September 29, 2010

Don't Lose Your California Contractor's License Just Because You've Suffered a Conviction

Contractors beware! Not only can the Contractors State License Board (CSLB) discipline you for any fraud or theft offense you commit against a client, but it can also discipline you for receiving almost any misdemeanor or felony conviction…even if it is expunged.

This is because California contractors are subject to professional discipline for criminal convictions. And while not every conviction will subject a California contractor to professional discipline, any conviction that is “substantially related” to the contractor’s ability to perform his/her work in a safe and responsible manner will.

The problem is that California courts have broadly defined “substantially related.” They have held that offenses involving physical violence, fraud, theft, or dishonesty are all substantially related to contractors work…even when they do not involve a client or job-related matter.

So, what can you do if you are convicted of an offense while you hold a state contractor’s license? Immediately contact a skilled attorney who can help you demonstrate why the conviction isn’t substantially related to your work and why you should be able to continue practicing your profession.

September 28, 2010

The Effect of a California Domestic Violence Conviction

California’s laws against domestic violence are serious and comprehensive. But a conviction doesn’t just subject you to fines, community service and/or therapy, and potential incarceration. Because California defines domestic violence as a crime of moral turpitude (CIMT), a conviction actually exposes you to much more severe penalties.

A crime of moral turpitude (CIMT) is one that involves either (1) dishonesty or fraud, or (2) reprehensible, anti-social behavior that harms or corrupts other people. California courts have held that domestic violence falls into this second category.

As a result of being declared a crime of moral turpitude, a domestic violence conviction subjects you to

  • impeachment,
  • discipline by your employer (if you are a California state employee),
  • discipline by the state if you hold a California professional license, and/or
  • deportation (whether you are an illegal alien or even a lawful permanent resident).

And again, these penalties are all in addition to the criminal penalties that you necessarily face by being convicted of domestic violence. If you find yourself susceptible to this type of abusive behavior, it is in everyone’s best interest to seek help. Treatment can not only save a life, a marriage, or a relationship, but it can save you from the devastating consequences that are imposed in connection with crimes of moral turpitude.

September 28, 2010

Vehicular Manslaughter isn't Involuntary Manslaughter...At Least Not in California

You violate Penal Code 192(b) California’s involuntary manslaughter law when you commit either

  1. an unlawful act (not amounting to a felony), or

  2. a lawful act that involves a high risk of death or great bodily harm if you commit that act without due caution.

It would therefore seem logical that if you are driving…and, for example, speeding…and you unintentionally cause an accident that kills another person, you would be guilty of violating this law.

However, Penal Code 192(b) California’s involuntary manslaughter law specifically excludes any incidents that involve driving. Anytime someone is killed as the result of an automobile accident, the charge…if the act is one that is criminal under California law…is vehicular manslaughter, vehicular manslaughter while intoxicated, or DUI second-degree murder.

And while this is the case in California, it isn’t the case in many other states. In fact, the typically involuntary manslaughter charge in other states involves exactly this type of case…that is, a vehicular offense where someone is unintentionally killed.

If you are involved in an accident where someone is killed, make sure you immediately speak to a LOCAL criminal defense attorney so that you can prepare a defense that is specific to your state.

September 24, 2010

Is Confinement Punishment?

California law punishes those persons who intentionally commit crimes. This means that if, for example, a defendant accidentally breaks the law, is unconscious at the time he/she breaks the law, or was compelled to commit a crime because of severe mental illness, he/she will be excused from his/her criminal conduct.

This law, however, gets a little foggy when it comes to California’s insanity defense (otherwise known as the M’Naghten test). If you are declared not guilty by reason of insanity you will not be incarcerated. You will, however, be confined in a state mental hospital. And, depending on how you look at it, this type of involuntary confinement could be seen as a form of punishment.

This confinement could last as long as a jail or prison term…and could subject a patient to just as many restrictions and dangers as jail or prison. On the other hand, if treatment is truly the goal, there aren’t too many other viable choices. And when properly treated and attended to, patients will still fare better in a hospital than they will while incarcerated.

So what’s the answer? Strict enforcement to regulate the state’s mental institutions to ensure that the state is following through on its commitment to treat and rehabilitate rather than punish its offenders.

September 23, 2010

Criminal Convictions Can Have a Far-Reaching Impact

Obviously, no one wants to be convicted of a crime. Whether it’s a misdemeanor or a felony, a criminal conviction subjects you to possible incarceration, substantial fines, victim restitution, community service / labor and, of course, stigma.

But in addition to these obvious concerns, you face employment and housing discrimination, loss of livelihood, and familial and social devastation. And if you are a California employee or hold a California professional license, a conviction will almost certainly result in discipline.

Criminal convictions directly impact California state employees. If you are a state employee convicted of a felony, you will likely be disciplined, if not fired. The same goes for a misdemeanor offense that involves “moral turpitude”…that is, a crime that involves dishonesty or immoral behavior.

The good news is that as a state employee, you have procedural rights to ensure that a criminal conviction doesn’t directly impact your California state employment without a fight. There are a number of hearings that you may attend to try to prove why your conviction should not subject you to discipline. But before you attend these hearings or present your case, it is advisable that you consult with an experienced attorney to secure the most comprehensive defense possible.

September 22, 2010

The Penalties for Violating California's Murder Law

The penalties for violating Penal Code 187 PC California’s murder law vary quite a bit, depending on the exact circumstances of your case. They can range anywhere from fifteen years in the California state prison to death.

If you are convicted of first-degree murder, you face 25 years-to-life in prison. First-degree murder is any murder that (1) is premeditated, (2) involves torture, “lying in wait” or explosive devices, or (3) occurs during the commission of specifically enumerated violent felonies.
If you are convicted of first-degree murder with special circumstances…commonly referred to as capital murder…you face life in prison without the possibility of parole or execution. Capital murder is essentially aggravated first-degree murder. Examples of capital murder include murdering another person for money, murdering more than one victim, or murdering someone based on their sex, religion, race, etc.

Finally, if you are convicted of second-degree murder…that is, any murder that is not first-degree murder or reduced to manslaughter…you face fifteen years-to-life in prison. And if you were previously convicted of murder, specifically intended to kill a police officer, committed murder while engaged in a “drive by shooting”, or are guilty of second-degree murder under a variety of other circumstances, you could increase your sentence by an additional five or ten years or perhaps even face a life sentence without the possibility of parole.

If you or a loved one is charged with Penal Code 187 PC California’s murder law, immediately speak to a skilled California criminal defense attorney who can try to reduce the charge or mitigate the punishment.

September 20, 2010

It's Never Too Late to Make a Fresh Start

Let’s face it. Having a criminal conviction can affect your life in a variety of ways. Whether you’re being denied employment, housing, loans, a professional license, entrance into a higher education institution, or just want to put your past behind you, help is available.

A California Governor’s Pardon is the key to making a fresh start. A California Governor’s Pardon not only sends a strong message to the world that you are ready to make a fresh start, but more importantly, tells the world that you have been completely rehabilitated and are now a leading a useful, productive, law-abiding life.

If…following any California criminal conviction…you have remained free from criminal activity for at least ten years, you should seriously consider seeking this type of relief. It is free to apply for a pardon and…although it isn’t advisable…you can represent yourself throughout the entire process.

Stop letting your past stand in the way of your future. For more information about California Governor’s Pardons, don’t hesitate to contact us.

September 16, 2010

California Sex Offenders May No Longer Have to Register

If you are a California sex offender who is currently required to register with the state, you may be able to obtain relief from this lifetime duty.

A California certificate of rehabilitation allows certain sex offenders to discontinue their registration requirements. These primarily include those who have been convicted of misdemeanor sex offenses who have had those convictions expunged. Sex offenders who are ineligible to receive a California certificate of rehabilitation include those who have been convicted of

Penal Code 286(c) sodomy with a minor,
Penal Code 288 lewd acts with a minor (a.k.a. child molestation),
Penal Code 288a(c) oral copulation with a minor,
Penal Code 288.5 continuous sexual abuse of a child, or
Penal Code 289(j) forcible acts of sexual penetration with a child.


If you think you meet the above criteria and are eligible to receive a certificate of rehabilitation, contact a California criminal defense attorney today for more information.

September 13, 2010

NYPD Officer Suspended Without Pay for Refusing to Help Dying Girl

NYPD Officer Alfonso Mendez was suspended without pay when he allegedly stood by and did nothing but harass a mother who was trying to get her dying 11-year-old daughter to the hospital.

Briana Ojeda suffered a major asthma attack at a park less than a mile away from a hospital. While her mother was frantically trying to drive her daughter to the E.R., she accidentally turned the wrong way down a one-way street and hit another car. Mendez approached and as Briana’s mother pled for help, the officer denied knowing CPR (a life-saving technique that all departmental officers are trained in). Instead of helping, he issued the mother a ticket for the accident. By the time the mother got Briana to the emergency room, it was too late…she was dead.

The officer faces departmental action for failing to act and a possible civil lawsuit from the family. All states have some type of penalties for officers accused of misconduct. This is why is it critical to contact a local, skilled criminal defense attorney if you are a police officer accused of misconduct.

Police officers need criminal defense lawyers as well. And claims against police officers are on the rise…especially in large metropolitan cities such as Los Angeles, San Francisco, and Oakland. Officers face departmental action, criminal and civil penalties for alleged misconduct. If accused, don’t go at it alone. Be sure to contact an experienced attorney.

September 10, 2010

Ventura County Business Owners Plead Guilty to Workers' Compensation Fraud

Michael Nuciforo and James Nuciforo, owners of D&J Drywall Painting, Inc. of Newbury Park, California are scheduled for their sentencing hearing on September 22, 2010. Both men plead no contest to three felony counts of California workers’ compensation insurance fraud. Each faces up to nine years in the state prison and restitution is expected to exceed a half-million dollars.

In this case, the men are accused of workers’ compensation premium fraud. This means that the business owners were convicted of lying to their workers’ compensation insurers in order to lower their workers’ compensation premiums.

As a result, the Ventura County District Attorney’s Office “Workers’ Compensation Unit” froze $1.5 million of the Nuciforo’s assets, pursuant to California’s “freeze and seize” law which allows the government to preserve money in order to pay restitution and fines.

September 9, 2010

When Prosecutorial Conduct Goes Too Far

Prosecutorial misconduct…that is, any conduct that the prosecutor engages in that is misleading, dishonest, or illegal…should always cause concern. However, it is often overlooked or set aside. Many times, prosecutors who make inappropriate or unethical comments during a trial are given a slap on the wrist and that’s about it. Meanwhile, the defendant is left to suffer the consequences.

Fortunately, there is relief when that misconduct goes too far. If you or your California criminal defense attorney can show that the prosecutor’s misconduct was so prejudicial that the prejudice can’t be cured, you are entitled to a new trial. And oftentimes, instead of beginning a new trial, the judge will dismiss the case or the prosecutor will be willing to offer a reduced charge.

The key is to highlight why the prosecutorial misconduct is so severe. You must convince the judge that simply telling the jury to disregard the inappropriate behavior won’t resolve the problem, but in fact, will only call more attention to the prejudicial issue. If you can do that, you will prevail on your motion.

September 9, 2010

Ineffective Assistance of Counsel Should Be Renamed Incompetent Assistance of Counsel

Because, quite truly, that’s what the actual standard is. Ineffective assistance of counsel implies that the attorney wasn’t effective in getting his/her client an acquittal or dismissal of the charges. Clearly, that’s a ridiculous assumption, because if every criminal defendant deserved to beat his/her charges, what would be the point of the entire California criminal justice system?!

California’s standard of ineffective assistance of counsel is that the attorney was actually deficient or incompetent…and that the deficiency or incompetence resulted in prejudice to the defendant.

This means that it’s not enough to disagree with your attorney’s tactics, arguments, or objections. The court will assume that all of those types of decisions were part of an overall strategy (even if it was a bad one) unless the errors were so egregious that they actually fell below the professional standard of reasonable assistance.

So if you…or another impartial California criminal defense attorney…believe that you were unfairly prejudiced by your lawyer’s incompetence, you may prevail on a motion for ineffective assistance of counsel and be entitled to a new trial with a competent attorney.

September 9, 2010

California's Criminal Court Process Explained

Being arrested and thrust into California’s criminal court process can be one of the most frightening experiences of your life. Understanding how it works may help ease some of those fears.

Your first formal court appearance is the arraignment, which is where you enter a guilty, no contest, or not guilty plea. If you plead guilty or no contest, you proceed to sentencing, where the judge hands down your sentence. If you plead not guilty, you move into the pre-trial process.

The pre-trial process is where most California criminal cases resolve. Your attorney will argue motions, engage in plea-bargaining, and conduct an independent investigation of the charges, all in an effort to help you favorably settle your case. If the case settles, you move onto sentencing. If not, to the trial phase.

Jury trials can last anywhere from days to months, depending on (1) the charges filed against you, and (2) how many charges have been filed against you. During the jury trial, both sides present evidence in an effort to prove that you are either guilty or innocent of the charge(s). If you are found not guilty, the case is over, and any bail you posted will be exonerated and returned. If you are found guilty, you proceed to sentencing.

The oldest and strongest kind of fear is fear of the unknown. Hopefully, should you find yourself in the unfortunate situation of being arrested, this overview of the California criminal court process will help ease some of your anxiety.

September 7, 2010

Why Arguing Your Case Can Result in a Better Sentence

California criminal law invests judges with a wide amount of discretion when it comes to sentencing convicted defendants. Whether the law

  • sets forth three different sentencing options (for example, two, three or four years),
  • establishes outer limits (such as 90 to 180 days), or
  • simply provides a maximum sentence (for example, no more than six months in a county jail),

the judge chooses just how lenient or severe the actual sentence will be. And he/she makes that decision due in part to the arguments that both sides present during the California sentencing hearing.

A California sentencing hearing takes place once a defendant has been convicted (either by plea or by a jury). Both sides are permitted to argue the merits of their case so that the judge might impose the sentence that they feel is appropriate.

This is simply another reason why having an experienced California criminal defense attorney is so important. A skilled lawyer knows the most effective ways to win favor with the judge so that their clients aren’t unduly punished.

September 3, 2010

Suspected Burglars Arrested for Drugs and Paraphernalia

Two Nevada men were arrested last week for a variety of drug violations. They were originally stopped because police thought they were burglars. Turns out they were not burglars, but both had warrants out for their arrests. When the cops searched the men before they were transported to jail, the police found, among other contraband, pipes that contained residue from methamphetamines and marijuana.

Pursuant to California’s “possession of drug paraphernalia” law, if the pipes were exclusively used to smoke marijuana, the men would not be subject to prosecution under this law. Possessing devices for smoking marijuana is not prohibited by California law. However, if, in fact, traces or residue of methamphetamines were found in the pipes, the pipes would clearly be illegal.

Yet even with that, there are still a number of legal defenses to California’s “possession of drug paraphernalia law”. Unless the prosecution can prove that you (1) knew of the paraphernalia’s presence, and (2) knew that the object was, in fact, paraphernalia, you can’t be convicted of this law.

September 2, 2010

When Accountants are Held Accountable

The most recent highly publicized case of accountant misconduct involves David Friehling, Bernie Madoff’s longtime accountant who faces 105 years in prison for his alleged fraud charges. And while most accountant misconduct doesn’t rise to this criminal level…or to this level of notoriety…it is, nonetheless, a frequent occurrence.

Criminal conduct subjects California accountants to professional discipline. That is, criminal conduct that is “substantially related to the qualifications, duties or function of accounting” subjects these professionals to discipline.

The problem is that California’s definition of “substantially related” is quite broad. It, not surprisingly, includes criminal offenses such as forgery, fraud and theft (which are all directly involved with the duties and functions of an accountant). However, California courts have also applied it, for example, to carjacking. This conclusion leads a reasonable person to ask, how is carjacking substantially related to the duties of an accountant? It also explains why accountant misconduct is a frequent occurrence.

It’s because of this type of this “personal conduct = professional conduct” illogical reasoning that it is important to retain skilled representation when trying to fight Board action. When the California Board of Accountancy…who obviously has wide discretion when it comes to disciplining its licensees…seeks to take action against your license for criminal conduct, it is critical to persuade the Board that your personal mistake in judgment should not affect your professional license. If you or your attorney can convince the Board that your indiscretion isn’t substantially related to your profession, you are entitled to maintain your license.

September 1, 2010

ESPN's Jay Mariotti Released from Jail on $50,000 Bail

Last week, Jay Mariotti, one of ESPN’s TV commentators and writer for Fanhouse.com was arrested for felony domestic assault committed against his girlfriend. The arrest stemmed from an incident that began in a Santa Monica club and escalated when Mariotti and his girlfriend returned to their Venice Beach apartment. It was there that Mariotti allegedly pushed and shoved his girlfriend, reportedly leaving her with cuts and bruises.

Mariotti was released from LAPD’s 77th Street Division jail on $50,000 bail. This is the amount that is set in the Los Angeles 2010 felony bail schedule. Depending on how Mariotti posted bail will determine how and when bail is forfeited or exonerated.

If Mariotti attends all of his court appearances, his bail will be exonerated or released at the conclusion of his case. If he paid cash bail, the court will refund his entire bail. If he (or a cosigner) posted bail via a bail bondsman, the court will refund the bail to the bondsman. Mariotti (or the cosigner) forfeit the deposit they originally paid to the bond company (which by law, is a maximum of 10% of the bail amount).

If Mariotti does not attend all appearances (either personally or through his attorney), the court keeps the bail. If he paid cash bail, he loses the money. If he (or a cosigner) used a bondsman, the bondsman will go after Mariotti first, then after the cosigner for the money. Alternatively, the bail agent may keep or sell Mariotti’s collateral.

For more information about California’s laws that regulate how and when bail is forfeited or exonerated, feel free to give us a call or contact your local bail bondsman.