Specific crimes

DRUG CASES-SALES AND POSSESSION

Like all States and the federal government, California makes it illegal to use, possess, sell and transport drugs classified as controlled substances.

Whether it be for fun or profit, it is illegal under California law to use, possess, possess with the intent to sell, transport, or even give away marijuana, methamphetamine, cocaine, heroin, various kinds of hallucinogenic and various “club” drugs such as LSD and ecstasy among others.  How serious a particular drug case is depends upon the amount possessed, the type of drug possessed, and the reason for the possession.  If you simply possessed a small of drugs for personal use, you will most likely be treated lightly.  If, on the other hand, you were involved in a group who manufactured or distributed pounds of a dangerous drug like methamphetamine or cocaine, you could be treated very harshly.  The least serious offenses are for being under the influence and for possession of small quantities of drugs. For simple possession crimes, first time offenders generally pay a fine, perform public work service, attend Narcotics Anonymous (NA) meetings, and are placed informal probation for a period of three years. For ‘under the influence’ crimes, first time offenders face a mandatory minimum of ninety days in jail, work furlough, or possibly residential drug rehabilitation as well as fines, public work service, and NA (Narcotics Anonymous) meetings.

However, first time offenders for both possession and ‘under the influence’ crimes can participate in a drug diversion program in which the offender pleads guilty to possession or ‘under the influence’ of drugs and participates in a three month drug education program. If the offender successfully completes the diversion classes and does not violate any other laws in an eighteen month period following the initial guilty plea, he or she will be entitled to have the charges dismissed and any arrest record erased.

Under a new law called Proposition 36, even if you are on probation or parole for a non-violent felony offense, you may still qualify for probation in your present case if your present case involves a simple possession or transportation crime. Proposition 36 is an attempt to recognize drug offenders as needing help rather than punishment. It is a complicated law, but if you can fit within it you will have the chance to get help for your problem rather than getting time in custody.  For further information about Proposition 36 and drug court see the Superior Court’s website.  (http://www.sandiego.courts.ca.gov/superior/courts/drug.html)

First-time offenders facing prosecution for possession for sale, and transportation of controlled substance crimes are facing more serious consequences than first time offenders for simple possession and ‘under the influence’ crimes.  Possession of large quantities of marijuana, methamphetamine, cocaine, and other illegal drugs are almost always charged with intent to sell allegations.  Unfortunately, these felony crimes cannot be reduced to a misdemeanor.  Further, first time offenders are ineligible for drug diversion and will very likely serve a substantial sentence in county jail, county work furlough program, or in more severe cases, state prison.

Repeat offenders are looking at lengthy state prison sentences without skillful legal representation.  Prosecutions for transportation of a large quantity of illegal drugs, or for direct sales of drugs, are just as serious as prosecutions for possession for intent to sell crimes.  Even first-time offenders of these crimes are likely to receive state prison sentences for large quantity drug crimes without skillful legal representation.  A skilled lawyer should be able to review your case and the discovery and determine rather quickly how you should approach handling the case.  In some cases, the prosecution’s case may be flawed by weak/circumstantial evidence or even a potential illegal search issue.  When this happens, a strong attorney will be able to use this potential flaw as leverage in getting you a much better deal that involves a much lower sentence.

FINANCIAL CRIMES - FRAUD – EMBEZZELMENT – FORGERY

Financial crimes, also known as “white-collar crimes” involve financial gain perpetrated through some type of non-violent fraudulent activity.  These crimes may include not only the traditional white collar offenses of fraud and embezzlement, but also bribery, forgery, filing of false insurance or government claims, securities violations, telemarketing offenses, trademark or trade secret offenses, price-fixing, illegal employment practices, health violations, credit card or credit access, escrow and construction violations, and others. Sometimes these are charged in federal court and sometimes they are charged in state court.  Usually that determination depends upon the severity of the offense, the amount or value of money or property lost, and the whether interstate commerce was used to perpetrate the offenses.  Included in this list of white-collar crimes are crimes involving computers, as well as violations of environmental law.

These cases can range from very simple to extremely complex.  The range of behavior involved is great and how the case is handled depends upon a number of factors including, but not limited to, the complexity of the case, the age, and vulnerability of the victim(s), the amount of transactions involved, the amount of evidence involved to prove the event, the amount of money or property loss, the reason for the taking, the ability to pay restitution, and others issues.

Sometimes just to analyze what your chances are and what case goals you should have involves an incredible amount of time and investigation.  If the conduct alleged, however, involves a lengthy history with mind with many transactions over a long period of time, your lawyer is going to have to put in substantial time reviewing all of the documents and events to give you proper diagnosis of the likelihood of a conviction. You need to know this, as well as the costs involved, so you can make good decisions about your life.

Like many things in the system, the punishment for white-collar offenses has changed. You are more likely now to get far more severe sentences than in years past.  In the “old days” white-collar offenses were viewed much less severely than violent crimes and it was easier to get a lighter sentence.  Now your attorney needs to work very hard to prevent jail or prison.  And although it is still possible to maneuver under the tighter sentencing, it is far more difficult to avoid jail or prison.
 
The factors that will help lessen your sentence are similar to those in other crimes. If you are a first time offender, or if you acted out of desperation because of a major life stressor, you are more likely to receive mercy.  If you plotted to defraud someone over a long period of time, you are more likely to receive a substantial sentence.  If you have a treatable psychological disorder, such as gambling addiction, you will have a better chance at leniency.

Believe it or not, if you can pay back the money at or near sentencing you have a much greater chance of avoiding jail or prison.  Restitution to the victims is a major factor in these types of cases.  While the courts do not like to think that money will buy you out of your predicament, they feel comfortable if they can get the victim repaid and made whole.  Coming up with substantial payment can also lessen the victim’s opposition to you getting a lighter sentence.

If you are found guilty or end up plea-bargaining, your attorney will want to investigate your life and your life circumstance at the time of the commission of the crime. You may want to consider a psychological evaluation to demonstrate all those life stressors that made you act contrary to your normal behavior.

If you must go to trial, know that your trial could be a long and expensive affair. These cases usually involve lots of documents and lots of foundational witnesses to those documents, which can take up many days in court. You will probably also need financial or industry experts at trial, which are expensive and time consuming.

INSURANCE FRAUD AND WORKERS COMP FRAUD

In the last several years, the insurance industry has made a mission out of cracking down on insurance fraud, especially in the vehicle accident and medical treatment fields. They have actually given grants to government agencies to augment their budgets to prosecute these cases.  Prior to these grants, insurance fraud was a low priority in the local prosecutorial agencies throughout the state.  Today, prosecutors in these special fraud units can be the most aggressive in a given office.  

The state insurance fraud investigators actively investigate and prosecute all types of insurance fraud. Their leads come through insurance companies who feel certain claims are false or exaggerated.  This increased scrutiny developed as a result of  insurance company attacks upon lawyers and doctors/chiropractors who processed volume accident cases.  The industry, along with state investigators, targeted lawyers, paralegals, chiropractors, and others on the theory that these claims were being fraudulently built up by the lawyers and health professionals.

These cases can be very simple and minor or they can be very complex and large in scope. They can also involve virtually every type of insurance claim imaginable. Because they involve documents, the evidence can be very strong against the accused. But because the “intent” is an element, they can be tricky and difficult for the prosecution to prove. You will need an attorney who is experienced in document cases as well as an attorney who can effectively and credibly negotiate with the fraud units of the particular prosecutorial agency involved.  These cases rarely go to trial, but if they do, they can be very expensive because they are far longer than the typical jury trial.

WORKERS COMPENSATION FRAUD

Another recent insurance industry phenomenon is the worker compensation insurance carriers trying to crack down on what they perceive as workers compensation fraud. Sometimes the insurance companies give grant funds to prosecutorial agencies in order to increase the investigation of these cases.  In any case, the insurance industry is bringing a lot of pressure on local prosecutors to charge and pursue worker compensation fraud.

Many of these cases involve charges of exaggerating symptoms and malingering. Frequently you see videotapes by an insurance investigator attempting to demonstrate that the worker is engaging in some activity that would be impossible if they were hurt as severely as their claim suggests.  This is a convenient way for an insurance company to avoid paying an expensive claim.  The insurance company simply alleges fraud, refuses to pay, and causes the worker to have to hire expensive counsel to prove that they are not exaggerating or malingering.

One of the weaknesses in this type of prosecution is the prosecutor’s lack of experience in personal injury and medical evidence.  Prosecutors do not regularly deal with medical issues such as spinal injuries, carpal tunnel syndrome, neurological deficits and other medical issues typically found in workers’ compensation and personal injury claims.  As a result, it becomes easier for insurance claims adjusters to convince a prosecutor that the injury is faked or exaggerated.  When this occurs, it is often because prosecutors do not realize that a lot of these injuries are difficult to conclusively diagnose and there is much debate in the field about injury diagnosis. Typically, the insurance company parades the opinion of a “hired gun” expert with great credentials to opine that the injuries are exaggerated. You need to counter with an aggressive attack on that medical opinion.

Because of the complexity of these cases and because of the various issues and entities involved, even if guilty, the potential for a good plea-bargain is very high.  On the other hand, if you are innocent and must proceed to trial, these cases can be lengthy and costly because they involve many documents, medical reports, and sophisticated medical expert testimony and cross-examination.

DOMESTIC VIOLENCE

If you are charged with domestic violence as a felony, it probably means that your case involves significant injuries, a serious battle, or a history of fighting and violence towards your spouse or significant other.  The system is fairly decent about separating those cases that should start out as felonies and those that should start out as misdemeanors.

Domestic violence felonies can result in significant time in custody.  This is especially true if there is a history of violence or if there was a significant beating.  If the facts are bad, your attorney needs to assist you to get the right help and treatment necessary to get lenience from the court.  If you show great remorse and a willingness to get treatment, you stand a much better chance for mercy.

In many of these cases the facts are ugly, and you will need a good lawyer to fashion the right strategy to obtain a good plea bargain. If you are innocent, you will need a good violent crime lawyer to prove the same type of issues that are found in other violent crime cases.

Sometimes even less serious domestic violence cases start out as felonies. Unfortunately for the accused, domestic violence or “DV” cases are the focus of much attention. Law enforcement, in a concerted effort to break the cycle of violence among families, is taking a hard line approach to the prosecution of these cases. Under Penal Code Section 273.5 even the slightest injury can be a felony and you can forget the possibility of simply getting a second chance.  If the police are called and your spouse or significant other says you touched her roughly, you will be jailed and prosecuted.  There is no more diversion or pre-charging probation to keep your record clean.  Sometimes a good lawyer with good facts can prevent prosecution, but the order of the day is to prosecute.

This means that many good people end up with some sort of record after a family dispute. Unfortunately, the problems with having a criminal record hurt the careers and lives of these good people.  One of the most important jobs of your defense lawyer is to assess and protect your career.  If you have a job, such as police, security guard, or military, that requires you to carry a weapon, a conviction can destroy your career.  Imagine if you have spent twenty years in the military to be thrown out because a low-grade domestic violence conviction now bars you from ever possessing a firearm.

Other consequences on the less serious cases involve anger management counseling, public work service, and a fifty-two week domestic violence program.  Due to the current state of domestic violence law, there really is no such thing as a “minor offense”.  No matter how minor, these types of cases can be time consuming and involve numerous court appearances, aggressive and prolonged negotiations,  and emotional trials with severe and permanent consequences.  

CHILD MOLESTATION

Child molestation cases are among the most difficult cases for both the accused and the attorneys handling them. Children are special to humans, and that is reflected in the way the system treats these types of cases. Law enforcement is more biased and less objective, prosecutors can be almost rabid in their pursuit, judges can be unsympathetic to the cause of the defendant, and due to the harsh view other inmates traditionally have on this type of charge, persons charged with these offenses must be carefully protected in the jails.  

Child molestation cases demand a highly skilled, experienced attorney to handle them. How the case is handled from the very beginning, even before formal charges are filed, can significantly alter the outcome and shave years off the sentence of the defendant.  

RAPE

Rape charges can involve complex and highly sensitive interpersonal issues between defendant and alleged victim.  As a result, defendants facing these charges must have highly experienced and effective counsel.  Typically the charge involves two types of cases.  First, they can involve situations wherein the alleged victim knows the defendant (perhaps a date or a lover).  It is in these cases where the issue of false or exaggerated accusations comes into play.  And second, they can involve situations wherein the crimes were committed by a stranger, and as a result, the issue of eyewitness identification is usually the key.

In the acquaintance type case, an effective attorney will focus on the motive of the accuser.  Whether the motive is a rejected lover or a situation involving a debate on whether consent occurred or alcohol induced, false accusations abound.  Because these cases normally involve a female victim, sympathetic prosecutors can be prone to letting that sympathy cloud their assessment of the facts.   

To successfully defend these cases you must shed light on the motivation for the accusation.  This is done through careful interview, investigation, and analysis.  Once you have found that motivation you must conduct further investigation of the family, friends, and other people in the alleged victim’s circle of acquaintances.  Many of the alleged victims have emotional disorders that need exploration. What might seem like a wild young lady to a young man may actually be a serious personality disorder with features of inability to handle rejection and uncontrollable rage.  You will need a skilled attorney to develop these theories and utilize them effectively during your case.

Medical evidence is also a problem in rape charges.  At the onset of almost all rape investigations, the alleged victim is examined by a S.A.R.T. (Sexual Assault Response Team) nurse.  These “nurses” will almost always find something in the vaginal area they will claim is evidence of non-consensual sex.  However, they are frequently wrong in their opinions and can be effectively cross-examined if your attorney is well versed in the medical and legal issues involved in this particular problem.  Your attorney should know the best medical experts that will carefully review your case and prepare your attorney for a legal attack on the S.A.R.T. nurse’s opinion.

Rape cases can often involve situations where a young man honestly misunderstood a situation or was trying to break up with the alleged victim only to be faced with vengeful false accusations.    And in these cases, the only thing separating the defendant from a lengthy prison sentence is a skilled trial attorney and a long emotional trial.  Where the case involves the issue of eyewitness, there is usually no issue about whether the crime actually occurred.  Instead, the focus is on whether the defendant is the person responsible.  In these cases, identification becomes paramount and representation by an attorney with extensive experience in all the factors that go into eyewitness identification is essential. Those factors include: the impact of the duration of view, lighting, emotion, impediments, and other factors.

In most cases involving this issue, extensive knowledge of the law is essential in order to convince to the judge to give appropriate jury instructions.  Further, your attorney must be able to recognize when intricate investigation, photographs, videotaping, or in-court experiments are necessary.  And on rare occasions, even where it might be beneficial to take the jury to the scene at the time of the incident so that they can judge for themselves as to the accuracy of the witnesses ability to perceive what has been described.

MURDER AND MANSLAUGHTER

Homicide cases are among the most interesting and difficult cases from the lawyer’s perspective. They involve high stakes and require the most experienced and talented lawyer you can retain. Because the case is missing the main witness, and because homicides usually do not happen in public, they require a reconstruction of what happened from clues found on the body, at the scene, and what witnesses heard or saw.

When someone is charged with a homicide, it means they could be convicted of something ranging between Involuntary Manslaughter (reckless act resulting in death) to First Degree Premeditated Murder.  Murder is usually the intentional killing of another human being with malice, which means without legal justification.  Manslaughter is either the intentional killing of another in the heat of passion or the reckless unintentional killing of a person.  At the onset of a case, the accused is generally charged in a way that covers the entire range of homicide crimes.  What happened in any particular case is usually a matter of intense analysis and extensive investigation.

The attorney needs to be experienced in a lot of areas so they can spot potential evidence to help their clients. Some of these areas involve forensic evidence such as autopsy, DNA, blood spatter, fingerprints, toxicology, firearm/ballistics, and crime reconstruction. While the attorneys rely on experts, an experienced homicide attorney knows what trails to follow and develop.

The attorney needs to also be experienced in psychology and mental state defenses.  Many of these cases involve self-defense or the heat of passion, which can reduce the case to manslaughter or even to a not guilty verdict.  Some of these cases involve defeating premeditation or showing mentally diminished capability to reduce the degree of murder to second degree or reduce it further to manslaughter.  This requires an in-depth understanding of human behavior and the human mind.  Psychologists or psychiatrists are often needed and work closely with the lawyer to analyze the conduct between the parties to mitigate the mental state of the accused.

If some other person was the killer, the investigation needs to focus on proving that fact either with direct or circumstantial.  In this situation, you might not be able to show exactly who did it, but you may be able to show that it is likely that another person committed the killing. This requires a team effort between the accused, the lawyer, and a private investigator. Leads must be followed that would show a possible motive and the opportunity and means for another person to have killed the deceased.

THREE STRIKES AND STRIKE PRIORS

 In California, new sentencing laws have made punishment more severe for persons charged with certain crimes or for persons with a past history of criminal acts. Nowhere is this more evident that in the “Three Strikes” law. Basically if you have two felonies of a violent nature, any third felony conviction will result in a sentence of twenty-five years to life. If you have one violent felony in your past, a new felony will result in denial of probation and doubling of the prison sentence of the current felony.

There are a lot of persons charged in the system who find themselves in the “strike” predicament. You see a lot of persons who were in significant trouble when they were younger, and then later on in life picked up a felony which resulted in strike application. Or you see a lot of young people who went to prison for something serious and, before they are able to get their act together, end up with a new charge that is a strike situation.

Fortunately, strikes can be stricken by the court, which means that much plea and sentence bargaining can be done if you find yourself in this position. Because the judges have the power to strike one or more strikes, the district attorneys bargain more actively. It is important to establish a good relationship of trust and a team mentality with your lawyer as quickly as possible. You may have to plea at an early stage to take advantage of a judge who will strike a strike. You want to be fully informed of the facts and your position so you do not make the mistake of passing up a deal that might not surface again.

Even if you are facing three strikes, do not panic or give up. There are many points in the system where you can avoid the maximum punishment. A good lawyer knows what elements are involved in convincing the court to strike a strike, and they will prepare accordingly. Sometimes you have to subpoena or otherwise acquire prison records, parole records, old probation reports, and other important documents to show that you were a different person then than you are now. Sometimes your lawyer will reconstruct your history to show how good you were doing for a long time until you stumbled and fell into a three strikes situation.

Your lawyer may need to have a psychological evaluation done to show the court the important information about your past and hwy you have had problems or why you are having problems now. It is really important to not give up. It cannot be stressed enough to have a good lawyer on these cases. Someone who is talented on sentencing and human life will be able to use that talent to show the courts or the district attorney’s office why you do not deserve extreme punishment. A good lawyer will also know the technical limits of the strike law. Sometimes what appears to be a strike is not judged that way in the California courts.

Unfortunately, sometimes you have to take these cases to trial.  If they will not bargain, and a judge will not agree to strike the strike the accused may have to fight the current charge aggressively to avoid twenty-five years to life. This means the investigation and expert testimony and much lawyer preparation needed. Many times, if the jury knows the case is a three strikes, they will be more vigilant in applying reasonable doubt. Regardless, you cannot fight too hard if you are facing twenty-five years to life in the state penitentiary.

    The voters of the State of California will vote on Proposition 66 during the upcoming November 2004 General Election.  Should this proposition gain voter approval, it would substantially alter the Three Strikes Law.  These changes would impact both defendants charged in new cases after the election as well as defendants currently serving sentences that would not have resulted under the language of the proposition.  Needless to say, the changes included this proposition are highly technical and the language in the proposed law fails to address a number of legal issues that will likely result in litigation that could take years to fully resolve.   If you are someone who may be impacted by a change in the current Three Strikes Law, you should speak to an experienced attorney as soon as possible.  If you would like to see the specific language of the proposition, please go to the following link:

http://www.ss.ca.gov/elections/elections_viguide_pg04.htm

DRIVING UNDER THE INFLUENCE (MISDEMEANOR)

If you have been arrested for Driving Under the Influence of Alcohol or Drugs, there are many variables to consider. It is very important that you receive accurate information from a qualified attorney. A DUI defense requires immediate attention. Only an experienced attorney can help you understand and exercise the constitutional rights that are involved with every DUI offense.

DUI charges can be very traumatic and financially burdensome for first-time offenders and multiple offenders. Each case is unique and requires special attention to detail before any resolution can take place. Because there are constitutional issues that need to be addressed with every case, it is worth your while to have legal representation at all stages involving DUI action. For example, there is always a question of whether or not the officer had a legitimate reason for the initial stop, detention, search, and/or arrest.  An experienced attorney should help you understand these issues and whether or not you should plea or take the case to trial.

Moreover, if you have a California Driver’s License, you should have representation for the administrative hearing at the Department of Motor Vehicles (DMV).  These hearings must be set within ten-days of your arrest and involve legal issues on whether or not the DMV should suspend your driver’s license.

Thorough investigation and aggressive representation are key elements for a successful defense in all DUI cases.  Each case deserves a proper dedication of time and effort in order to determine whether or not the charges should be dismissed, reduced, or at the very least, plead to after adequate negotiations. The results of a DUI action depend on the facts of each individual case and your strategy in reaching a conclusion. Only an experienced and qualified attorney can assist you in each of the critical stages involved in a DUI case and give you the information necessary for you to make an informed decision about how to proceed with your case.

If you have been arrested for DUI, you must act promptly. And, if you have questions regarding issues such as justification for the arrest, refusal of field sobriety tests, the difference between the various test options, what happens if I am currently on probation, or will my license be suspended, you should call an experienced attorney immediately.  

MISCELLANEOUS MISDEMEANOR VIOLATIONS

In most other cases involving misdemeanor violations, the process for the resolving the case is the same.  First, you are given a citation or notice to appear on a particular date.  On the date of your appearance, you will appear in court and be counseled by the deputy public defender that is on duty in the courtroom on that date.  They will meet with you briefly to discuss the offer made by the prosecution, your legal rights, potential defenses, and whether you will plead that day or simply enter a not guilty plea and proceed towards a jury or court trial.  

These violations, although minor compared to most others, can have serious consequences for you.  They can carry significant fines, impact your California Driver’s License, or leave you saddled with unsightly blemishes on your criminal record that can affect your ability to get or maintain certain employment positions.  

When possible, you should retain an attorney to resolve these matters.  If you do so, you can avoid going to court and wasting a whole day just sitting the courtroom waiting for an opportunity to speak briefly with an attorney who simply may not have the time to fully explore the issues raised by your case that day.  An experienced attorney with a keen knowledge of misdemeanor criminal procedure can make that first appearance by facsimile, receive all of your police reports by facsimile, review your case thoroughly, negotiate a positive disposition, and appear on your behalf in court.