searches" of anyone who fishes or hunts in the state. 

If there was still any question, section 1006 of the California Fish & Game Code explicitly states that the department may inspect "All boats, markets, stores and other buildings, except dwellings, and all receptacles, except the clothing actually worn by a person at the time of inspection, where birds, mammals, fish, reptiles, or amphibia may be stored, placed, or held for sale or storage," as well as, "All boxes and packages containing birds, mammals, fish, reptiles, or amphibia which are held for transportation by any common carrier."  Section 2012 of the code also specifically says that any hunting or fishing gear must be presented for inspection upon demand of any DFW warden.

Those laws give Fish & Game wardens virtually unlimited power to search or inspect anything used to hunt, fish, or to store meat.  The only exceptions are "dwellings" and the clothing actually worn by the subject at the time of the search.  Wardens can knock on your door and demand to search your truck and any outbuildings on your property (detached garages, sheds, barns, etc.).  They can demand to inspect your rifles and anything else that they're curious about, but you do not have to let them into your house.   

Even though wardens may generally conduct administrative searches without any warrant or probable cause, courts have also ruled that searches must be conducted in a "reasonable" manner.  Again, that word isn't clearly defined, but judges have thrown out cases when wardens used excessive force, for example.  

If you or a loved one has questions about dealing with the California Department of Fish & Wildlife, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.  

Thanks for reading.  

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.