California Criminal Defense Blog

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.

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.

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.

A Los Angeles judge has scheduled a preliminary hearing for Dr. Conrad Murray on January 4, 2011. Dr. Murray is the doctor charged with involuntary manslaughter in connection with the drug overdose of legendary pop-star Michael Jackson.

At his California preliminary hearing, prosecutors will attempt to prove that there is probable cause for the judge to hold Murray to stand trial. “Probable cause” is “a state of facts as would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime.”

Whether Dr. Murray will actually go to trial will depend in part on the outcome of his California preliminary hearing, but will also largely depend on what type of plea bargain his attorney can negotiate with the prosecution.

Currently, Dr. Murray is still practicing medicine, as a Los Angeles judge ruled that he could keep his California medical license pending further investigation.

There are a number of precautionary steps within California’s criminal justice system to try to prevent innocent people from being wrongly prosecuted and convicted. One of these steps is a preliminary hearing. A preliminary hearing is held at the beginning of a felony case. Its purpose is to make sure that the prosecution has “probable cause” (that is, sufficient evidence) to “hold you to answer” for your charge(s).

But fortunately, even this type of proceeding is subject to additional “checks and balances”. This is because sometimes the judge simply gets it wrong. When this is the case, California criminal defense attorneys file what is known as a California Penal Code 995 motion to set aside the information.

A California Penal Code 995 motion to set aside the information is a request for a judge to dismiss one or more of the charges against the defendant. The defense files this motion immediately following a preliminary hearing when the defendant has either (1) been illegally committed, or (2) committed without probable cause.

If successful, the requested charge(s) will be dismissed, and the prosecution may even be inclined to offer you a generous plea bargain for any remaining counts. If denied, there is yet another possible remedy to cure the mistake…an appeal.

Anyone charged with a misdemeanor or felony offense in California has the right to a jury trial. The right to be “judged by one of your peers” is so deeply rooted in our criminal justice system that if anything or anyone interferes with that right…the right to a fair trial…you are entitled to a new trial.

A judge may grant a California motion for a new trial anytime a defendant is deprived of a substantial right. And because there are so many ways that a defendant’s substantial rights may be violated, there are a number of grounds on which a defendant can raise this motion.

A California motion for a new trial can be granted based on jury misconduct, prosecutorial misconduct, judicial misconduct, new evidence, new laws, ineffective assistance of counsel…the list goes on and on.
But a motion for a new trial can’t be raised at anytime; it must be raised before the judge pronounces judgment. If...during your trial or shortly thereafter…you believe you were deprived of the right to a fair trial, it is advisable to discuss your situation immediately with your attorney.

It’s a well known fact that when a licensed physician is convicted of engaging in prescription fraud, medical fraud, insurance fraud, or inappropriate behavior with a patient, it’s pretty much a given that he/she will be disciplined. This is because the Medical Board of California governs its licensees when it comes to criminal convictions. Depending on the individual circumstances, it may (1) suspend, revoke, or deny a medical license, (2) warn the license holder, or (3) place the license holder on probation.

What’s not so well known is that the Medical Board will discipline a California doctor for almost any criminal conviction…even if the offense isn’t directly related to the practice of medicine. This means that a conviction for driving under the influence, battery, or even petty theft could ultimately result in the loss of your medical license.

The key is whether the conviction is “substantially related” to the qualifications, functions, and/or duties of being a doctor. If the Medical Board believes that the offense is substantially related to being a physician, it will discipline the license holder. This is why it is advisable to consult with a skilled California criminal defense attorney who knows the most effective arguments to convince it otherwise.

You worked long and hard to become a doctor…don’t let one foolish mistake or unfortunate misunderstanding take that away from you. It’s always worth fighting the charge!

Let’s say you and your girlfriend get into a fight. Emotions are running high and in the heat of passion, you strike her. She calls the police and you are charged with and convicted of misdemeanor domestic violence. Your California judge sentences you to pay a fine, attend batterer’s classes, and to complete some nominal hours of community service.

Now let’s say that you’re a doctor, a lawyer, a dentist, a teacher, a real estate broker… anyone who holds a professional license in California. You are not only subject to the court-imposed penalties mentioned above, but also risk losing your professional license which essentially means your livelihood.

Professional licenses in California are subject to revocation for criminal convictions that are “substantially related” to your profession. Similarly, professional licenses in this state may not even be issued to someone who has previously been convicted of a crime… even if the conviction has been expunged.

The good news is that this is not a black and white law. The fact is that “substantially related” is open to interpretation. Many would argue that hitting your girlfriend in the heat of passion isn’t substantially related to your duties, for example, as a real estate broker.

It’s because of issues like these that make it so important to consult with a skilled California criminal defense attorney immediately upon a criminal accusation. There are ways to prevent your California professional license from being revoked based on a criminal conviction… you just have to know the right arguments to make and the right steps to take.

Jonas Silverio resigned as Firebaugh High School’s principal on June 30th when his teaching credentials were suspended due to pending criminal charges. Silverio is set to be arraigned at the Compton Superior Court on August 11th. If convicted of any of the alleged 17 counts of lewd conduct with a minor, the state will turn the temporary suspension into a lifetime revocation.

What’s particularly noteworthy about this case is the fact that Silverio had a 1995 conviction for the same offense, yet has been teaching ever since. This is because the laws have changed since he applied for his credentials in 1998. Prior to that, the fact that a California court had expunged a conviction allowed an individual to obtain or maintain teaching credentials. Today, a conviction for an offense like that would result in an automatic denial / revocation.

But with respect to other types of offenses, the law is more complicated. Before the California Commission on Teaching Credentialing will suspend / revoke / deny teaching credentials based on criminal charges, it must evaluate whether or not the offense renders the applicant / credential holder “unfit to teach”. In order to answer that question, it looks to a variety of factors, including (but not limited to): impact on conduct of students, extenuating or aggravating circumstances, and likelihood of recurrence.

Silverio is currently being held at Men’s Central Jail in Downtown Los Angeles on $1 million bail.

Arraignment was postponed for Lonnie Franklin Jr. (a.k.a. the “grim sleeper) until August 23rd because of a change in his public defender. The Los Angeles man who was charged with 10 counts of murder and one count of attempted murder that took place over a 22-year period is expected to enter a “not guilty” plea. Franklin’s “grim sleeper” nickname came about because of a 14-year gap in killings, the most recent of which took place in 2007.

In this state, an arraignment is the first stage of the California criminal court process. As the first stage of this process, a California arraignment is the defendant’s first opportunity to enter a plea. People who are represented by an attorney generally enter a “not guilty” plea at the arraignment, since there hasn’t been much time to conduct an in-depth investigation into the case.

However, there may be times when entering a guilty or “no contest” plea may be beneficial as well. Perhaps you know that other charges should have also been filed that were inadvertently ignored, perhaps you simply want to “get on with your life”, perhaps you can’t afford the time and expense of fighting the case.

Whatever the circumstances, California arraignment law is strictly regulated and must comply with rigid timelines…if it does not, the state may be forced to drop its charges against you.

Professionals beware…if you suffer a criminal conviction (or perhaps even simply suffer an arrest)…your professional license, livelihood, and reputation are on the line. This is because most California professional organizations discipline their members for criminal conduct.

And while that sounds somewhat obvious at first blush, thinking about it further raises some controversial issues. For starters, what kind of criminal conduct? Any criminal conduct?

The legal answer is no, not any criminal conduct. Only conduct that is substantially related to the qualifications and functions of your profession are supposed to result in discipline. The real-life answer, however, is yes…pretty much any criminal conduct.

Let’s say that you’re a social worker or marriage therapist accused of a California crime. If, for example, the allegations against you are that you engaged in criminal sexual conduct with a client, a hold on your license might be understandable.

However, California law has upheld license restrictions and suspensions for social workers and marriage therapists accused of California crimes including DUIs, brandishing a weapon, possession of a controlled substance, battery, and theft…and these are just a sample of the types of crimes that the state argues are “substantially related” to being a therapist.

As you can see, essentially any criminal conduct could subject you to professional discipline, which is why it is critical to consult with an experienced California criminal defense attorney immediately upon any accusation. Keeping your record clean is the key to keeping your job.

California’s attempted murder law is easy to charge but fortunately a little more difficult to prove. We say this because anytime someone is beaten, sexually assaulted, maimed, or even threatened, overzealous prosecutors charge this crime. They attempt to prove that any serious injury or any criminal conduct involving a weapon necessarily involves an attempted murder.

However…

Before you can be convicted of California’s attempted murder law, the prosecutor must prove that you had the “specific intent to kill”. Not the intent to seriously injure someone, not the intent to threaten someone, not the intent to maim someone, not the intent to torture someone, but the specific intent to kill another person.

Proving this intent can be difficult, absent very compelling evidence. If, for example, you are holding a loaded gun to someone’s head and pull the trigger…but for some reason, the gun malfunctions and doesn’t fire…your intent is pretty clear.

But absent this type of scenario, proving that you intended to kill someone can be a challenge. And an experienced California criminal defense lawyer is sure to help make that challenge even more difficult.