Weapons Law 101: The "Innocent Use" Defense

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

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

Weapon?

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

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

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

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

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

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

Thanks for reading.

Fullerton Weapons Lawyer

Buccaneer Days Returns to Catalina. Save My Number!

It's that time again!  Buccaneer Days, an alcohol-fueled weekend of "grub & grog" returns to Catalina Island September 29 - October 2.

This year's lineup includes 4 days of live bands, DJs, costume contests, food, booze and general good times. The fish are still biting in the waters around Catalina and spiny lobster season officially begins October 3.

There should be plenty of great opportunities to get yourself into trouble.  If you're planning to attend Buccaneer Days in Catalina this year, please be safe, be smart, and save my number now. (714) 449-3335.

Our firm handles more criminal defense cases on Catalina than any other private attorneys in California. We have experience defending against all the most commonly-charged crimes that arise in and around Catalina, including fishing violations, drunk in public, DUI (even in a golf cart) and assault / battery. If you're arrested or cited on the island, call us for a free attorney consultation. Ask for John.

Thanks for reading and have fun this weekend.

Catalina Lawyer

Catalina Island Court: A Nightmare in Paradise

I was back in court on Catalina Island this past Friday, May 13.

If I've learned anything from my experiences in Catalina court, it's to expect the unexpected. It doesn't take much to gum up the works at the Catalina courthouse. Delays and complications are part of the routine.

The Catalina Courthouse, nestled in the beachside community of Avalon, is only open on alternating Fridays. The judge, prosecutor, clerk and court reporter commute by helicopter from San Pedro when the court is in session. The slightest inclement weather, however, often means that the helicopters can't fly. When that happens, cases may be postponed until the court's next available date. And since the courthouse is only open every other Friday, the next available court date might be weeks or even months away.

I usually take the Catalina Express ferry to and from the island, but it's not much more reliable than the helicopter. I've been stranded on the island for days because boats couldn't cross the channel due to high winds, rough seas, or debris in the Long Beach Harbor.

Even when the weather cooperates, the human element is an unpredictable variable. I've had cases continued (routinely) because the DA or the court staff forgot to bring a file or some important paperwork from the mainland. It's all part of the experience when you go to court in Avalon.

This week, the culprit was fog. The helicopter was grounded due to poor visibility, so the court staff was stranded in San Pedro. The courtroom in Catalina was full of attorneys and defendants with cases on calendar, but nothing happens in court until the judge shows up. So we waited. And waited. And waited a little longer for the marine layer to burn off.

The court staff appeared around 11:45. The good news is that we were able to hear our cases without unnecessary continuances. The bad news is that everybody in court missed the boat that was supposed to take us back to the mainland at 12:15.

The next boat on the day's schedule left at 3:30, so we had a few hours to kill. I made myself comfortable at the Marlin Club. There are worse places to be stranded for a day.

There are plenty of great activities to enjoy on Catalina Island, but going to court is not one of them. If you're arrested or cited on Catalina, hire a local attorney to make your court appearances so you don't have to. I can save you the time, hassle and expense of experiencing this adventure for yourself. I appear in Catalina regularly, and I even make appearances for other attorneys who are unavailable to make the trip.

If you have questions about appearing in court at the Catalina courthouse, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.  Thanks for reading.

Catalina Island Lawyer

Appearing in Court at the Harbor Justice Center in Newport Beach: What to Expect

The Harbor Justice Center is located at 4601 Jamboree Rd. in Newport Beach, CA. From the 405 freeway, exit at Jamboree and head west for about a mile. From the 73 toll road, exit at Bristol and head east on Jamboree for a mile.

The Harbor courthouse hears criminal matters from Aliso Viejo, Irvine, Dana Point, Laguna Beach, Laguna Hills, Laguna Niguel, Laguna Woods, Lake Forest, Mission Viejo, Newport Beach, Rancho Santa Margarita, San Clemente and San Juan Capistrano.

There is a large lot with free parking, but it fills up quickly. Arrive early, or else plan to circle the lot for a while.

If you need to make a payment or speak with a clerk about your case, you can do so at the outdoor walk-up window, located next door to the building's main entrance. The walk-up window allows many people to quickly and conveniently handle their matters without going through the security screening process.

Like all the other courts in Orange County, security screening includes metal detectors and x-rays of any bags. They will not allow you to bring weapons, tools, sporting equipment, skateboards or cigarette lighters into the building.

Once you're inside the building, find your name on the electronic display board, near the stairs. The board will direct you to the appropriate courtroom. If your name is not on the monitor, speak to the clerk.

Most misdemeanor arraignments are heard upstairs, in department H-8. For more information about what to expect at a misdemeanor arraignment, see my previous post about appearing in the North Justice Center.

If you plead "not guilty" at your arraignment in a misdemeanor case, your subsequent pre-trial conferences will be conducted across the hall, in department H-1.

Most felony arraignments are now being heard in department H-7, but check the monitor to be safe.

Remember to dress appropriately -- no hats, sandals, shorts or tank-tops. Silence your phone or turn it off completely so that it doesn't ring in the courtroom.

There is no cafeteria inside the Harbor Justice Center, but there are plenty of places to eat in the area.

If you or a loved one has a court date at the Harbor Justice Center, call us for a free consultation.  (714) 449 3335. Ask for John.

Thanks for reading.

Newport Beach Criminal Defense Attorney

Appearing in Court at the North Orange County Justice Center in Fullerton: What to Expect

If you've been arrested or cited in North Orange County, your court appearances will probably be held at the North Justice Center in Fullerton.  North OC includes Anaheim, Fullerton, Buena Park, Brea, Yorba Linda, La Palma, La Habra and Placentia.

Today's post is about what to expect when you appear at the Fullerton courthouse.

The North Justice Center is located at 1275 N. Berkeley Ave., near the corner of Harbor Blvd. and Valley View, just north of Downtown.  From the 91 freeway, exit at Harbor and head north for about 2 miles.

First, some good news:  Plenty of free parking.  The courthouse in Fullerton features two large parking lots. If the upper lot is full, check down below.

Be prepared to go through a security screening, including a metal detector and x-ray of your bags.  They will not allow you to enter the building with any type of weapons, tools, sporting equipment, skateboards or cigarette lighters.

If you received a letter in the mail instructing you to appear in court, check the electronic monitors for your name as soon as you enter the building.  The big T.V. screens will direct you to the appropriate courtroom.  If your name does not appear on the screen, go straight to the clerk's office in room 350, located on the 3rd floor.

Misdemeanors

If you're appearing in Fullerton for your first appearance in a misdemeanor case (including DUI), your matter will probably be heard in department N-12 on the 4th floor.  Your first appearance is called the "arraignment".  At your arraignment, the judge will officially notify you of the charges.  You will have an opportunity to resolve your case on the spot by simply pleading "guilty" if you choose to do so.

You or your lawyer must personally appear at the arraignment.  Nobody else may appear for you unless he or she is a licensed attorney.  Do not send your mom or your spouse to court on your behalf.  If you fail to appear, a warrant will be issued for your arrest.

Most misdemeanors in North Orange County are prosecuted by the Orange County District Attorney's Office.  Anaheim has it's own prosecutorial agency within their City Attorney's Office that handles all misdemeanor cases arising within the City of Anaheim.  Once you find your courtroom, the next step is trying to determine who your prosecutor will be.  If you were cited or arrested in Anaheim for a misdemeanor, then you will probably be prosecuted by the Anaheim City Attorney rather than the Orange County District Attorney.  This gets complicated. If two people are arrested for the exact same crime across the street from each other -- one in Orange and the other in Anaheim -- the person arrested in Anaheim will be prosecuted in Fullerton by the Anaheim City Attorney.  The person arrested in Orange will be prosecuted in Santa Ana by the Orange County District Attorney.  Even if the cases are closely related, the prosecutors in each case might not even be aware of the other.

Your arraignment is not the day for your trial.  The judge will not hear witnesses or evidence at the time of your arraignment.  He will not allow you to explain yourself or to tell your side of the story.  If you do not believe that you are guilty, or if you want to consult with an attorney before deciding how to proceed, you may either apply for the services of the Public Defender, or you may ask for a brief continuance to retain your own private attorney.  If you tell the judge that you want to hire a lawyer before making any decisions, he will assign a new court date in 2-3 weeks.  You will not be punished for requesting an opportunity to talk to a lawyer.  In most misdemeanor cases, your private attorney can appear at the next hearing(s) without you.

If you request the services of the Public Defender at your arraignment, you must fill out a financial declaration so that the clerk can determine whether or not you qualify for court-appointed counsel.  You may be billed for the Public Defender's services if the court determines that you have the ability to pay those costs.

After pleading "not guilty" at your misdemeanor arraignment, your case will be scheduled for a series of "pre-trial conferences" around the corner, usually in department N-9.  At these pre-trial conferences, your attorney will have a chance to sit down with the prosecutor to discuss details of your case.  The prosecutor and your attorney will attempt to negotiate a fair disposition.  Depending on the unique facts and circumstances of your case a "fair disposition" could be a dismissal, a reduction of charges, or a negotiated plea bargain.  Attorneys will also exchange "discovery" -- evidence that would potentially be used by either side at trial.  Your lawyer might share a "mitigation packet" with the prosecutor -- a collection of documents, character letters, proof of attendance at AA meetings, medical records, etc. -- to argue for leniency.

Your attorney and the prosecutor can have several pre-trial conferences while they attempt to work towards a resolution.  If no agreement can be reached, or if you do not wish to accept any plea deal, then your case might eventually proceed to trial.  If that happens, then you will be sent down the hall to department N-4.  Department N-4 controls the "master calendar" for the North Orange County Justice Center.  There, a judge will assign your case to a courtroom for trial, based on the court's availability.  If there are no courtrooms available in the Fullerton courthouse, your case can even be transferred to another courthouse in Orange County for trial (Westminster, Santa Ana or Newport Beach).

Felonies

If you're appearing in Fullerton for a felony case, your arraignment will probably happen on the 3rd floor, in department N-3.  The felony arraignment procedure is similar to misdemeanor cases, except that the judge will not allow a defendant to simply plead "guilty" at his or her first appearance, even if the defendant wants to.  Felony cases are too serious and too complicated to wrap up cleanly in a single appearance.  Your attorney will need to thoroughly review the allegations and the evidence before advising you whether or not to accept any plea deal in a felony case, and that's not possible at the arraignment stage.

After pleading "not guilty" in your felony case, you will have a series of pre-trial conferences, just like in misdemeanor cases.  Again, your attorney will sit with the DA, discuss the evidence, and try to negotiate a fair resolution.

If no reasonable resolution can be agreed upon, then your felony case will proceed to the "preliminary hearing" stage.  At the prelim, the DA will present evidence to try to convince a judge that there exists "probable cause" to "hold you to answer" for the charge.  The DA must prove that there is a good reason to believe that a felony has been committed and that you are the person who committed it.  They will usually call an investigating officer who may testify as to what he saw and heard at the time of your arrest.  The investigating officer may even testify as to "hearsay" during the prelim, even if some of these statements might not be admissible at trial.

If the judge finds that there exists "probable cause" and he decides to "hold you to answer" after the preliminary hearing, then you and your attorney will begin to prepare for trial. Long, complicated trials are usually transferred to Santa Ana. The Santa Ana courthouse is better equipped to accommodate large jury pools, crowds of spectators and reporters, and lengthy matters that might occupy a courtroom for weeks at a time.

Post-Conviction Proceedings

If you've previously been convicted of a crime, you were probably placed onto probation with lots of terms and conditions imposed. The judge might have ordered to you complete classes / counseling, take drug tests, attend AA meetings, perform community service, or pay fines. You might also have "progress report hearings" scheduled.

A "progress report hearing" is just what it sounds like -- a chance for the judge to check up on the progress of whatever program(s) you were ordered to complete.

Judges in Fullerton are notoriously strict at progress report hearings.  They expect you to fulfill your end of whatever bargain you agreed to.  If you have failed to comply, then the judge will almost certainly impose consequences.  Those consequences may include jail time.  Judges in Fullerton will not be moved by sad stories.  They don't care that the court-ordered classes have been inconvenient for you to attend or that they conflict with your work schedule.  They will not sympathize if you cannot coordinate transportation or child care.  They expect you to comply.  If you demonstrate that you cannot or will not comply with the terms of your probation, then those terms will simply be converted to straight time in the Orange County Jail.

If you expect to have trouble complying with the terms of your probation, or if you know that a violation is imminent due to circumstances beyond your control, you or your attorney must go before a judge before you miss a court-imposed deadline.  Explain the problem and bring any supporting paperwork to show the judge.  If you can demonstrate that you are making a good-faith effort to comply, and you are proactive about bringing your problem to the judge before your problem becomes a violation, then the court might accommodate you.  The judge can grant you an extension or convert a portion of your sentence (e.g., fines to community service, or vice versa).

That's the short version of what to expect when appearing in court at the North Orange County Justice Center in Fullerton.  Here's a cheat-sheet for important offices located inside the building:

-Collections Department:  1st floor.  They accept payments for all criminal and traffic matters. The line gets long by mid-morning. I'd recommend getting there early.

-Criminal & Traffic Clerk:  3rd floor. If you show up but your name is not on the electronic screen, check in here. Start here if you need to add yourself onto the court's calendar (to recall a warrant, to request an extension for something, etc.).

-District Attorney's Office:  3rd floor, along the North wing.

-Probation Department:  3rd floor, near the Criminal & Traffic Clerk

-Anaheim City Attorney's Office:  4th floor, along the South Wing

-OneOC (Volunteer Center):  4th floor. Go here to sign up for community service if the judge orders you to do so. OneOC will assign you to an approved non-profit group in your area where you may perform your labor.

If you or a loved one is arrested in Fullerton / North Orange County, or if you have a pending court date in the North Justice Center, call us for a free consultation.  (714) 449 3335. Ask for John.

Thanks for reading.

Fullerton Criminal Defense Attorney

Buccaneer Days Returns to Catalina Island -- Retain a Good Lawyer Now

It's that time of year again!  Buccaneer Weekend will descend on Catalina Island October 1-4, 2015.  The annual festival marks the unofficial end of tourist season and the official beginning of spiny lobster season.

The holiday is traditionally celebrated with lots of alcohol and very few clothes.  The influx of weekend revelers brings a boon to local businesses, including criminal defense attorneys (such as myself).

This year's party will include 4 days of live bands, DJs, dancing, an adult costume contest, an adult treasure hunt and boatloads of beer.  With so many great ways to get yourself into trouble, you'd be smart to save this number now: (714) 505-2468.

If you are cited for any misdemeanor on or near Catalina Island, you will be given a court date and ordered to appear back on the island in a couple months for your arraignment.  You cannot simply appear in Long Beach at your convenience, despite whatever bad legal advice you might hear.

In most cases, I can make your court appearances for you.  I can save you the time, hassle and expense of traveling all the way back to Catalina for a series of hearings.  As your attorney, I will appear in court on your behalf for your arraignment (your first court appearance).  At the arraignment, the court will provide me with a copy of the police report and other discovery that the DA plans to use against you.  I will enter a plea of "not guilty" and I will schedule another court appearance 4-6 weeks later.  This gives me plenty of time to review the evidence, conduct any investigation that needs to be done, discuss the facts of the case with you, and decide on a plan of action.

When I return to court for the next scheduled appearance, the DA and I will begin the process of trying to reach a mutually-agreeable deal to resolve your matter.  Depending on the unique facts of your case, a "mutually-agreeable deal" can mean a lot of things.  I will make as many appearances as it takes to ensure that your case is handled properly.  Our priority is always to help you reach the most favorable outcome possible -- and to save you some time and money in the process.

The Catalina courthouse is completely unlike most local courts.  It consists of a single room with one judge and a small staff.  It is highly advantageous to use a lawyer who understands the strange system that they have in place and who knows "how things are done" on the island.  We have an excellent relationship with the prosecutors who are responsible for handling all criminal matters on the island.  This helps us make great deals on behalf of our clients.

If you or a loved one is cited at Buccaneer Days on Catalina Island this year, call us for a free consultation.  The number is above, but here it is one more time:  (714) 505-2468.  Ask for John.

Thanks for reading.

Catalina Island Lawyer

Police Took My Marijuana. Can I Get it Back?

Since the passage of Prop. 63, adults in California may use, possess and cultivate marijuana for their personal use. Despite its legal status, though, marijuana remains highly regulated and controlled. Just like alcohol, individuals may not sell, transport or distribute the substance without the appropriate licenses.

Prior to the adoption of Prop. 63, medical marijuana was governed by a patchwork of state laws and ballot initiatives. Taken together, Prop. 215 (The Compassionate Use Act) and SB-420 (The Medical Marijuana Program Act) provided a lot of protections for Californians who used medical marijuana with a doctor's recommendation. Unfortunately, I still encounter many people who are surprised to learn that those protections don't go as far as they had imagined.

If you're found in possession of a significant amount of marijuana or if you are caught cultivating more than 6 plants at a time, you should expect to be arrested. You should also expect that the police will seize your cannabis and your growing equipment. They will claim that the property is intended for illegal distribution and thus, it is contraband (because, as stated above, commercial marijuana is still highly regulated).

Eventually, the DA might decline to pursue criminal charges against you, or your attorney might successfully petition the court to dismiss those charges. Even after you have been exonerated of any criminal wrong-doing, though, the police might still refuse to return your cannabis and your expensive growing equipment.

That's where I step in.

There is a process in California for obtaining a court order, signed by a judge, directing the local police department to give you back your property if you can prove that you are the lawful owner of the property and the property is not contraband or evidence in a pending criminal case. The property at issue can be a car, a computer, a weapon, a pile of cash, or even your marijuana. Of course, when marijuana is involved, the process is a little more complicated, but don't be discouraged. Our firm has experience in fighting on behalf of cannabis consumers and growers.

A petition for the return of marijuana in California is called a "Kha" motion, named for the case in which the argument was first applied. In order to prevail on your Kha motion, you and your attorney will need to convincingly demonstrate several things.

First, we must show that you are lawfully entitled to possess marijuana. This used to mean proving that your doctor had actually recommended the use of medical marijuana to treat some serious medical condition. Today, it just means that you are over 21 years of age and that the quantity found in your possession was not "excessive".

After we prove that you are authorized to possess or cultivate the quantity that was found in your possession, we must prove that the marijuana is not evidence in any pending criminal case. Even if you are allowed to possess or grow a certain amount, you could still be criminally liable for illegally selling / distributing that marijuana or engaging in some other marijuana-related crime (like manufacturing hash oil without the appropriate permits). Talk to your attorney about any potential risks involved with petitioning for the return of your medicine. By testifying on your own behalf, you could incriminate yourself by admitting that you possessed more than the legal limit or that you were involved with illegal distribution.

If your marijuana is destroyed by police during its seizure or its storage, you may also be entitled to compensation for its fair value.

The fight for marijuana rights in California has been long and hard-fought. For years, seriously ill patients were subjected to imprisonment for using the only medicine that granted them relief. We've come a long way since voters approved medical marijuana in 1996. Cannabis continues to gain acceptance and consumers are winning more protections with each courtroom victory. Unfortunately, many law enforcement agencies refuse to recognize this progress. Some police departments are still trained to believe that cannabis is inherently dangerous. They will cut down your crops, arrest you and take you to jail, understanding that most people simply don't have the time or the resources to assert their rights. Too often, they're right. Don't let them get away with this. If police are running roughshod over your rights, hold them accountable. Take a principled stand, demand the return of your property and let them know that it's time to stop abusing cannabis consumers in California.

If police have seized your medical marijuana, call our office for a free attorney consultation. (714) 449-3335.  Ask for John.

Thanks for reading.

Fullerton Marijuana Lawyer

How to Get an Expungement in California

If you've been convicted of a crime in California, you may be eligible to clean up your record with an expungement.  Expungements are governed by section 1203.4 of the Penal Code.  Once granted, they have the effect of dismissing a case against you after you've finished serving all your penalties.  After your record has been expunged, you can honestly tell most employers that you have no criminal convictions in your past. Like everything else in the law, though, there are some exceptions.  I'll get into those below.

In order to qualify for an expungement, you must meet the following criteria:

1) You were convicted of a crime in California (infraction, misdemeanor or felony, with a few exceptions).
2) You were NOT sentenced to state prison (county jail is OK, but state prison is not).
3) You received probation and you successfully completed your term of probation without any violations, OR you received a terminal disposition (no probation) and you've waited more than one year since the conviction, OR you violated probation, but there's a very compelling reason why the judge should make an exception for you and grant the expungement anyway.
4) You have no other active, open or pending criminal cases, and
5) You're not currently on probation or parole in any other cases.

If all of these factors are satisfied, congratulations!  You're probably eligible to petition the court for an expungement.

To start the process of your expungement petition, you (or your attorney) must complete a couple documents, called a "CR-180" and a "CR-181", available here.

After filling out those forms completely, they must both be properly served on the DA who prosecuted your case and they must be filed with the court where your case was heard.  Service must be made by someone else (you may not serve your own documents).  The person who mails or delivers the documents to the DA must also complete a "proof of service" form and include that document when the petition is filed with the court.  The court's filing fee for expungement petitions varies from $60.00-$150.00.

Once your petition packet has been served on the DA and filed with the court, the DA has 15 days to respond with any reasons that they believe the petition should not be granted (for example, if they believe that the petitioner did not successfully complete probation or if they believe that the petitioner has some other active, open cases.  The process can get complicated if the petitioner has a common name and other people with the same name have recent criminal activity).

Next, a judge will review your petition and the DA's response.  Typically, if you are clearly eligible and the DA has no opposition, the judge will simply sign the proposed expungement order and will return it to you by mail within 6-8 weeks.

If the DA opposes your expungement petition, the court will schedule a hearing for both sides to appear before a judge and to explain why the expungement should or should not be granted.

After your expungement petition is granted and signed by a judge, your criminal record will be amended to show that your old case has been dismissed.  An expungement will not completely erase the case from your record, but it will erase the fact that you pleaded "guilty" or "no contest", or that you were convicted by a jury.  For most private employers, that's as good as if the whole matter never happened.  As I mentioned above, though, there are some exceptions.  If you apply to be a police officer or if you seek to enter some profession that is licensed by the state (e.g., doctor, lawyer, nurse, dentist, notary, bail bondsman, contractor, insurance broker, Realtor, etc.), the licensing body responsible for that profession may still consider the prior conviction.  The same is true if you own a market and you apply to sell lottery tickets.  For some reason, the state lottery does not recognize California expungements.

This is the expungement process in a nutshell, but it's obviously a lot more complicated than that.  If you have questions about your eligibility for an expungement in California, call our office for a free consultation.  I'll never charge you a penny to answer your questions.  If this entire process sounds too complicated or time-consuming, let us handle everything for you.  We have extensive experience with expungements in all Southern California courts, including in Los Angeles, Orange, Riverside, San Bernardino and San Diego Counties.  Our fees are competitive and depend on the nature of your case.

Other firms will quote you a low price to get started, then they'll bury you in hidden fees.  We never charge hidden fees.  I will quote you a fixed price up front.  I will also be personally responsible for your case until it is resolved.  You will never be handed off to an intern or a less-experienced junior partner.

Invest in your future by cleaning up your past.  Don't waste another day if your old mistakes are standing between you and a better job.  Call for a free consultation (714) 449-3335.  Ask for John.

Thanks for reading.

Orange County Expungement Attorney

Appearing in Court on Catalina Island (Avalon Courthouse)

Save yourself the time, hassle and expense of traveling back to the island for a court appearance -- Have an experienced, knowledgeable, local attorney do it for you.

Catalina Island, located approximately 22 miles off the coast of Orange County and Los Angeles, California, is home to a small, one-room courthouse. The courthouse is open on alternating Fridays. It generally hears only misdemeanor criminal cases, infractions (minor traffic matters, etc.) and restraining orders. Felony cases and more serious matters are usually sent to Long Beach.

The City of Avalon, nestled on the southeast corner of the island, is only home to about 2,200 full-time residents, but the population swells between the months of April and September. Tourists, fishermen, divers, hikers, families, boaters and adventure-seekers descend upon the community to enjoy the island's temperate climate and unspoiled, scenic beauty. Each fall, the town of Two Harbors also hosts its Buccaneers Weekend pirate party, a legendary festival that marks both the unofficial end of tourist season on the island and the official beginning of lobster season statewide.

Catalina and its surrounding waters are home to world-famous fishing and diving. It also hosts several marine reserves and designated "conservation areas". These areas are not clearly marked, but fishing within one of them will result in heavy fines and possible forfeiture of your gear. Many visitors are surprised to learn that they've accidentally strayed into a protected area. They're equally surprised when Fish & Wildlife agents show up, cite them, and confiscate their valuable fishing equipment. Remember, it is the individual fisherman's responsibility to know and comply with all local laws and regulations. Ignorance of the law is no defense to the crime of fishing within a protected area.

Visitors are also responsible for correctly identifying their catches and complying with local rules regarding limits, allowable sized fish, season restrictions, etc. California fishing laws are no joke. As mentioned above, they often carry stiff penalties that may include high fines, jail time, probation, forfeiture of your equipment and an embarrassing blemish on your criminal record.

If you've been arrested or cited while visiting Catalina Island, a quality, local attorney can guide you through the process to ensure that your rights are preserved and that you walk away with the best outcome possible. Our professional staff will work with you, the court and prosecutors to beat your case or to negotiate a fair disposition. Our goal is always to make the process as painless and stress-free as possible for you.

Our firm has extensive experience in defending against all types of criminal issues that arise on Catalina Island -- Avalon, Two Harbors, and everywhere in between. The most common issues we see on the island include DUI (driving a car, a boat or a golf cart under the influence), domestic violence, assault / battery, disturbing the peace, being drunk in public, possession of drugs or paraphernalia, and various fishing violations. We can often make your appearances for you, without you having to be personally present in court. Save yourself the time, hassle and expense of traveling back to the island for a court appearance (or a series of court appearances) -- have a local attorney do it for you.

We're familiar with the local judge, court staff and prosecutors. We know "how the game is played" on Catalina Island and we typically get fantastic results for our clients. Of course, each case is unique. Past performance is no guarantee of future success. The results of your case will depend upon its specific facts and your criminal history.

You have a choice in hiring a lawyer. Many attorneys serve the Avalon courthouse and most of them tout their local knowledge and experience, but I actually know the difference between a Canary Rockfish and a Vermilion Rockfish.

If you've been cited or arrested on Catalina Island, call our office for a free attorney consultation. (714) 449 3335.

Thanks for reading.

Catalina Island Lawyer

Update on Medical Marijuana in California

Updated 9/16/15:  The California Legislature has approved a set of laws that will completely change the way medical marijuana is regulated in the state.  Follow the link for more information regarding the Medical Marijuana Regulation and Safety Act.  

A Los Angeles appellate court handed down a decision last week that could dramatically change the way that dispensaries conduct business in the state.  If you operate or grow for a collective, you must be aware of the new rules (or new interpretation of the old rules).

California law allows qualified patients to form non-profit organizations for the purpose of cultivating and distributing marijuana among themselves.  The authors of the law envisioned a group of patients who would pool their resources and designate one member of the group to cultivate all of the medicine for the entire club.  Members of the club would then compensate the club for the value of the medicine that each member consumed, and the club would compensate the grower for his expenses, plus the value of his time, labor and skill.  Money may change hands during these transactions, but clubs were -- and are -- prohibited from acting on a for-profit basis.  

Defendant in this case, Brian Mitchell, was the designated grower for a collective in Los Angeles. He was a member of the club and had proper documentation to prove that he was both a qualified patient and a duly-designated cultivator.  Mr. Mitchell established his own corporation, Herbmetics, Inc., for the purpose of cultivating medical marijuana on behalf of the club.  He obtained seller's permits in his own name from the state Board of Equalization and paid taxes as required.  

Mr. Mitchell was arrested and convicted for illegally cultivating marijuana in state court.  At trial, it was determined that the club to which he provided his cannabis, "Keeping It Medical", was improperly organized as a for-profit corporation.  Since K.I.M. operated for profit, a judge ruled that Mr. Mitchell was not entitled to rely upon the limited immunity provided under California's medical marijuana laws.  He was convicted, and a court of appeals recently affirmed the conviction.  

The court did a very poor job of explaining their reasoning in this case.  I've read the opinion, and I'm still not clear on what the judges determined to be the deciding factor.  I spotted several issues where the judges seemed to focus their attention, but they never gave any indication as to what they found most compelling -- or how someone might avoid those pitfalls in the future.  Here are some of the factors that I think steered the court's judgement:

-The fact that the club itself, "Keeping It Medical", was organized as a for-profit corporation (rather than a cooperative, a collective, or a not-for-profit mutual benefit corporation).  Since California's medical marijuana laws allow patients to collectively cultivate marijuana on a not-for-profit basis, the court found that individuals or clubs who operate on a for-profit basis may not avail themselves of the limited immunity provided under HS 11362.775, even though the defendant was a member / vendor and not the owner or operator of K.I.M.

-The fact that Mr. Mitchell formed his own corporation, Herbmatics, Inc., and sold his product to ANOTHER corporation, K.I.M.  The law doesn't say anything about this type of arrangement, but courts and law enforcement agencies frown upon dealers who sell outside of their own non-profit organization.  According to the California Attorney General's interpretation of the law, medical marijuana clubs may cultivate their OWN cannabis, but they should not buy or sell medicine outside of their own closed-loop distribution network.  Again, the law is silent here, but medical marijuana entrepreneurs who grow under one corporate name and sell to another corporation will enjoy fewer legal protections than clubs that maintain ownership of their own plants from seed to flower.  

-The fact that the Mr. Mitchell's written agreements with K.I.M. provided for a set annual salary, regardless of his costs or the quantity of cannabis that he provided to the club.  As discussed above, money may change hands during these types of transactions, but parties must be able to demonstrate that the costs of the marijuana are reasonably related to the grower's expenses.  If the grower is making significant income but cannot prove the value of his costs and labor, he's going to have a hard time defending himself in court.  

Expect this case to work its way up to the State Supreme Court, where the rules are likely to get flipped on their heads again.  Until we get a more coherent set of laws on the subject, more people like Mr. Mitchell are likely to end up behind bars for activities that they honestly believed were protected under the law.  

Speaking of....

California might soon get a more coherent set of medical marijuana laws!  The State Senate Health Committee recently approved SB 1262, a proposed set of regulations to govern medical marijuana here in California.  The new regulations had been opposed by CA NORML, which was primarily concerned with some provisions that would have limited the ability of doctors to recommend marijuana to their patients.  After those provisions were dropped from the bill, CA NORML Director Dale Gieringer declared that it "was on the right track".  

If passed by the full Senate and State Assembly, the bill will require doctors who recommend marijuana to also discuss possible side effects of the drug with their patients.  They would also be responsible for conducting appropriate examinations and follow-up consultations with patients.  It would impose penalties for doctors who fail to properly examine patients before recommending marijuana.  

The bill will explicitly allow cities and counties to restrict or prohibit marijuana dispensaries within their borders.  It will establish systems for licensing cultivation sites and for assuring quality and purity of cannabis sold at dispensaries.  The law will also require dispensaries to adopt certain security measures to prevent thefts.  

Medical marijuana advocates believe that the regulations are valuable to clarify the legal protections for growers, transporters, dispensary operators and others involved in this budding industry.  The federal government has also pledged to respect state marijuana laws where there is a "strong and effective" regulatory scheme in place.  Until now, however, California's regulatory scheme has been neither strong, nor effective.  This absence of clear guidance has exposed patients to federal raids. Hopefully, a clear and concise set of rules in California will help seriously ill patients access their medicine while reducing crime and the other harms associated with our great social experiment.  

If you have questions about medical marijuana in California, call The Law Offices of John W. Bussman for a free consultation.  (714) 505-2468.  Thanks for reading.  

Popular Myths Surround the Origins of "420 / 4:20 / 4/20"

I hear a lot of questions and myths around this time every year regarding the origins of "420".  While this isn't exactly a legal question, it is a question that "OC's Premier Marijuana Defense Attorney" should be able to answer, so I did the research.  

Whether expressed as a 3-digit number ("420"), a time ("4:20"), or a date (4/20), the number has become synonymous with marijuana.  It is often used to identify head shops and marijuana dispensaries.  Affixing one of these stickers to your rear bumper can also be a handy way to attract attention from police.  

As the number gains popular recognition as a "code" for marijuana, myths regarding its origins have also spread like weeds (bad pun intended).  I've taken a moment here to dispel a few of the most common and persistent 420 origin myths.

-420 is the Penal Code designation (or police radio code) for "smoking in progress":  Not even close.  Section 420 of the California Penal Code actually prohibits anyone from "preventing or obstructing entry upon or passage over public lands".  Most marijuana crimes are defined by sections 11357, et seq. of the Health & Safety Code.  According to my research, there aren't any states that use section 420 of their penal codes for anything remotely related to marijuana.

-4/20 is Hitler's Birthday: True, but completely unrelated to the date's popularity among hippies and stoners.

-4/20 is the anniversary of the Columbine shootings: Again, true.  And again, completely unrelated to the date's significance.  April 20 was a stoner holiday well before two latch-key kids went tragically mad and murdered their classmates.

According to Steven Hager, editor of High Times Magazine and consummate authority on marijuana culture, the code actually began with a small group of teenagers from San Rafael High School in the city of San Rafael, California.  According to Mr. Hager's legend, the friends referred to themselves as "The Waldos" because they were known to hang out at a particular wall on campus.  One day in the Fall of 1971, the Waldos devised a plan to scour the Point Reyes forest for an abandoned marijuana crop that they had heard about.  They would meet at 4:20 pm near a campus statue of Louis Pasteur to begin the hunt.  The time was chosen because all of the Waldos were athletes.  They would meet after practice, but early enough to ensure ample daylight for the search.  The plan even had a secret code name: "4:20 Louis".  Somehow, this code was eventually shortened to simply "4:20" or "420".  The Waldos never found the crop, but they did contribute to marijuana culture in way that none of them could have imagined.

One of the remaining Waldos, "Steve", explained the early use of their code to the Huffington Post: "I could say to one of my friends, I'd go, 420, and it was telepathic. He would know if I was saying, 'Hey, do you wanna go smoke some?' Or, 'Do you have any?' Or, 'Are you stoned right now?' It was kind of telepathic just from the way you said it.  Our teachers didn't know what we were talking about. Our parents didn't know what we were talking about."

In the early '70s, the Grateful Dead were spending more of their time in the Marin hills and away from the Haight neighborhood of San Francisco.  By chance, several of the Waldos developed close personal and business relationships with the band.  The high school friends hung out backstage and attended rehearsals with Jerry, Phil, Pigpen, Mickey and Bob.  Once the code caught on among deadheads, it quickly spread around the world.  

By the early '90s, High Times used the number regularly in their publications.  It soon gained worldwide recognition within the festival scene and around college campuses.  Some time in the mid '90s, park rangers noticed that unusually large and exuberant groups of campers were filling campgrounds during the weekend of April 20.  Rangers wrongly assumed that the crowds were somehow related to early Earth Day celebrations.

Today, the number is as recognizable as the Coca Cola logo.  It is no longer an effective code word for high school students.  Cops have figured it out.  Even your parents know what it means.  Maybe it's "high" time for some new lingo.  Any suggestions?

Please be safe this weekend.  Before you celebrate, designate.  Most importantly, though, hold onto my number.  (714) 449-3335.  Our office has an excellent record in defending against all types of drug charges.  If you or a loved one is accused of a crime involving drugs, you need a lawyer with expertise in drug defense.  I understand the issues that typically arise in drug cases and how to use those issues to your advantage.  We offer free consultations and affordable payment plans.  

Thanks for reading.

Santa Ana Marijuana Lawyer

Quick Overview of Miranda Rights

I decided to write the following post in response to a question that I hear almost day. It usually goes something like this: "I was arrested for DUI, but the cops never read me my rights. They have to dismiss the case, right?". I wish. My job would be so much easier if Miranda rights were as inviolable as everyone imagines (or as they're portrayed on cop shows).

Miranda rights, as we've all seen on movies, are intended to warn suspects in criminal cases that they have a right not to incriminate themselves when they are subjected to police interrogation. The right not to incriminate yourself includes the right to have an attorney present during questioning. That being said, Miranda rights apply ONLY in a very narrow set of circumstances: if you are in custody and being interrogated by police, you confess and the prosecutor wants to introduce your confession as evidence against you at trial, the DA must show that the confession was not tortured out of you. The way they do this is by showing that you had been advised of your Miranda rights, that you understood that you had a right NOT to confess, and that you knowingly, intelligently and voluntarily waived those rights.

When a suspect is in custody and he unequivocally states that he does not want to speak to the police, the interrogation must immediately stop (smart). After a short period of time, the police may ask the suspect whether or not he has changed his mind. 

If, instead of simply saying he doesn't want to talk, the suspect clearly demands to speak with an attorney (even smarter), the interrogation must immediately stop and the police MAY NOT attempt to re-interview the suspect without an attorney present.

Now that we all know when Miranda rights apply, let's talk about some common situations where they DON'T apply. Since they only come into the picture if you're IN CUSTODY, they do not apply if you're voluntarily answering questions at the police department and you're technically free to leave. This can be tricky because most people don't feel free to abruptly terminate an interview with the cops by walking out of the room. If you're not sure whether or not you're free to leave, try leaving.

Miranda rights also don't apply to "spontaneous statements". Spontaneous statements are things that you just blurt out when you're NOT being interrogated. If you start talking voluntarily or you shout out a confession while you're handcuffed in the back of a cop car, that statement will be read to the jury.  When in doubt, think of Dr. Evil and zip it.

The remedy for a violation of your Miranda rights is exclusion of the confession from evidence. Contrary to what most people want to believe, a violation of your Miranda rights does not automatically mean that the case against you must be dismissed. In a vast majority of criminal cases, the cops never bother to read Miranda rights because they don't need your confession to convict you. If you're caught driving while under the influence of alcohol, you're not going to be interrogated under a single light bulb in an otherwise-darkened room while investigators do the good cop / bad cop routine, like the scene in Menace 2 Society. No need for Miranda warnings in most DUI cases.

Long story short: don't ever say anything to the police that you wouldn't want printed in the New York Times or repeated to a jury. If you're arrested, don't try to explain yourself by telling the cops your side of the story. I guarantee that there's nothing you can say to get yourself into any less trouble than you're already in. The only thing you should ever tell the police is "I'm not answering any questions without John Bussman here", and leave it at that.

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

Thanks for reading.

Orange County Criminal Defense Lawyer

Welcome to John Bussman's SoCal Law Blog!

Welcome to the newest law blog serving all of Southern California.

My name is John Bussman and I'm a licensed attorney focusing primarily on criminal defense.  I work with the Law Offices of Rizio & Nelson.  We have offices conveniently located in the Counties of Orange, Los Angeles, Riverside and San Bernardino.

The attorneys at Rizio & Nelson have extensive experience defending against all types of criminal charges, including (but not limited to) DUI / Drunk Driving (including DMV hearings), drug charges (possession, cultivation / manufacturing, sales, medical marijuana, trafficking / transportation, etc.), violent crimes (assault, battery, murder), domestic violence and sex crimes.  We offer convenient payment plans with affordable monthly payments for any budget.  If you or a loved one is accused of a crime, call me any time at (888) 292-8888 or email me at jbussman@rizioandnelson.com for a free consultation. 

This blog is devoted to matters of criminal justice and the legal system here in Southern California.  I'll be regularly updating the site with news, analysis, advice, pearls of wisdom and anything else relevant to local justice.  Check back frequently for the latest updates and feel free to submit any questions to the email address above.  I'll do my best to answer those in a timely manner.