Everything You Wanted to Know But Were Afraid to Ask: "Lewd Conduct in Public" Edition

I've previously written here about section 647 of the California Penal Code.  Commonly referred to as "Disorderly Conduct", PC 647 prohibits everything from prostitution to peeping, loitering, sleeping in parks and being drunk in public.  Subsection (a), though, is the topic of today's post.

PC 647(a) makes it a misdemeanor to engage in any "lewd or dissolute conduct" in any public place or in any place that is exposed to public view.  To be convicted of this offense, the prosecutor must establish 5 elements:

• That the defendant willfully touched his or her own genitals, buttocks or female breasts (or the genitals, buttocks or female breasts of another person),
• That the defendant acted with the intent to arouse or gratify him / herself or another person, or to annoy or offend another person, 
• The defendant was in a public place or a place that was open to public view, 
• Someone else who might have been offended was present, AND
• The defendant knew or should have known that another person who might be offended was present. 

That's a lot of unpack, and a lot of elements that may be open to some interpretation and argument.  Put simply though, the DA must prove that the defendant was doing something sexual in public view with the knowledge that he could be seen by someone who might not want to see whatever the defendant was doing.

It's interesting to note that breasts are only considered "lewd" on women.  If a man rubs his own bare nipples (or if someone else rubs a man's nipples) in public, there's no crime.  

In my previous post re: Drunk in Public cases, I explained that the legal definition of "public place" includes any place that is generally open and accessible to members of the public. This includes inside private businesses, on roads, in parking spaces, and even your own front porch.  Since it wouldn't be considered "trespassing" for a salesman to walk up your driveway and knock on your door, those spaces are considered "public places" for the purposes of PC 647.  The same is true for common hallways and courtyards in apartment buildings.  

The next two elements are where a lot of people get tripped up.  To constitute the crime of 647(a), the DA must prove that another person who might have been offended was present.  They do not have to prove that the onlooker was, in fact, offended.  The prosecutor must also prove that the defendant knew or should have known about the onlooker's presence, but they do not have to prove that the defendant intended to be seen.  

Even though PC 647(a) is a non-violent misdemeanor, it may carry heavy penalties, including jail time, probation, mandatory counseling, stay-away orders, fines and community service.  

There are many possible defenses to the charge of 647(a).  The best strategy in your particular case, though, will depend on the unique facts and circumstances surrounding your arrest. 

If you or a loved one has questions about PC 647(a) in California, call us for a free attorney consultation. (714) 449-3335. Ask for John. 

Thanks for reading. 

Fullerton Criminal Defense Attorney

Can I Be Arrested for Being "Drunk in Public" on Private Property?

Section 647(f) of the California Penal Code makes it a misdemeanor to appear in a "public place" while under the influence of alcohol or drugs.

In "drunk in public" cases, the question often arises over what technically constitutes a "public place".  There is a common myth that "drunk in public" laws are unenforceable inside bars because bars are private property.  This is false.

Under California law, a "public place" is defined as any place that is generally open and accessible to anyone who wishes to go there.  This includes private businesses that invite members of the public onto their premises.  Bars are considered to be "public places" in California.

Since roads, highways, and even parking spaces are open and accessible to the public, California courts have ruled that they also qualify as "public places" for the purposes of PC 647(f).  This means that you can be arrested for being drunk in public if you are found intoxicated inside a vehicle while the car is in a public place (on the road or parked somewhere publicly).

In some states, you can be arrested for being intoxicated in a place that is visible to the public.  In California, though, it is not necessarily illegal to be under the influence of alcohol while exposed to public view.  It is perfectly legal for adults to get inebriated inside their own homes in California, regardless of whether or not they are visible to neighbors.

The front lawn of a private residence, however, is a different story.  In the landmark case of People v. Olson (1971) 18 Cal.App.3. 594, a California appellate court ruled that the area between the street and the front door of a private residence (including the lawn and porch) are considered to be "public places" for the purposes of PC 647(f).  Since it would not be considered "trespassing" for a stranger (e.g. a salesman, a Girl Scout, a mail carrier, etc.) to approach the front door of a private home, that area is considered to be "open and accessible", and therefore "public".  This means you can be arrested for being "drunk in public" on your own front lawn.  The same is true for common hallways and courtyards of apartment buildings -- if those areas are generally open to members of the public who may pass through while conducting lawful business, then they are considered to be "public places".

In my view, there are still some unanswered questions here.  What if, for example, your front lawn is enclosed with a white picket fence?  Is that still considered "open and accessible"?  What if you have a "No Trespassing / No Solicitors" sign posted?  How about a super exclusive, members-only bar?  Or a Masonic Lodge?  Are these places "open to the public"?  I could see arguments going both ways.

There are many possible defenses to PC 647(f) charges in California.  The best strategy in your particular case will depend on the unique facts and circumstances.  Our office has extensive experience in fighting "drunk in public" charges throughout Southern California.

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

Thanks for reading.

Fullerton Criminal Defense Lawyer

How Long Will it Take to Resolve My Criminal Case?

One of the most common complaints I hear from my clients is that their case is taking much longer to resolve than they had anticipated.  Unfortunately, many defendants unrealistically expect that their complicated legal issues can quickly and easily be settled with a couple phone calls. Some clients believe that a lawyer can simply explain their defense to the judge and the court will immediately dismiss the case and apologize for the inconvenience.  If things were that simple, my job would be a lot easier.

As a criminal defense attorney, part of my job is to explain the process so that my clients know what to expect, and so that they are empowered to make the best decisions in their own cases.  If they do not understand what's going on and why it's taking so long, then I have not done my job.

I think that crime shows contribute to some misunderstandings about the criminal justice system. TV shows tend to oversimplify most of the boring procedural issues so that a complicated, convoluted process fits neatly into a 30-minute time slot.

In today's post, I want to break down the timeline of a typical misdemeanor investigation and prosecution.  Keep in mind, this is typical misdemeanor -- complicated misdemeanors can take longer, and felonies can take even longer than that.

• Day 1:  The incident and arrest  

To make matters simple, let's say you are arrested on suspicion of DUI on New Year's Day, January 1.  You'll probably be taken to jail for the night and released in the morning.  When you are released, the police will assign a court date, usually about 8-12 weeks in the future.  In this case, you might be ordered to appear in court around March or April.

• Day 2 - 60:  The investigation

Between the time of your arrest and your first court date, police will compile reports about the incident.  They will gather all of the relevant evidence and they will forward their findings to the local prosecutor (Note: most misdemeanor prosecutions are conducted by the District Attorney for your county.  They may also be conducted by the local City Attorney, though.  For the sake of simplicity, I will use "DA" and "prosecutor" interchangeably).  Some law enforcement agencies move much faster than others.  The CHP and the Dept. of Fish & Wildlife, for example, move notoriously slowly in their investigations.

• Around Day 60:  The filing of criminal charges

After the prosecutor receives all the reports from the arresting agency, they will make a decision regarding the filing of criminal charges.  Remember, the police do not "file charges", they only investigate crimes and forward their findings to the prosecutor.  Also keep in mind that victims of crimes do not "file charges" either.  Police may ask the victim if he or wishes to file charges, and the DA may take the victim's wishes into consideration, but the ultimate decision of whether or not to pursue a criminal case rests with the prosecutor alone.  The DA ultimately decides what charges, if any, to file.  Similarly, police and victims may not simply decide to "dismiss" a case (since they aren't the ones who filed it in the first place).

In most cases, prosecutors will review the police reports and file their case against you before the date when you were ordered to appear in court.  It's very common, though, for delays to occur at this stage.  You might show up in court on the appointed day and find that your name is not on the calendar.  Maybe the DA had questions after reading the police report and they sent the case back to the arresting agency for a more thorough investigation.  Or maybe the police did not forward their reports to the DA as quickly as they had anticipated.  Or maybe you're just a low priority and your paperwork is still buried under a pile of other cases at the DA's office.  Whatever the reason for the delay, you're left playing the waiting game.  This does NOT mean that you're "out of the woods", or that the charges have been dismissed.  It just means that your case hasn't been filed yet.  In California, prosecutors have up to one year from the date of the incident to file most misdemeanors.  You will be notified by mail when they eventually get around to filing your matter.

• Day 60-90:  Arraignment

For the sake of keeping things simple, let's assume that the police sent their reports to the prosecutor in a timely manner, the DA has reviewed all of the evidence, and they have filed misdemeanor charges against you by the time you appear in court.

The first court appearance is called the "arraignment".  At the arraignment, prosecutors will officially notify you of the charges that you are facing.  Copies of the police reports will be provided to your attorney.  You can either plead "guilty" and resolve your case on the spot, or you can plead "not guilty" and begin the process of fighting your case.

Remember, the arraignment is NOT the time to present your defense.  The court will not hear evidence, argument or witnesses at this hearing.  The arresting officer will not be present.  The arraignment is merely a formality where some preliminary information is exchanged between the lawyers.  This is one area that generates a lot of confusion with some defendants.  As I mentioned above, though, it's my job to clear up any misconceptions so that my clients know what to expect.

Often, defendants want to be heard at the arraignment.  If they can just explain the big misunderstanding, the DA or the judge will immediately throw the case out (they believe).  This impulse is understandable, especially when defendants truly believe that they are innocent of the charges.  As I said, though, this is not the time or the place for argument.  You will have an opportunity to present evidence in your own defense, but not at the arraignment stage.  

• Day 120, 150, 180, etc.:  Pretrial Conferences 

If you decide to plead "not guilty" and to start the process of fighting your case, then the attorneys will schedule a "pretrial conference" approximately 30-45 days after the arraignment, depending on the court's availability.  At the pretrial conference, attorneys will exchange more evidence and they will start to discuss various options to resolve the case.  The DA might have an offer for the defense attorney to present to his client.  The defense attorney might have a counter-offer that the prosecutor needs to discuss with his supervisors.  Your attorney might explain to the DA that the case is weak or that you have some valid defense.  He might also request copies of "supplemental discovery" -- video / audio recordings that are described in the police reports, etc.

This is also the stage where your defense attorney might file motions to dismiss the case for a variety of reasons.  If your lawyer believes that police or the DA has done something improperly during the course of the investigation or the prosecution, there may be valid grounds to ask a judge to exclude evidence or to throw the case out completely.  

Since attorneys are still exchanging evidence, offers and counter-offers at this point, it is common to conduct several pretrial conferences, usually spaced about 30-45 days apart.  Again, this area generates some misunderstanding with clients.  "It's been 4 months and the case still isn't resolved?  What's going on?", they ask.  And again, it's my job as an attorney to keep my clients informed of what I'm working on.  

Eventually, your defense attorney and the DA might reach an agreement.  Either the case is weak and it must be dismissed or reduced, or the case is strong and you should accept a generous plea deal while a good offer is still on the table.

• Day 210+: Trial

If the attorneys cannot make a deal, or if the defendant is not willing to accept an offer, then the case may eventually head to trial.  This is finally your opportunity to present evidence and argument in open court.  

Misdemeanor trials usually last about a week, including the time it takes to select a jury and for the jury to deliberate on their verdict after the evidence has been heard.  

As you can see, it is common for simple misdemeanor cases to last 6 months or more before they are resolved, assuming that there are no delays in the investigation or in filing the initial case.  

Since prosecutors have up to a year from the date of the offense to file most misdemeanor charges, cases may take even longer when the DA or the court is backlogged.  

The take-away is that misdemeanor prosecutions can be a marathon.  They're often longer and more complicated than many defendants expect.  Even when you're 100% innocent, don't expect the case to be resolved with a couple phone calls or a quick meeting with the DA.  

While the case is pending, though, you should feel free to communicate with your attorney so that you understand what he or she is working on.  If your lawyer is not available to speak with you and to provide you with regular updates, get a new lawyer.  Answering phone calls and communicating with clients should be the easiest part of the job.  If your lawyer can't do that properly, then he isn't doing what you hired him to do.  

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

Thanks for reading.  

Orange County Criminal Defense Attorney

What is the Statute of Limitations for Sex Crimes in California?

The "statute of limitations" ("SoL") describes the time limit within which prosecutors must bring criminal charges.  If the DA waits too long before filing a case, they may be "time barred" from doing so.  Like everything else in the law, though, this is often more complicated than it sounds.

Before we get started, it's important to remember that the "statute of limitations" refers to the time within which the case must be filed.  Often, prosecutors do file a case within the proscribed time period, but the defendant never appears in court for his arraignment.  When this happens, a bench warrant is issued.  The warrant may remain outstanding forever, or until the defendant is eventually arrested and brought to court.  A warrant will never simply go away on its own.  If an old warrant has been outstanding for several years, the defendant may have a valid argument that his constitutional right to a speedy trial has been violated, but this is different from a "statute of limitations" argument if the case was filed before the SoL expired.

The length of the statute of limitations depends on the maximum sentence for the specific underlying crime.  For most misdemeanors, the SoL is one  year.  That means prosecutors have one year from the date that the crime was discovered (not necessarily the date that the crime was committed) to file charges.  If the crime is a "wobbler" (one that can be filed as either a misdemeanor or a felony at the discretion of the DA), then a longer statute of limitations may apply, even if the case is only filed as a misdemeanor.

If the crime is a felony and the maximum penalty is less than 8 years in prison, the statute of limitations is usually 3 years.  If the maximum sentence is more than 8 years in prison, then the SoL is usually 6 years.  If the crime is potentially punishable by death or by life in prison, or if the crime involves embezzlement of public money, then there is no statute of limitations -- the DA can file charges at any time.

There are many, many exceptions and caveats to the rule that prosecutions must generally commence with within the 1-, 3- or 6-year statute of limitations.  If, for example, a defendant is out of the state when the crime is committed, the SoL can be extended by up to 3 additional years.

Arguments about the statute of limitations get especially complicated in cases involving allegations of child molestation, or "lewd acts with a minor" (PC 288).  Under section 803(f) of the California Penal Code, the SoL may be extended even longer under certain circumstances. The  district attorney can file criminal charges at any time (for up to one year after a report is made) if ALL of the following criteria are met:

• The crime involved child rape, oral copulation, penetration, or other "substantial sexual conduct" with a minor (the victim was under 18 at the time),
• The crime had never been previously reported to police, AND
• There is some independent evidence to support the allegations.  If the victim is over 21 at the time that the crime is reported, that "independent evidence" must be "clear and convincing".

The argument in these cases tends to revolve around the 3rd prong -- that the allegation be supported by "independent evidence" that is "clear and convincing".  Appellate courts have dealt with these issues extensively, and the nuances are intricate.

As I warned in the opening paragraph, issues regarding the statute of limitations can get complicated.  You may have a valid defense based on a filing delay, but the argument must be properly presented and supported by up-to-date citations or it will not be effective.

If you or a loved one is fighting an old sex case, call us for a free attorney consultation. 714 449 3335.  Ask for John. 

Thanks for reading.

Fullerton Criminal Defense Attorney

Is it Worth My Time to Fight a Restraining Order?

I believe I've posted about this question before, but I still hear it a few times every week. Callers tell me that an ex-girlfriend or a former co-worker has filed a restraining order petition against them. They don't see the petitioner anymore and they have no reason or desire to have further contact with that person. As they see it, a restraining order really wouldn't affect their life in any way -- it wouldn't prohibit them from doing anything that they really want to do. Why take the time and effort to fight it?

There are plenty of good reasons to oppose a restraining order, even if you agree to the petitioner's basic demands (e.g. stay away, have no contact, do not follow or stalk, etc.), and even if you have no interest in doing those things anyway. Having a restraining order issued against you will affect your life in ways that might not be obvious. These court orders are public records. Subjects of restraining orders forfeit various rights that the rest of us enjoy. Being the subject of a restraining order may also lead to some other nightmare scenarios that I've seen, and that I'll describe below.

Even if you're not interested in the restraining order, your employer might be. As mentioned, restraining orders are public records. They're available for anyone to see, with or without your permission. They are easily discovered by a simple background check. Most courts even put this information online now. Being the subject of a restraining order can make you ineligible to hold certain jobs or professional licenses. Good luck getting a security clearance or a Global Entry pass with an active restraining order against you.

Anyone who is the subject of a restraining order is prohibited from owning or possessing firearms. If there's a restraining order against you, you may not even have access to firearms that someone else in your home owns. If you already own guns, you will be ordered to surrender them to local police, or else sell them to a licensed dealer immediately. You may not simply give them or "sell" them to a friend or family member for safekeeping. If your job requires you to carry a weapon in the course of your duties, you might be looking for a new job. Again, good luck finding work with a restraining order on your record.

Having a restraining order issued against you may also make you vulnerable to false accusations or "accidental violations". If the petitioner spots you (or someone who looks like you) in a restaurant or a public place, she is likely to call the police. Even if you haven't "knowingly and willfully" violated the order, you can expect an unpleasant and embarrassing encounter with investigators. I've handled too many cases where my client accidentally butt-dialed an ex-girlfriend, allegedly violating an active restraining order. If your email gets hacked and your account starts sending spam messages to everyone in your address book, you could end up back in court trying to explain yourself.

Take restraining orders seriously, and make the necessary preparations to ensure the best outcome possible for your case. Of course, the best way to effectively prepare for your day in court is to retain a qualified, local expert. If you or a loved one has questions about restraining orders, call us for a free attorney consultation.  (714) 449-3335. Ask for John.

Thanks for reading.

Orange County Restraining Order Lawyer

How Can I Drop Domestic Violence Charges?

Here's a situation that our office sees very frequently:  A couple (married, dating, etc.) has a big, blowup argument.  The police show up and one party accuses the other of domestic violence.  Someone spends the night in jail.  The police conduct an investigation and the DA files criminal charges against the party that they determine to be "the aggressor".

By the time the case ends up in court, emotions have cooled, the parties have attended some counseling and the "victim" no longer desires the involvement of the courts.  She asks prosecutors to drop the case, but they refuse.  Instead, the DA proceeds "full speed ahead", with or without cooperation from the reporting party / "victim". 

Many of my clients are surprised to learn that an alleged victim of domestic violence cannot simply "drop the charges" in California.  The decision of whether to file / drop criminal cases is made by the District Attorney's Office.  Prosecutors may consult with victims, but they're not legally required to follow a victim's wishes.  

When a victim asks to drop charges (or indicates that she will not cooperate in a prosecution), the DA must decide whether or not they believe that they have a strong case without their victim's testimony.  The evidence might include a recorded 911 call where the victim describes events as they're happening ("He's hitting me now! Help!").  The suspect might be heard in the background shouting threats.  The police might have recorded an interview with the victim near the time of the incident in which she discusses her injuries and how they occurred.  Cops might have photographed the injuries to corroborate the reporting party's story.  Maybe other witness tell police that they saw the suspect personally striking the victim, etc.  In those situations, prosecutors will aggressively follow through with a criminal prosecution even if the victim asks them to dismiss the case.  Their reasoning is easy to understand -- they can prove that the suspect has committed a serious, violent crime against the People of the State of California.  He shouldn't be allowed to intimidate his victim into recanting her story.  Prosecutors have a responsibility to protect vulnerable citizens and to seek justice against those who would do them harm.  Plus, they don't need the victim's testimony to win a conviction.  There's enough independent evidence to prove the charges even without her cooperation.  That much makes sense.  

Most cases aren't that cut and dry, though.  A fact pattern that I see more commonly goes like this: Both parties have been drinking or using drugs and arguing.  At some point, one party (or a neighbor, or a stranger) calls police to report something nebulous ("I think they're fighting or something.  I heard a loud noise", etc.).  When the police show up, one party or both accuses the other of domestic violence.  There are no injuries, witnesses or physical evidence to support the accusations, but cops take a report anyway.  By the time the case ends up in court, the accuser changes her story.  Maybe she admits that she exaggerated a little, or even that she was the aggressor.  In these situations, an ethical prosecutor should consider the interests of justice, the wishes of the parties, the cost to taxpayers, the burden to the court system, and their priorities in general.  When those considerations tilt in favor of dropping the case, they should do so. 

But these guys didn't get to be overpaid government employees by making reasonable decisions.  Often, prosecutors need a little arm-twisting to help them come to their senses.  That's where we step in.  Our professional staff can help dig you out of a hole without making the hole any deeper.  We have extensive experience defending against all types of domestic violence cases in Orange County, Los Angeles, Riverside and San Bernardino.  We can deal directly with investigators, witnesses and prosecutors to ensure that your rights are protected.  Domestic violence charges may carry harsh, mandatory penalties.  They're complicated, emotional matters and they require the attention of an expert. 

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

Fullerton Domestic Violence Lawyer

The Dani Mathers Case Has Nothing to Do With "Body Shaming"

I've been meaning to write something about this one for a while now. Sorry if this is last month's news, but I haven't had much free time to spend with the blog lately.

Former Playmate Dani Mathers was convicted last month of violating section 647(j)(3)(A) of the California Penal Code. That law makes it a misdemeanor to violate someone's privacy by secretly photographing or videotaping them while the victim is a partially or fully undressed. Ms. Mathers had snapped a picture of an older woman showering at the gym, then posted the picture to social media with a derisive comment about the woman's physique.

The news media has completely missed the point with this story. The articles I've read keep referring to the conviction as a case of "body shaming", like Ms. Mathers' crime was the act of publicly ridiculing someone for being overweight or unattractive. That's completely wrong. It is not a crime to insult or ridicule fat people. If Ms. Mathers had snapped a picture of a fat person in a public place, posted the picture on social media and captioned the photo with a comment about the subject's weight, there would be no crime. If you're in public, you have almost no "reasonable expectation of privacy". Strangers may photograph you, post those pictures online and comment about your physical appearance. There are some exceptions (using a hidden camera to peek up your skirt, or using the photos commercially, etc.), but I'll save that discussion for another post.

The crime here was the act of intruding upon the subject's "reasonable expectation of privacy". The important fact in this case was that the older woman was photographed without her permission, while she was undressed, in a place where she reasonably understood that she would not be photographed (in a shower at the gym).

If Ms. Mathers had snapped a picture in the shower without the subject's consent and captioned the photo with a positive, complimentary comment like, "Look at this gorgeous grandmother! She looks great for 70!", she would still be guilty of the same crime.

The Dani Mathers case had everything to do with "intrusion upon privacy" and nothing to do with "body shaming".

If you or a loved one has questions about privacy, "revenge porn" or public use of your image, call us for a free attorney consultation. (714) 449-3335. Ask for John.

Thanks for reading.

Orange County Criminal Defense Attorney

How to Legally Grow Marijuana in California

If you want to grow marijuana in California (and you care about doing it legally), the first step is to stop taking bad advice from your friends.  There's a lot of misinformation out there.  Despite the recent reforms, people are still calling my office because they've been arrested for some marijuana-related crime.  Cannabis cultivation can be a minefield if you don't understand the law.

Since voters approved Prop 63, adults age 21 and older may cultivate up to 6 plants for their personal, recreational consumption.  The 6-plant limit applies to each piece of property, not to each adult.  If 3 adults live together in one house, they may cultivate a total of 6 plants in their backyard, not 18.  They can give away small amounts of their crop to friends, but they're still not allowed to sell it or trade it for anything of value.

If you have a doctor's recommendation to use medical marijuana, the 6-plant limit does not apply. You may cultivate as much as your doctor says that you need for your condition.  Be very wary, though, of so-called "99-Plant" recommendations that many doctors sell for a few extra dollars.  Remember that a rec is only as valuable as the doctor who will actually come to court and testify on your behalf.  If you are arrested and accused of cultivating an excessive amount of cannabis, do you really trust that your doctor that will show up in court and tell the judge that he examined you in good faith?  Do you believe he will testify that, in his professional opinion, you need 99 plants for your personal use?

Also keep in mind that doctors cannot issue "cultivation licenses" in California.  Regardless of whatever bad legal advice your doctor gave you (and regardless of whatever worthless piece of paper he sold you), his 99-plant recommendation does not entitle you to grow a large crop or to sell your excess harvest to a local dispensary.  There is a legal way to grow marijuana for sale (keep reading), but you should not simply rely on your doctor's 99-plant rec as a defense to marijuana charges.

There are currently 2 ways to legally sell marijuana (or to exchange it for anything of value) in California.  The first option is to apply for a license from the California Bureau of Cannabis Control.  The BCC issues specific licenses for indoor and outdoor grows of various sizes.  If you hold a valid, state-issued cultivation license, you may grow marijuana and sell it for profit, subject to some complicated regulations.  Call our office if you have questions about applying for one of these licenses. 

The other option to legally cultivate cannabis for sale is through a non-profit medical marijuana dispensary.  Dispensaries can take many forms -- unincorporated associations, agricultural collectives, or nonprofit mutual benefit corporations (this is the most common form and the method that the California Attorney General recommends).  Buyers and sellers of medical marijuana must be members of the same non-profit dispensary; sales from one entity to another entity (or from one club to another club, or from one freelance grower to a collective, etc.) is still illegal.  If you want to grow for a medical dispensary, you must be a member of that dispensary, and you should have some written documentation to that effect.  You should either be employed by the dispensary as a grower, or else you should have a written contract between yourself and the dispensary wherein you agree to provide cannabis and the club agrees to pay you a salary.

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

Thanks for reading.

Orange County Marijuana Lawyer

Clean Up Your Criminal Record: Updated 2017

I wrote a post last year about the many options that can be pursued to clean up your criminal record in California.  Here's the short version of that piece:

• If you were given probation and you successfully completed the entire term without any violations, you may be eligible to have your old case dismissed. Once a case is dismissed, you may honestly state that you have no criminal convictions for most purposes. A dismissal under this section will not restore gun rights, though. 
• If you were convicted of a misdemeanor and NOT given probation, then you must wait one year from the date of your conviction or your release from custody, whichever came later. You must also prove that you have remained law-abiding since the conviction.  
• If your conviction was for a felony, the charge may be reduced to a misdemeanor in some cases. If an old felony conviction is reduced to a misdemeanor, it may restore gun rights, depending on the circumstances.  
• You must complete probation before you're eligible to apply for a dismissal. If you're still on probation, we can ask the court to terminate probation early. 

The legislature has added some new caveats over the past year to allow more types of cases to be dismissed or reduced:

• Non-traffic infractions are now eligible for dismissal under the same process.  Non-traffic infractions include things like "disturbing the peace" and "urinating in public", for example. Applicants must wait one year from the time of the conviction. 
• A conviction for engaging in prostitution under PC 647(b) can now be dismissed if the applicant can prove that he or she was the victim of human trafficking.
• If you were convicted of a felony and sentenced to county jail rather than state prison, you may now apply for a dismissal.  The waiting period depends on whether or not your sentence included "mandatory supervision".  
• If you were arrested and the case did not result in a conviction, you may be eligible to seal the record of your arrest. 

If you or a loved one has questions about cleaning up an old criminal conviction, call our office for a free attorney consultation. (714) 449-3335. Ask for John.  

Thanks for reading. 

Orange County Expungement Lawyer

Can a Restraining Order be Resolved Before the Court Hearing?

As I've previously discussed on this blog, obtaining a restraining order in California is a 2-step process. First, the petitioner files a "Request for a Restraining Order". Within 24 hours, a judge will determine whether or not to grant a temporary order based on the facts alleged in the petition. Next, a hearing will be scheduled within 3 weeks. At the hearing, both sides will have an opportunity to present their arguments and a judge will decide whether or not to extend the order for a longer period (up to 5 years in cases involving domestic violence, or up to 3 years in cases involving civil harassment).

Unfortunately, this 2-step process often means that nonsense restraining orders are issued for 3 weeks before the respondent has an opportunity to present his side of the story in court. During this time, the respondent's life can be turned upside down. He can be barred from his home, separated from his kids and denied access to his belongings. By the time he has a chance to defend himself, the damage may be done.

Clients often ask me about resolving their restraining orders before their scheduled court hearings. Luckily, it may be possible to start negotiating a dismissal immediately, but this must be done properly. Disregarding the court's temporary orders can make a bad situation much worse. If the respondent calls the petitioner to discuss the case while the temporary order is in effect, he can be arrested. Any violation of the temporary order can also be grounds for the issuance of a permanent order, even if the petition itself was inadequate.

If you are the subject of a temporary order, you must absolutely abide by it until the time of the hearing. That means do not contact the petitioner in any way, directly or indirectly. Don't ask someone else to pass along a message. Don't send an email or a text message. Don't leave a note on her car. Don't even respond to a message from the petitioner if he or she attempts to contact you.

Your attorney may contact the petitioner to discuss your case, though. Any communication between you and the petitioner must be done through your counsel. If you need your work uniform or your medication, talk to your attorney about reaching out to the petitioner to arrange a hand-off.

Your lawyer can also start the process of trying to negotiate a dismissal before the hearing. Restraining order hearings are often arbitrary and unpredictable. No matter how strong you believe your case is, there's a pretty good chance that the judge will disagree. Whenever you choose to fight it out in court, there's a 50/50 chance that you'll lose. Stipulated dismissals (where both parties agree to resolve the case privately, rather than in court) can be a great way to ensure that both sides get 100% of whatever they want. Usually, the petitioner wants some assurance that the respondent will stay away, and the respondent wants to avoid a restraining order and everything that comes with it.

Stipulated dismissals work like this: the parties make an informal, written agreement through their attorneys. Typically, the respondent promises to stay away from the petitioner, to stop calling, to return the petitioner's iPad, etc., and the petitioner agrees to dismiss the case. If the respondent ever violates this agreement, the petitioner can go back to court and reopen the case. She'll simply show the judge the written contract and she'll explain how the respondent has violated it. Now she has a slam dunk case, and she's much more likely to win a restraining order. If the respondent demonstrates that he's unwilling or unable to abide by his promise to stay away, then the judge will see him as dangerous or unstable, and the court will grant the petitioner's restraining order. Of course, if the respondent complies with the agreement and he stays away as promised, then everybody wins.

If you've been served with a restraining order, call our office for a free attorney consultation. (714) 449-3335. Ask for John. We have extensive experience litigating restraining orders in all Southern California courts.

Thanks for reading.

Orange County Restraining Order Lawyer

Is Civil Disobedience a Defense to Criminal Charges?

With everything in the news these days, there's been a lot of talk about "civil disobedience", free speech, the right to protest, and the 1st Amendment.  Before you get yourself arrested, please take a moment to read this article.  Make sure that you understand your rights and, more importantly, the limits of those rights.  Then call my office.

The 1st Amendment to the US Constitution guarantees the right to free speech.  The government may (almost) never punish you simply for expressing an unpopular opinion.  The content of your speech is virtually sacrosanct under American law, no matter how offensive.  In this country, you are free to deny the holocaust or to make racially offensive slurs.  You might lose friends or even your job, but the state may not sanction you for saying stupid things. 

The time, place and manner of your speech is another story, though.  The government may constitutionally restrict when, where and how you express yourself, as long as they have a good reason to do so.  The police may not arrest you simply for yelling, "F*ck the police!", but they absolutely may arrest you if you scream it repeatedly late at night in a residential area (or if you torch a police car, block an intersection, disrupt traffic, damage property, etc., even if those actions are political speech).

So turn out, protest, make signs, and yell whatever you want.  But please don't block the freeway or light anything on fire.

If you choose to engage in some civil disobedience, be advised that "civil disobedience" is not a defense to criminal charges.  The term "civil disobedience" was coined in the middle of the 19th Century by Henry David Thoreau.  Thoreau had served a night in jail for refusing to pay a tax, in protest of the Mexican-American War.  He was a staunch opponent of the war and of slavery.  In his famous essay, Thoreau argued that men have a moral responsibility to resist unjust enactments, and to break the law if necessary.  He also emphasized, though, that they must be prepared to accept the consequences of their unlawful behavior.  Thoreau willingly served his time in jail and he never argued for lenience or claimed that his actions were protected by the 1st Amendment.

If you or a loved one has questions about civil disobedience or the 1st Amendment, call us for a free attorney consultation. (714) 449-3335.  Ask for John.

Thanks for reading.

Fullerton Criminal Defense Attorney

How to Prepare for an Appearance in Criminal Court

If you have a court date approaching, I know that the anxiety can be overwhelming.  Hiring a qualified, local attorney can help reduce the stress associated with appearing in court.  Your lawyer can explain the process so that you know what to expect.  He or she can stand by your side so that you understand your options and to ensure that you're not railroaded into any bad deals.

Your first court appearance is call the "arraignment".  No evidence or argument is presented at the arraignment.  This is not the day for your trial.  The arraignment is a formality, where your attorney will receive copies of the complaint (the document that explains the charges), and the initial discovery (police reports).  In most cases, you are not entitled to receive copies of the police report until the arraignment.  This is your attorney's first opportunity to read the details of the accusations against you.

At the arraignment, you may either plead "guilty" and resolve your case on the spot, or you may plead "not guilty".  If you plead "not guilty", then further court appearances will be scheduled.  These subsequent appearances are called "pretrial hearings".  At pretrial hearings, your attorney will meet with the DA to discuss the evidence and will attempt to negotiate a fair deal to dispose of your case (after your attorney has had a chance to thoroughly read the police reports).

You should make damn sure that you show up on time when you appear for the arraignment.  Every courtroom has its own specific procedures for conducting arraignments.  Most courtrooms start the morning with an "advisement of rights".  This is what it sounds like.  They will explain the various legal and constitutional rights that apply during the criminal process.  Some courtrooms lock the doors during the presentation to ensure that everyone hears this important information.  If you show up one minute late, you will be locked out, a warrant will be issued for your arrest, and you'll have to come back another day.  Give yourself plenty of time to park and to go through the security screening.

Dress appropriately when you appear in court.  This should go without saying, but I'm amazed at the clothing I see in court every day.  Your arraignment is the most important thing you'll do today -- dress accordingly.  Wear long pants (not shredded jeans or yoga pants) and closed-toe shoes.  Put on a collared shirt.  There is no such thing as overdressing for court.  Act like you're taking your case seriously.  Courts have dress codes.  If your attire is not appropriate, you may be kicked out and told to come back another day.  Simply dressing appropriately is the easiest part of "preparing" for your arraignment.

To recap, here's how you can prepare for your first appearance in criminal court:

• Retain a qualified, local attorney
• Show up on time
• Dress appropriately

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

Thanks for reading.

Fullerton Criminal Attorney 

Can I Get a DUI in California if the Police Didn't See Me Driving?

Depending on the circumstances, you may be arrested and convicted for DUI in California even if you were not personally observed driving.

In most cases, police can only arrest someone for a suspected misdemeanor under 3 circumstances: 1) the offense is committed in the officer's presence (the cops see you do it), 2) the police have a warrant for your arrest, or 3) a private person who witnessed the crime signs a declaration under penalty of perjury, swearing that they saw you do it (a citizen's arrest).  

DUIs are treated differently, though.  There's a special provision in the California Vehicle Code (section 40300.5) that specifically allows police to arrest suspected drunk drivers, even when they aren't caught in the act of "driving under the influence".  

To make sense of VC 40300.5, you have to understand that the crime of DUI involves driving a car while impaired.  Contrary to popular belief, it is not illegal to sit behind the wheel of a parked car while you're drunk, regardless of whether or not the keys are in the ignition.  It's not even illegal to sit in the driver's seat of a running car while you're impaired.  To be guilty of DUI, the DA must prove that you drove the car while you were under the influence of alcohol.  "Driving" a car involves intentionally exercising some control over the vehicle (e.g. moving the car even one inch). 

Police often encounter suspected drunk drivers who aren't actually observed in the act of driving, though.  Take the example of someone who is found passed out at a green light.  Police didn't actually see him commit the offense because they never observed the suspect "exercise control" over his vehicle -- he was asleep when police arrived and the car hasn't moved.  Or consider a situation where police find a car wrapped around a tree with the driver trapped inside.  Or a car stopped on the shoulder of the road while the driver "sleeps if off" or pees in the bushes.  In each of these cases, the suspect was never personally observed committing the offense (driving the car), but the police will arrest him anyway.  

VC 40300.5 permits police to make DUI arrests in situations that strongly suggest a driver must have been impaired at the time of driving, even if they didn't actually see him doing so.  This doesn't necessarily mean that the DA has a strong case in court -- and you may have a good defense at trial -- but it definitely means that you're spending the night in jail if you're caught.  

Some of these situations where police are permitted to make arrests under VC 40300.5 include:

• When a driver is found in or near a car that is blocking traffic (asleep at a green light or in the drive-thru line at a fast food restaurant)
• When the vehicle has been involved in a collision
• When a subject is so impaired that he poses a danger to himself or others
• When the person will not be apprehended unless he is immediately arrested, or
• When the person is likely to destroy evidence of the crime unless he is immediately arrested.

This last one is the "catch-all".  Since alcohol naturally dissipates in the human body over time, police can always claim that they're afraid evidence will be metabolized unless the suspect is immediately arrested and taken to the station for testing.  

If you're ever questioned by the police about a suspected DUI, you should avoid talking yourself into trouble by politely refusing to answer any questions.  Too many of my clients dig themselves into a hole by explaining to the officer, "Yes, I was wasted, so I pulled over to sleep it off".  That's not a defense, it's a confession.  These types of cases may be very defensible, as long as you don't help the police build their case against you.  We've achieved some great results in cases where our clients were not observed driving.  

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

Thanks for reading. 

Fullerton DUI Lawyer

New California Gun Laws for 2017

Between July's "Gunmageddon" and the passage of Prop. 63, California enacted a series of restrictive new gun laws this year.

Some new California gun laws to expect in 2017 include:

• A ban on the sale / transfer of common, center-fire, semiautomatic rifles with detachable magazines.  
• A new definition of "detachable magazine", to specifically prohibit the "bullet button".  
• A ban on the possession of any magazine that is capable of holding more than 10 rounds.
• The nation's first background check to purchase ammunition. 
• A ban on importation of ammo from out-of-state.
• A new requirement that homemade lower receivers ("ghost guns") be serialized and registered with the state.

The definition of "assault rifle" under California law was expanded to include any center-fire, semiautomatic rifle with a magazine that is not "fixed". If the magazine can be removed without disassembling the action of the firearm (pulling the rear take-down pin), it is now considered "detachable".  This effectively bans the bullet button.

If you own a rifle with detachable magazine or a bullet button before January 1, 2017, you may keep it, but you can't sell it, trade it or give it away after that date. If you die, your kids can't inherit it. You are the last person who will ever own it. You must also register your "assault rifle" with the Department of Justice before December 31, 2017. 

Starting July 1, 2017, civilians will be completely prohibited from possessing magazines with the capacity to hold more than 10 rounds. There is no "grandfather clause" for magazines that were owned or possessed before the prohibition. If you own them now, you're expected to turn them in, take them out of state, sell them to a licensed firearms dealer, or destroy them.

As of January 1, 2018, Ammunition buyers will be required to purchase a 4-year permit for $50.00 and undergo a background check. All ammunition sales will be electronically reported to the Department of Justice, and residents will be prohibited from bringing ammunition into California from out-of-state.

If you finish your own 80% receiver in your garage, you must register your "ghost gun" with the Department of Justice and have the part serialized.  Starting January 1, 2017, unfinished receivers will be regulated just like real firearms.  

There are still a lot of unanswered questions about how these new regulations will work in practice. We also expect some tooth-and-nail litigation before some of those questions are resolved. Stay tuned to see how this all plays out over the next year.

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  

Defending Against False Accusations in a Restraining Order

If you've been served with a restraining order, there's a good chance that the petition is full of lies. They always are. There's also a good chance that you're irate. That's understandable. I would be, too.

Being angry won't fix your problem, though. We have work to do, and that work must be done calmly, coolly, objectively and efficiently.

Of course, no simple, "one-size-fits-all" strategy is appropriate or effective in every restraining order case. It's always a good starting point to consult with a qualified local attorney. Part of being "calm, cool, objective and efficient" is understanding the law, analyzing the facts, and explaining concisely how those facts fit within the law to make your case. That's your attorney's job.

The petition against you probably contains a lot of accusations. Some of those accusations, if proven, could form the basis for a restraining order. These are things like violence, threats, and harassment. Your response should focus on denying, justifying or excusing those claims.

The petition might also include claims that would NOT form the basis for a restraining order. They're not relevant to the judge, even if they paint you in a negative light ("Respondent cheated on me with my sister, he has a bunch of DUIs, and he was emotionally controlling during our relationship", etc.). Do not waste your effort and the court's time by fixating on these types of claims. If the petitioner wants to waste his or her precious time by making irrelevant arguments, let them. Remember, though, the judge is not interested in determining whether or not you cheated during the relationship, who is responsible for your breakup, or whether or not you're a good guy. Those things are not grounds for a restraining order.

This is where a lot of litigants get off track. They get so emotional about defending their reputation or their pride that they lose sight of the actual issue that the court is trying to decide -- whether or not violence, threats or harassment has occurred. They focus too much time and effort in arguing over points that will not affect the judge's decision. I understand the impulse to do so, but you must resist that impulse.

The first step in preparing your defense, then, must be to divide the accusations into two categories: 1) accusations that could (potentially) form the basis for a restraining order if they are proven, and 2) accusations that are irrelevant, even if they sound embarrassing or salacious.

Once we determine which of the accusations could potentially form the basis for a restraining order (claims of violence, threats or harassment), then we can start forming a strategy to refute those accusations.

The most effective way to disprove false accusations is to drill down on each of them methodically and individually. Separate each false allegation and beat it to death with reliable, admissible evidence. Once you have effectively disproved one allegation, then you can move on to attack the next. Stay organized and focused in presenting your case as concisely as possible, without jumping from one point to another. For example, if you're accused of making repeated, harassing phone calls, bring a copy of your call log to prove that the calls didn't come from you. If you're accused of stalking someone on a particular occasion, bring an alibi witness to prove that you weren't in the area.

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

Thanks for reading.

Orange County Restraining Order Lawyer

How Will the Trump Administration Treat Legal Marijuana?

By now, we all know that marijuana is a Schedule I controlled substance under federal law. We also understand that federal law trumps state laws where the two conflict. The feds cannot compel the states to enforce federal drug laws, but they can use the FBI and the DEA to bust local growers and distributors, even if those growers / distributors are in full compliance with the laws of their respective states.

At last count, 8 states plus the District of Columbia have fully legalized recreational use of marijuana by adults, and something like 46 states allow some form of medical use. Voters in California overwhelmingly passed Prop 64 on November 8. That initiative will allow adults to cultivate up to 6 plants on private property and possess up to an ounce of flower in public. It will also create a comprehensive system of licensing and taxation to govern commercial sales. National polls consistently show that a majority of Americans support some form of legalization.

The Obama administration mostly took a hands-off approach to enforcement in states with permissive cannabis laws. President Obama personally opposed legalization, but he respected the will of voters in states that chose to permit adult use of marijuana for recreational or medical purposes. A new administration, though, could mean big changes for federal law enforcement priorities. 

On the campaign trail, Trump showed little concern with marijuana. He indicated support for states' rights, suggesting that he would allow individual states to enact their own policies without undue federal interference. Drug policy reformers were cautiously optimistic.

Since the election, though, President-elect Trump has sent some discouraging signals. Last week, he named Senator Jeff Sessions as his pick for Attorney General. As the head of the Justice Department, the AG is responsible for setting the policies and priorities for all federal prosecutors. For the legalization community, the appointment of Sen. Sessions represents a sky-is-falling, worst case scenario. The uber-conservative legislator from Alabama has been a lifelong anti-cannabis crusader. He famously said that "good people don't smoke marijuana", and he once joked that he supported the KKK until he learned that they smoke pot. 

Under AG Sessions, the Justice Department could begin an aggressive campaign to arrest and prosecute state-sanctioned growers and distributors. It could sue to shut down local programs that regulate and tax marijuana businesses and use the full force of federal law to drive cannabis back underground.  

Or the DoJ might follow the lead of President Trump and popular opinion polls. They could work to reform banking regulations so that more legitimate marijuana businesses can finally get a checking account. They might allow law-abiding marijuana users to purchase and possess firearms. They could reform federal tax laws to allow cannabusinesses to deduct their operating expenses so that they're not saddled with prohibitive tax bills. They might even reschedule marijuana to permit more scientific research.  

Right now, the future of marijuana in the United States is completely up in the air.  There are so many unanswered questions that nobody can accurately predict what the landscape will look like after January 20, 2017. If you're concerned about the future of legal cannabis under AG Sessions, call your senators and tell them to reject his appointment.

If you or a loved one has questions about Prop 64 and the future of legal marijuana in California, call our office for a free attorney consultation.  (714) 449-3335.  Ask for John.

Thanks for reading.

Fullerton Marijuana Lawyer

Do I Need a Lawyer to Get (or Fight) a Restraining Order?

Do you need shoes to run?  No, but they help.  The same is true for lawyers in restraining order cases.

I've handled more restraining order cases than I can count (on both sides -- representing petitioners and respondents). I've also sat in courtrooms and watched hearings for hours while I waited for my own cases to be called. You don't have to spend much time in restraining order court before you start to notice a pattern, though: litigants who show up with competent attorneys have a distinct advantage over their opponents.

Even lawyers hire other lawyers when they're involved in a restraining order cases. Representing yourself in court is almost always a bad idea. Abraham Lincoln famously said, "The attorney who represents himself has a fool for a client". Even if you knew how to remove an appendix, you wouldn't operate on yourself. Keep in mind that your opponent may be represented by a highly-trained, professional attorney. If you act as your own lawyer, you will be held to the same standards of competence.

A qualified, experienced attorney will understand the rules of evidence -- and the exceptions to those rules. For example, hearsay is inadmissible in some types of restraining order hearings. A trained attorney knows how and when to object to hearsay testimony. He or she also knows the many exceptions to the hearsay rules, and the arguments to support your position that some piece of hearsay should or should not be allowed.

Your lawyer will understand the legal issues that are relevant in your case and they can help predict the questions that the judge is likely to ask. This is crucial. I cannot understate the importance of focusing your arguments on the points that will actually affect the outcome in your case, and ignoring the irrelevant ones. The quickest way to derail your own case is to waste the court's time arguing over something that is just not at issue, no matter how important that point might be to you.

Your attorney knows how to issue subpoenas to compel witness testimony if necessary.  He or she knows how to effectively question and cross-examine witnesses who testify in court.  Your lawyer can also act as an intermediary to correspond with the opposing party and witnesses before the hearing.

Most importantly, your attorney can evaluate your case from a neutral position to identify its strengths and weaknesses. Regardless of what your friends and family are telling you, your case probably has some weaknesses -- every case does. Part of your lawyer's job is to help identify those weaknesses and to form a strategy for dealing with them effectively. It's your attorney's responsibility to "give it to you straight", not to tell you what you want to hear.

It's obviously smart to retain a qualified, local attorney if you can afford to do so. If you or a loved one has questions about restraining orders in California, call our office for a free attorney consultation.  (714) 449-3335. Ask for John.

Thanks for reading.

Orange County Restraining Order Attorney

Is it Child Abuse to Spank Kids in California?

Section 273a of the California Penal Code prohibits child abuse. Violating PC 273a can be treated as a misdemeanor or a felony, depending on the circumstances. That code section partially defines "child abuse" as "causing or permitting a child to suffer unjustifiable pain and suffering". The operative word there is "unjustifiable".

Of course, there are situations where you may be entirely justified in causing your child to suffer some pain and suffering. That's essentially what spanking is -- inflicting a degree of physical pain as a form of discipline.

In order to be considered lawful in California, spanking must be done under reasonable circumstances and without using excessive force. I understand that this is a completely subjective standard. What might be "reasonable" in your home might shock a young prosecutor in the DA's office. To determine whether or not a particular case warrants the filing of criminal charges, the DA will consider how and why the child was punished, the child's age, the degree of force that was used, whether or not the punishment caused any injuries, and other relevant considerations. Ultimately, a jury will decide whether or not the spanking was "reasonable" and lawful.

The California Attorney General and case law have affirmed parents' right to spank their children using an object other than their hand (a belt, a wooden spoon, etc.), as long as the punishment is necessary and not excessive under the circumstances.

Regardless of your personal philosophy of parenting and opinions on spanking, be advised that corporal punishment is legal in California as long as it is done by reasonable force and under reasonable circumstances.

If you or a loved one has questions about child abuse or spanking in California, call our office for a free attorney consultation.  (714) 449-3335.  Ask for John.

Thanks for reading.

Orange County Child Abuse Lawyer

What Counts as "Harassment" in a Restraining Order Case?

The law is full of strange words, like "estoppel", "pretermission" and "res judicata". It's also full of familiar words that carry special, legal definitions which differ from those words' ordinary, everyday usage. One of these common words that carries a special, legal definition -- and one that seems to cause a lot of confusion -- is "harassment".

In normal English conversation, "harassment" may describe behavior that annoys or bothers someone. In restraining order court, though, it carries a much more narrow and specific definition. If you're involved in any type of restraining order proceeding, it's crucially important that you understand how courts define "harassment".

As I've previously discussed on this blog, restraining orders may be granted when the petitioner can prove that he or she has been harassed by the respondent, or that the respondent has committed actual violence or credible threats of violence against the petitioner. Violence and threats are pretty self-defining, so they don't require a lot of explanation here.

As I've also discussed, courts are not in the business of getting involved in every situation where one person is annoyed by another person's behavior. Being the subject of a restraining order may have severe consequences for the person whose behavior is restrained. He or she will be stripped of their right to own or possess firearms. The restraining order will become a public record which may affect the restrained party's employment. It could result in the loss of some professional licenses. Courts don't take these consequences lightly. They will not strip people of their rights just because their behavior annoys or bothers someone else.

To prove "harassment" in a restraining order hearing, the petitioner must establish several elements:

• That the respondent has engaged in a "course of conduct". Harassment involves a pattern of behavior that takes place over time, not just on a single occasion. That course of conduct must demonstrate a "continuity of purpose".
• The course of conduct was directed at the petitioner. It is not sufficient to simply prove that the respondent is an asshole in general, has been an asshole to other people on other occasions, or that something he does annoys you. For example, the court will not grant a restraining order just because your neighbor smokes a cigar inside his apartment, the cigar smoke comes through the vents into your apartment, and your neighbor is aggressive towards other people in the complex. The court does not care if you're especially sensitive to cigar smoke or if other people are afraid of your neighbor. Those behaviors might annoy you, cause you distress and interfere with your right to peacefully enjoy the privacy of your own residence, but they're not intentionally "directed at you", so they're not the basis for a restraining order. 
• The course of conduct serves no lawful purpose except to annoy you or to cause you distress. If your neighbor constantly complains to Code Enforcement over every ticky-tacky parking violation, your neighbor is a whiny asshole. Unfortunately, you cannot get a restraining order against someone for being a whiner. The court will not order someone to stop whining if they have some lawful basis for doing so, no matter how much their whiny behavior annoys you.  
• The behavior would cause a reasonable person to suffer substantial emotional distress. It's necessary but not sufficient to prove that the behavior caused you to suffer emotional distress. The court does not care if you're especially sensitive, fragile, or unreasonable -- those are not compelling reasons to strip someone else of their rights. If you want a restraining order, you must prove that the respondent's behavior was so outrageous that a normal, healthy individual would have been seriously distressed by it. I've been involved in plenty of cases where the petitioner comes to court with stacks of records from their therapist to demonstrate how the respondent's mildly-annoying behavior has exacerbated his or her preexisting health condition (anxiety, insomnia, depression, high blood pressure, etc.). It sounds cold, but the court isn't concerned with any of those things if the respondent's behavior would not have similar effects on an otherwise healthy, normal person. 
• Also keep in mind that "substantial emotional distress" is more that mere annoyance. I've had plenty of roommates, neighbors, coworkers and classmates whose behavior has annoyed me. We all have. Most of those annoyances, though, are not sufficient grounds for the issuance of a restraining order. At the risk of repeating myself, courts are not in the business of getting involved with every dispute that arises between individuals. They cannot and will not order someone to be polite. If rudeness were a legal cause of action, we'd need a bigger courthouse.  

Harassment can be much more complicated and difficult to establish than many litigants imagine. Even if you have been the victim of harassment, proving it in court with reliable, admissible evidence is another story. 

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

Orange County Restraining Order Lawyer

Lobster Season = DFG Enforcement Season

California's recreational spiny lobster season officially began on October 1 this year.

Traditionally, the majority of legal lobsters are caught during the first few weeks of the season. The water is still warm enough to free dive for bugs, the days are still long and the weather is still pleasant enough to draw anglers.

This is the time of year when I start getting calls from divers and fishermen who've run afoul of California's complicated fishing laws. If you're going to hit the water in search of those delicious bugs this season, keep a few rules in mind. By learning and practicing these basic commandments, you might save yourself from a costly citation, a day in court, and a criminal record. A violation of any fishing regulation may be treated as a misdemeanor. The maximum penalty for most of these violations includes 6 months in jail, high fines, probation, loss of fishing privileges and and forfeiture of your gear. Prosecutors take these cases seriously. You should, too.

• Carry a valid California sport fishing license with salt water endorsement AND a spiny lobster report card.  These documents must be in your immediate possession while you are fishing or taking lobster.  If you are diving from a boat, you may leave the licenses on the boat.  If you are diving from shore, you must leave the licenses within 500 yard from your point of entry.

• Fill out your lobster report card BEFORE you begin fishing.  If you are approached by wardens from the California Dept of Fish & Wildlife (formerly, Fish & Game), they will inspect your report card.  If the date and location has not already been filled in, you will be cited.

• Use an approved lobster gauge and measure carefully.  A legal lobster must measure at least 3.25" from the eye socket to the rear of the carapace, along a line parallel to the center of the body shell. A proper lobster gauge should be made of a rigid material, like metal or hard plastic, and not a soft tape measure. A soft tape measure will follow the curvature of the lobster's shell and may cause undersized lobsters to falsely appear legal. Don't fudge it. Fish & Wildlife wardens will not be fooled, they will not give you "the benefit of the doubt", they will not issue warnings, and they will not do you any favors. When in doubt, throw it out.

Here's a photo that demonstrates the proper technique for measuring a spiny lobster.  This bug is clearly undersized:

Photo credit: cdfwnews.wordpress.com

• Lobsters may be taken by hand or by hoop net only.  No traps allowed except with a commercial license.  If you snag one while bottom fishing, you must toss it back.

• Lobsters must be whole / "in measurable condition" when they are brought ashore. If you remove the tails at sea, Fish & Wildlife wardens on the docks cannot verify that the bugs are the legal length. You will be cited if you come ashore with a cooler full of lobster tails, or if wardens board your boat at sea and discover immeasurable lobsters.

• Check an up-to-date map to ensure that you're not fishing in a protected area. The ocean off Southern California is home to 50 different "Marine Protected Areas", including "Marine Reserves", "Marine Conservation Areas" and "Special Closures".  Each of these areas is governed by specific rules and regulations regarding what (if anything) may be taken or pursued within its designated boundaries. The areas are not marked by signs, so anglers are responsible for studying their maps.

If you or a loved one is cited for any fishing violation in Southern California, call the office with the experience and knowledge to ensure that you get the best result possible.  Free consultations. (714) 449-3335. 

Thanks for reading.

Catalina Attorney