California Criminal Defense Blog

The trial of Dr. Conrad Murray for the death of Michael Jackson created a firestorm of speculation and debate among the general public.

But among the California law enforcement community, the sentencing phase of the trial generated its own controversies. The reason is Realignment AB 109 in California, a sweeping new criminal justice law that amends over 500 felony statutes to provide for jail instead of state prison.

Realignment AB 109 also implements a new kind of felony sentence called “mandatory supervision” that resembles felony probation. Further, the law makes changes to the way certain offenders are supervised when they are released from state prison.

One of the many statutes amended by Realignment AB 109 in California is the involuntary manslaughter statute under which Dr. Murray was convicted. Because Dr. Murray was sentenced after the law took effect on October 1, 2011, he could receive at most four years in county jail (which he did, in fact, receive).

If he had been sentenced prior to Realignment AB 109 in California, Dr. Murray could have received up to four years in California state prison instead of county jail.

Realignment AB 109 in California may have generated controversy and second thoughts in the context of the Michael Jackson case. But advocates of the law are optimistic it will lead to the kind of community-based, creative sentencing that can foster genuine rehabilitation and reduced recidivism in a way that a “lock ‘em up in state prison and throw away the key” cannot.

Perhaps the most dreaded consequence of a felony charge in California is the prospect of spending time in California state prison.

But the good news is that for many kinds of felonies there are options besides state prison. One of those options is felony probation in California, which means the defendant gets to serve his or her sentence outside of custody.

Generally speaking, people convicted of felonies may be eligible for felony probation in California if they have no history of committing a violent, serious or sex crime, and if the current offense is not of that nature. The judge makes the final decision as to whether to grant felony probation instead of prison, but the judge gets input on the issue from the department of probation.

Some factors judges look at in deciding whether to place a defendant on felony probation in California include the seriousness of the crime, the amount of loss to the victim, the defendant’s criminal record (including as a juvenile) and the degree of sophistication with which the crime was carried out.

Felony probation in California involves conditions such as meeting with your probation officer, paying restitution to the victim, participating in counseling, doing community service and not violating any laws. You might also have to submit to random drug testing as well as warrantless peace officer searches of your person or property.

Our California Criminal Defense Attorneys have secured felony probation in California for countless clients where they may otherwise have had to go to state prison.

With the sour economy, instances of fraud are on the rise. California criminal fraud laws make it a crime to steal or misappropriate things of value from people by way of deception.

Two of the most common forms of fraud involve credit card or checks.

Credit card fraud is when a person uses credit cards, debit cards or access cards as part of the scheme. Common examples include buying things with another person’s credit card (and without their permission), opening up a charge account using another person’s identity or credit, or using your own charge or debit card to purchase goods knowing that it has expired or been revoked.

Stated in Penal Code 476, check fraud is using checks for the same purposes. Examples include forging the payor’s signature and making the check out to you, or making out fake checks and using them to purchase goods or services.

Common to these and all forms of criminal fraud is what the law calls “intent to defraud.” This means knowingly using deception to obtain things to which you are not legally entitled. If you were duped unwittingly by someone else’s fraud scheme, or you at least had a good faith belief that your actions were legitimate, chances are you did not commit a crime and your case is defensible.

But what happens when that job opportunity you’ve been waiting for comes through and it’s time to fill out the application. Are they going to ask you to disclose a past criminal conviction on a job application?

The law regarding criminal convictions is complex. But generally speaking California law protects you from having to disclose certain criminal convictions on a job application.

You don’t have to tell private employers about arrests that did not lead to convictions, expunged convictions and drug convictions for which you successfully completed a deferred entry of judgment diversion program.

Some of the exceptions to this rule relate to applications to become peace officers as well as certain kinds of “sensitive” job positions that involve access to medical patients and narcotics.

California’s Public Safety Realignment Act (AB 109) took effect two weeks ago, on October 1, 2011. Passed in the midst of a tightening economy and litigation over overcrowded prisons, the law makes major changes to criminal sentencing and post-release supervision practices.

The law “realigns” from state to counties a significant level of criminal justice responsibility. It mandates that people convicted of non-violent, non-serious, non-sex offense felony crimes (such as certain California drug crimes) be punished with county jail instead of prison.

It also provides for low-risk parolees to be supervised at the county level instead of by the state California Department of Corrections and Rehabilitation.

According to a September 2011 Los Angeles County Implementation Plan, in year one Los Angeles law enforcement officials will be charged with handling over 15,000 additional offenders who would otherwise have been paroled at the state level or initially sentenced to prison.

It is assumed that 44% of prisoners released under the new community supervision scheme will have been sentenced for a California drug crime.

Skeptics say the law will lead to public safety problems or, in conservative communities, to nothing more progressive than overcrowded jails. But others hope that we will seize the opportunity and spearhead new evidence-based practices focusing on rehabilitation.

The optimists say that a renewed focus on rehabilitation, including substance abuse counseling and sentencing alternatives for those convicted of California drug crimes, may well lead to reduced recidivism and stronger, safer, more sustainable communities.

With the surge in activism around California and the country, you might wonder what, if any, are the long-term consequences of a protest-related arrest in California.

One potential consequence is that the arrest will pop-up down the line on a criminal background check in California. Unless you are never charged, or you get off with a dismissal or infraction (which is punished by a fine and not considered a “crime” in California), you can anticipate a protest-related arrest to follow you in terms of your criminal record for at least some purposes into the future.

When it comes to your official California Department of Justice "rap sheet," an arrest for something like resisting arrest or misdemeanor trespass remains forever, even if ultimately dismissed or expunged. But your rap sheet is highly confidential, so this may have little practical impact on future job or other prospects.

Things are more flexible when it comes to criminal background checks generated by private record search companies. When those companies run criminal background checks in California for a private employer, they are not permitted to include arrests that are not followed by convictions or convictions that are more than seven years old.

Further, if you are convicted and comply with all the conditions of your probation, you will be able to have the conviction expunged (or "dismissed in the interest of justice"), in which case it should not show up on your criminal record and you will not have to disclose it to a future employer.

State licensing agencies, however, will still be able to inquire about your expunged convictions.

Committed individuals who put themselves on the line to advance a cause may well consider any resulting and potentially indelible arrest a badge of honor. But even the most inspired activists would agree that it’s wise to take note of what the law is today…even as they envision what it might be tomorrow.

With nearly 12% of California’s labor market unemployed, you need every advantage to put food on the table.

If you have a criminal conviction in your past, it’s the perfect time to clean up your rap sheet in California.

Luckily, when it comes to cleaning up your rap sheet in California, the law appears to provide more forgiveness than the current labor market. Among the methods potentially available to clean up your rap sheet in California are expungements, certificates of rehabilitation and pardons.

It’s true that your official government rap sheet in California is a confidential document, only available to a select group of people. But much of the information contained in your rap sheet is available to the public, and is reflected on the “criminal records” compiled by private criminal record search companies.

Besides, you know what’s in your past. If you’ve gone through the hard work of turning your life around…why not let the record reflect that important effort?

It is estimated that between ten to thirty percent of all military veterans suffer from post-traumatic stress disorder (PTSD), an anxiety disorder characterized by a host of symptoms ranging from flashbacks to anxiety to feelings of hopelessness and guilt.

If not treated, PTSD can lead to a downward spiral involving mental anguish, substance abuse and addiction, broken relationships and alienation, and even criminal activity.

As members of the therapeutic community develop ways to diagnose and treat PTSD in our veterans, members of the legal community are wrapping their heads around how the law can and should deal with the criminal ramifications of military-related post-traumatic stress disorder.

A client’s post-traumatic stress disorder might open the way for an affirmative defense based on insanity. A lawyer defending a veteran with PTSD in criminal court might also raise PTSD to secure an alternative sentence under California Penal Code Section 1170.9.

Penal Code §1170.9 allows judges to sentence military veterans to treatment instead of prison or jail in cases where those veterans committed their crimes as result of sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems stemming from service in the United States military.

A number of California counties, including Ventura and Los Angeles, also have special “veterans courts.” These collaborative courts help low-level offenders deal with underlying problems like PTSD, unemployment and substance abuse that lead to criminal conduct in the first place.

Orange County gets credit for instituting the fist veteran’s court in California. Buffalo, New York created the first such court in the nation.

We’re often asked how serious it is if someone gets charged with manufacturing narcotics in California?

The simple answer is that it is one of the most serious drug offenses. Health & Safety Code 11379.6 HS - the California law against manufacturing illegal narcotics - carries a prison sentence of up to five years. By comparison, selling or transporting drugs only carries up to five years. And merely possessing a controlled substance for personal use only carries up to 3 years.

Moreover, unlike simple possession, a person convicted of manufacturing under Health & Safety Code 11379.6 does not qualify for drug diversion programs such as Proposition 36 or deferred entry of judgment.

It’s not hard to understand why the law clamps down so harshly on manufacturers. The California legislature sees them as perhaps the most major player in the illegal drug trade. And unlike simple users who are merely feeding an addiction and often perceived as victims themselves, “cookers” and “processors” are viewed as profiteers who feed on the nation’s drug problem.

One other factor adds fuel to the fervor against illegal drug manufacturing. Only one of the major street drugs is predominately made and processed domestically: methamphetamine. And “meth” is widely regarded as perhaps the most virulent of the illegal street drugs.

As lawyers working within the California juvenile justice system, we don’t necessarily see what happens after a petition is sustained and a juvenile gets remanded to custody. But now we can get a glimpse of that part of the story through the photographs of Richard Ross, a Getty Museum Principal Photographer and former Guggenheim Fellow.

Ross has spent the past five years photographing over 1,000 juvenile detainees in lockups and camps across the country, including California. A sample of his images are published in the current issue of Harper’s Magazine and on the photographer’s website.

In the introduction to his collection (titled “Juvenile-In-Justice”), Ross writes that his images are “unbiased photographic and textual evidence of a system that houses more than 100,000 kids every day.” His medium, he writes, “is a conscience.”

Our medium as lawyers is legal process…but hopefully it’s also a process infused with conscience. Our California Criminal Defense Attorneys operating within the California juvenile justice system appreciate the opportunity to view and reflect upon photographs and other artistic works that bring a different sensibility and perspective to the work we do.

If you’re arrested for a felony crime in California, what’s likely to happen to you?

According to the California Department of Justice’s 2010 Crime Report, chances are you’ll be prosecuted, convicted and sentenced to California felony probation with jail time.

That means you’ll serve a stint of up to a year in county jail and then complete a term of up to five more years under the supervision of a criminal court judge and county probation officer.

Eighty-one percent of the nearly 300,000 felony arrests in California in 2010 proceeded to criminal court for disposition. Those cases resulted in 36,378 dismissals (12.2%), 603 acquittals (.02%) and 201,820 convictions (67.6%).

Fifty-eight percent of those arrested for a felony ultimately received probation with jail. The others received prison sentences, probation without jail or just jail.

California felony probation is different from misdemeanor probation. Felony probationers must meet with probation officers, comply with drug tests and submit to searches of their cars and homes. Violations can be sanctioned with up to 18 months in state prison.

The Crime Report contains information about other crime and criminal justice-related topics, as well, including breakdowns of crimes by county and offense type, and tallies of statewide law enforcement personnel, domestic violence calls and citizen complaints against peace officers.

Many people…especially in California where gang-related crimes are an everyday occurrence…witness criminal activity but do not report what they saw to the police. While some simply “don’t want to get involved”, many are truly afraid of retaliation. Some simply anticipate retaliation, while others receive direct threats from people involved in the crime. If you have the courage to testify about what you saw, know that the state can help you via the California Witness Protection Program.

Similar to the more well-known federal witness protection program, the California Witness Protection Program offers victims and witnesses of crimes services to (1) help keep them safe, housed and fed while they cooperate with law enforcement, (2) ensure that they receive any necessary medical/psychological counseling and (3) secure financial restitution to compensate for any financial losses due to the crime.

If you are the victim of witness of a crime…and would like to report what you know…contact your local prosecuting agency to find out how they can help protect you.