California Criminal Defense Blog

On December 6th, the 9th Circuit Court of Appeal will hear oral argument on the very controversial Proposition 8…the proposition that banned same-sex marriage in California. Prop. 8 was declared unconstitutional this past August. So as you can imagine, the caliber of the California appeals attorneys are of the utmost importance to all those who are personally invested in this outcome.

A good California appeals lawyer not only knows the appellate issues inside and out, but has also studied the court…that is, the judges who will be on the three-judge panel. The appellate attorney will research how the judges conduct business, the types of arguments that win favor, and the personalities of the panel.

If the California appeals attorney hasn’t done his/her homework, he/she may stand little chance of winning. Yes, appellate law is supposed to be decided on the issues. However, when those issues aren’t clearly and concisely presented, or are presented in an overly arrogant or offensive manner, the issues sometimes get confused, possibly even set aside.

And the truth of the matter is that whether the case is as publicized as the Proposition 8 appeal or whether it is a personal appeal, of which only you and the opposing party are aware, the importance of having a skilled California appeals attorney is the same. In fact, it can make all the difference in the world.

Officers who are being investigated by internal affairs typically face departmental discipline and…depending on the circumstances... sometimes even criminal charges. That’s currently the situation for a rookie Los Angeles Police Department officer who has resigned pending the results of his internal affairs investigation.

The officer is accused of illegally tapping into a police computer system to obtain personal information about two key witnesses who testified during a trial that resulted in a murder conviction for the defendant. The defendant is a gang-member who was convicted of a drive-by shooting. The officer had been dating the defendant’s sister for several years.

The LAPD referred the case to internal affairs when a detective heard the defendant refer to the officer during phone calls he made to his family from jail. Then, internal affairs was listening in on a conversation two days after the defendant was convicted when he told his father that he had the officer “running their names” so that “they could get a hold of them”. That was the same day the officer illegally accessed the police database.

Once internal affairs concludes its investigation, the Los Angeles D.A.’s office will review the case to determine whether to file criminal charges.

When appealing a California conviction, you want to ensure you have the most qualified legal representation available. But not everyone is in a position to hire “the best that money can buy”. Many times, a defendant must decide whether to go with a public attorney or whether to borrow money to hire a private one. Here are some useful tips to help you determine whether to seek representation from the California Appellate Project or a private lawyer.

First off, the California Appellate Project (CAP) only represents clients who are appealing California felony convictions. If you are appealing a misdemeanor conviction, you must seek private representation.

Second, CAP only represents indigent clients. You are “indigent” if you cannot afford to pay for a private attorney. The attorneys who work for the California Appellate Project receive training and support so that they can offer their clients effective representation.

This means that if you can afford to hire a private attorney, CAP will not represent you. But if you cannot afford private services, you may want to consider borrowing money from a friend or relative to ensure that your attorney devotes as much time as necessary to your case.

Unfortunately, as well-intentioned as a CAP lawyer may be, if he/she has too many cases, he/she may not be able to dedicate the necessary amount of time to any one case. A private attorney controls his/her own caseload and therefore is able to devote as much attention as necessary to each individual client. Private attorneys also generally have access to more resources than publicly retained lawyers.

The bottom line is that you must feel comfortable with your attorney. California appellate law doesn’t allow much time to file an appeal. Acting quickly will ensure that you have the opportunity to make this tough decision.

Let’s assume that the jury convicted you based on evidence which the judge should have excluded, since it was discovered during an illegal search and seizure. Or we can look at the fact that the prosecutor acted unethically when he told the jury to place themselves in the victim’s shoes…and made an inappropriate appeal to their passions. Alternatively, we can assume you were fairly convicted, but that the judge sentenced you to an unduly harsh sentence…a much longer one than you thought you could possibly receive under the law. The bottom line is that any of these legal errors provide legitimate grounds for filing a California appeal.

There are a variety of grounds that support appealing a California conviction. The above scenarios are just a few examples of some of the most common.

The fact is that any prejudicial legal error…that is, a legal error that likely that contributed to an adverse outcome…provides a valid ground for filing a California appeal. If you believe that you or a loved one was the victim of an unjust prosecution, it is advisable that you immediately consult with a California appeals lawyer to learn more about how filing an appeal could cure that wrong.

Following your felony conviction, the judge sentenced you to an unduly harsh criminal sentence…a sentence that exceeds legal boundaries. After the jury convicted you, one of the jurors told your attorney that the verdict was based on an outside investigation that one of the jurors conducted. After discussing your case with another attorney, you believe that your attorney failed to object to a key piece of evidence…a piece of evidence that could have properly been excluded and, that most likely would have proven your innocence. If these or any other legal errors sound familiar, you should consider filing a California felony appeal.

A California felony appeal is available as a legal remedy for any legal errors that took place during your pre-trial, trial, or post-trial proceedings. If successful, your felony appeal could overturn your conviction, entitle you to a new hearing, or receive a sentence that is more proportional to the offense you committed.

But the rules that govern a California felony appeal are technical and complex, requiring the skill of a California appeals attorney. And perhaps the most critical factor is the fact that you only have 60 days following a judgment to file a felony appeal.

If you believe you were unjustly convicted or sentenced, be sure to consult immediately with an experienced California appellate lawyer.

California phantom help scams…also referred to as phony counseling…are on the rise. The current California housing market makes it easy for those who participate in this type of mortgage fraud to prey on desperate homeowners hoping to avoid pending foreclosures.

Prosecutors and other government agencies are on the lookout for people who are engaging in phony counseling or phantom help. The red-flags that these agencies are looking for are the same messages that attract distressed homeowners. These types of messages include verbiage such as

“Stop foreclosure now!”
“Keep your home!”
“We can save your home…guaranteed!”
“We specialize in preventing foreclosures!”

The fact is that helping someone prevent a foreclosure is not illegal in itself. The key ingredient that turns an honest business into a phantom help a scam is payment. If you collect payment…or make a payment…before promised services are rendered, you have a case involving a phantom help scam.

And make no mistake about it, participating in a California phantom help scheme is a big deal. A conviction subjects an offender to substantial fines, prison time and a variety of additional charges.

J.P. Morgan Chase & Co. is the latest big Wall Street bank to disclose the fact that it faces a number of lawsuits based on allegations of improper underwriting. The bank faces class action lawsuits in California and Illinois for "common law fraud and misrepresentation, as well as violations of state consumer fraud statutes." These suits alleging violations of California’s foreclosure fraud laws come after the bank temporarily stopped foreclosures in September.

California’s foreclosure fraud laws subject an offender to both criminal and civil penalties. Thus far, J.P. Morgan Chase is only looking at civil lawsuits, although that is always subject to change, pending a criminal investigation.

California’s criminal foreclosure fraud laws typically involve private “foreclosure consultants” who promise to help postpone or prevent a homeowner’s pending foreclosure.

California’s civil laws regarding foreclosure fraud are different. This civil action alleges that the bank’s employees were not verifying foreclosure documents that their signatures suggested they had. The persons suing (known as the “plaintiffs”) claim that the bank didn’t present “material facts” (that is, relevant information) about the underlying mortgages that made up the mortgage-backed securities in which the plaintiff’s had invested.

Peter Pocklington, the former owner of the Edmonton Oilers…perhaps most notorious for trading the then Oilers superstar Wayne Gretzky to the Los Angeles Kings back in 1988…was recently convicted of perjury charges. The U.S. federal judge who sentenced Pocklington for lying on his 2008 bankruptcy application ordered the defendant to serve six months under California house arrest instead of the 12-16 month jail sentence he would have otherwise faced.

In California, house arrest...interchangeably referred to as home detention, home confinement, or electronic monitoring…is a sentencing option that may be imposed in lieu of a jail or prison sentence. House arrest is not automatically offered by sentencing judges. It is a sentence that must be requested based on appropriate circumstances.

In Pocklington’s case, the judge agreed to impose house arrest based on the fact that this was Pocklington’s first offense and that he has an “extraordinary history of philanthropy.”

This is one of the reasons why it is critical to have a California defense attorney who knows the most convincing arguments to persuade a judge that house arrest is a better option than incarceration. This is a perfect case in point – six months home detention instead of up to 16 months in jail.

Although Penal Code 529 PC California’s False Personation Law…more commonly referred to as false impersonation…may not sound like a major crime, it is. As a California fraud offense, it subjects you to a wide variety of penalties…years in the California state prison, substantial fines, and professional discipline, just to name a few.

You violate California’s false personation law when you impersonate another person to either 1) harm that individual, or 2) gain a personal benefit.

Depending on how you commit this offense, you also subject yourself to prosecution for identity theft, petty or grand theft, and even cyberstalking. So before you commit this offense…believing that it’s a relatively harmless crime…consider what you risk.

Unfortunately, mistaken identification in California criminal cases is a big problem. Although there are a variety of causes for this, two primary causes stand out.

The first is that people are often unscrupulous and falsely accuse innocent people of crimes to try to shift attention away from their own criminal culpability.

The second is that many witnesses to a crime are often under stress, have obstructed views, are unfamiliar with identifying physical characteristics of another race, or are subject to about a zillion other factors that create honest but mistaken identifications.

Fortunately, if you are the victim of a mistaken identification…regardless of the reason…there are remedies available. The key lies in speaking with a skilled attorney who thoroughly understands both the California criminal justice system and the California appeals system. Depending on how far along you are in the system…that is, whether you’ve been incorrectly charged with a crime or whether you’ve been wrongly convicted of a crime…will depend on what strategic steps your attorney will take to reveal your innocence and clear your name.