Los Angeles Criminal Defense Attorney Blog

The case of People v. Schmitz; 2010 DJ DAR 12959; DJ, C/A 4th, Div. 3, published on 8/19/2010, recently held that the scope of an automobile search involving a parolee as a passenger is narrow. In this case there was a legal stop of defendant's vehicle. Once the law enforcement officer stopped the car, he initiated his questioning, inquiring as to the parole status of the persons in the vehicle. The occupant of the passenger seat replied to the officer that he was indeed on parole and this resulted in the officer conducting a search of the vehicle. During this search, he discovered methamphetamine in the back of the vehicle. This resulted in the driver of the car being criminally charged for the methamphetamine found in the search.

While someone who is on parole can be legally searched, the California Appellate Court held that the right of the officer to search the parolee does not apply to searching the entire car when the car does is not owned by the parolee and he does not have control, possession or authority involving the vehicle. You can read this case in full at the California Courts' Opinions webpage

In short, the answer is yes. The presentence time while the defendant is stuck in jail is not "lost." A defendant who serves presentence custody time in Los Angeles jail is entitled to get credit against their resulting state prison or jail sentence. This is provided for by California Penal Code section 4019. If convicted of a felony this presentence time credit can be from time served in several locations including: jail, halfway house or juvenile facility and mandatory work release.

The time credited will only be the time spent from when the defendant is actually processed into one of the custodial facilities. Take for DUI arrests and investigations for example: unfortunately for the defendant, no time is credited for time spent at the police station awaiting booking, waiting at the scene of the arrest or while being interviewed before being processed. This is specified by California Penal Code section 2900.5(a).

Several exceptions to receiving presentence time credits on an eventual jail or prison sentence can apply when the defendant is in custody for more than one case or if they are being held in one state on an arrest hold for another state. Also if a defendant exercises what's referred to as a "Johnson Waiver," the defendant will allow the court to eliminate custodial credits in order to restore the defendant's probation and impose additional jail time. It is important to note that any "Johnson Waiver" made will eliminate previous jail credits for both an additional jail term and also any prison term if the judge rules to terminate probation.

With all this talk of Lindsay Lohan, rehab and drug addiction going on in the past few months, many people are wondering what happens when someone is convicted of a nonviolent drug possession offense. When an individual is arrested and convicted of one of these offenses, proposition 36 (commonly called "Prop 36"), the Substance Abuse and Crime Prevention Act of 2000 applies. Approximately 30,000 Californians enter Prop 36 each year and take advantage of this opportunity to escape the ravages of drug addiction. The rules and procedures applicable to Prop 36 are set forth in California Penal Code section 1210-1210.1.

By way of background, Prop 36, was passed on November 7, 2000 by a majority of voters. This altered the legal framework for treating nonviolent, simple drug possession defendants by not looking to first lock them up in jail for these drug offenses. Prop 36 allows for drug treatment and probation for these non-violent offenders in an attempt to stem the tide of addiction and end the revolving door of drug addicts going in and out of jail and/or prison without getting the help they so desperately deserve. This way their friends and family members won't have to spend time visting them in Los Angeles County jail.

Incarceration is an option however, if a Prop 36 participant violates the terms of probation and treatment involved in the program. The offenses that fall into being Prop 36 eligible crimes are listed in Health and Safety Code sections 11054 and 11055. The substances listed in this section are marijuana, cocaine, LSD, heroin, methamphetamine and PCP, all common street drugs that many people use. It is important to note that participation in Prop 36 is governed by California Penal Code section 1210.1(b)(1)-(5), which specifically rules out many people convicted of serious or violent felonies unless certain exceptions apply.

Has Prop 36 worked? That is open to debate depending on which side of the drug war you fall on: treatment v. punishment. The benefit to those who complete the program and satisfy all of its conditions is that they may petition the court to then dismiss the charges against them pursuant to California Penal Code section 1210.1(d)(1). Unfortunately, studies by UCLA have shown that Prop 36 is desperately underfunded and needs hundreds of millions of dollars to continue being effective.

While we often get caught up in the present day to day affairs of our lives and the constant media circus around us, (for instance: Lindsay Lohan was just released from jail) it is worth taking a moment to remember how our legal system evolved. Laws weren't always written down in statutes and codes. Ancient societies did not have the formalized legal system that we take for granted here in Los Angeles, with judges, jails and defense attorneys. The Greeks were one of the first people to engage in a objective discourse over the role of law in the affairs of an educated society and their efforts helped to shape the jurisprudence of our modern legal system. There are no early legal treatises to refer to in looking back to Greek history, instead what remains is a collection of speeches, philosophic work and cultural practices. The Greeks looked to the notion of "themis" or a feeling of doing what is proper or correct. Dracon and Solon were the first Greek lawmakers to make efforts to record and notate public rules or an early sense of what today we refer to as "laws." They sought to make rules applicable to all and not arbitrarily enforced by the ruling party at the time, putting forth the idea that the rules should apply to all. This gave way to the formation of codes, which came about through legislative democracies and these codes were viewed as an early form of "law." This separated the Greek society from other groups who lacked rules, statutes and laws and whose people were subject to the whims of the ruling class. These written laws of the early 6th century BC would of course experience change over time. Now that the laws were written, they could be used as a source of political maneuvering and power grabbing. Once Greek laws were inscribed, they were susceptible to change to the benefit or detriment of the people of Greece. We can still see this element of human nature today, with different political parties, groups and interest groups competing to change law on the national and state level to benefit their constituents.

In the case of People v. Hajjaj (175 CA4th 415) the California Appellate Court ruled that a long distance to an available courtroom is "good cause" to extend a defendant's speedy trial right. In this case, the case was on the final day to go to trial pursuant to PC 1382, when the Riverside County calendar court took until after 4 pm on the last day to order the parties to a court over an hour away in Indio.

This meant that the case could not begin on the last day, as the parties could not make it to the distant courtroom in time and would time out. The next day the judge dismissed the case for violating the defendant's speedy trial rights. The California Appellate Court reversed and ruled against the defendant, stating that this long distance to the other court constituted "good cause" for the prosecutor to get a one day continuance, thus allowing for a one day delay in sending the case out to trial. After ruling against defendant and finding the necessary good cause, the appellate court ordered the matter back to the trial court for further proceedings. The finding in this case benefits the prosecutor, as this decision rules that they can get a continuance for good cause if the calendar court finds a trial courtroom before the end of the last day and the case won't be dismissed for violating California Penal Code section 1382.

I hear this a lot from people I meet in Los Angeles, so here is some quick advice for those of you that may feel this way. Implicit in this statement is the idea that either (a) the lay person feels that they can just "handle" the defense of their pending criminal charges on their own and/or (b) that the judge or the prosecutor has their best interest at heart. Let's deal with idea (a), that you feel that you are a relatively smart person and that you can just "learn the law" and fight for yourself, choosing to go "pro per" to do battle with the Los Angeles Deputy District Attorney or City Attorney assigned to your case.

This is a bad idea for many reasons, the two most important being that you probably do not have any legal training or legal experience. The idea that laypeople can just brush up on the justice system totally ignores the years of law school, bar exam training and courtroom experience of a Los Angeles criminal defense attorney. While many have seen that part of the film "Good Will Hunting" (one of my favorites) where Matt Damon's character has some success in court, remember that even his character ultimately lost his case and ended up in jail. Of course most rational people would not try to fix a broken arm without a doctor or perform a root canal without a dentist. The same logic applies to having a professional defend your legal rights when you are charged with a crime. The longer you wait to consult and hire an attorney, the bigger your risk of losing your rights as time goes by. For example, even on a first time DUI charge, if you wait over 10 days past your arrest to request a hearing with the local Los Angeles County DMV driver safety office, you LOSE your right to a hearing. Why would you want to learn on your own time at the cost of losing your legal rights? Would you show up to an important test without ever studying the subject matter when your grade was on the line? Of course not! Furthermore, pending criminal charges tend to overshadow most tests in their relative importance. Getting back to (b), remember that you are dealing with a judge with a huge docket who wants to move cases quickly (i.e. get you to plead guilty) and a prosecutor whose performance review is based upon just how quickly they "win" cases (i.e. get you to plead guilty).

Continue reading "Do I even need a criminal defense lawyer? " »

The jail process can be confusing and intimidating to many first time arrestees and their families. Yesterday I described in detail how to go about finding inmate information concerning your friend or family member who has been arrested in Los Angeles County. Once you have done this, the next step for most people is to make a visit to see how the inmate is faring while in custody. The Los Angeles County Sheriff's department allows visits within certain guidelines.

In order to visit, the LA County Sheriff's Dept requires that you bring with you a valid photo id (California Driver's license or Identification Card, United States Military ID, or valid Passport). Your identification will be reviewed by the jailer and your record may also be reviewed prior to visitation. This identification requirement also applies to children, as minors must bring with them a valid photo identification. Attorneys must also bring identification in the form of a current bar card and California Driver's License or valid Passport. The jail will not let you visit an inmate if you don't bring identification and the Sheriff's Department is very strict in enforcing this policy in my experience visiting inmates in Los Angeles County Jail.

Having a close friend or member of your family in Los Angeles County Jail puts a tremendous amount of worry and strain on you. No doubt you are filled with questions regarding visitation, phone calls and how you can go about even locating which jail your loved one is housed in. The easiest way to do this is to go to the Los Angeles County Sheriff's Department's website inmate locator page.

All you need to do to get the current information on an inmate's location in an LASD jail is to provide a first and last name, and a date of birth or booking number if you have them. The last two pieces of information are not mandatory, but they certainly help to get a more accurate search result and to save time in getting the right information. Once you find the correct inmate, the Los Angeles jail search result will list details regarding the inmate's (1) arrest, (2) bail, (3) jail housing location in the various Los Angeles County Jails, (4) court details, (5) release date and (6) detailed case information. (Note: the inmate locator system uses a device to prevent commercial searches from swamping the system, so you will have to input various characters to see the results.)

Take for instance the driving under the influence arrest of NFL veteran Corey Dillon, who was arrested and jailed just last month. If you needed his jail information you could quickly and easily find it by going to the Los Angeles County inmate locator webpage and typing in his first and last name. This reflects the same information that was reported back in April, that he was arrested on 4/21/10 and released at 0807 on that same day at the Lost Hills Sheriff station.

From the recent car bomb attempt a few days ago in New York City's Times Square, to previous threats to other locations in major cities such as Los Angeles, it is clear that security threats continue to change over time. The Supreme Court of the United States is no exception to having to deal with these security issues and it comes as no surprise to me that they announced today that they will be closing their giant, six ton bronze doors to visitors starting Tuesday. These 44 marble steps lead to the entrance of this historic building that SCOTUS has occupied since 1935, one of the most symbolic symbols of legal justice in our nation.

Visitors to the court will now have to enter the Supreme Court at the plaza level of the building, instead of walking up the historic steps on their way to the highest court in the land. On a personal note, I am glad that I was lucky enough to enter through these doors and walk over the threshold proclaiming "equal justice under the law" early this year. While I understand that security issues cannot be ignored, I wish that they were able to preserve this symbolic experience for others. Supreme Court Justices Breyer and Ginsburg share my belief as indicated by Breyer's statement (joined by Justice Ginsburg), ""In short, time has proven the success of Gilbert's vision: To many members of the public, this Court's main entrance and front steps are not only a means to, but also a metaphor for, access to the Court itself."

The Supreme Court of the United States (aka SCOTUS) is the last word on deciding the constitutionality of laws in the United States. The 9 Supreme Court Justices are the final judicial arbiters of our legal system. They have the last word on cases from recent court decisions in the cases of Melendez-Diaz v. Massachusetts, District of Columbia v. Heller, or for any other case that originates from Los Angeles to New York. For example, the Court in the case of Melendez-Diaz ruled that the 6th Amendment's right to confront witnesses applies to the prosecution's scientist. Following this ruling, If you have been arrested for DUI, like Corey Dillon from several weeks ago, you have the constitutional right to confront the scientist who tested your blood for the presence of alcohol. I hope that maybe one day in the future, that the Court will able to allow its visitors to enter through its front doors once again as I did early last year (that's me in the photo above about to travel up the steps). It is an experience that all Americans should have the opportunity to enjoy.

So you have been convicted of misdemeanor charge (let's use a DUI), complied with the court's orders to attend alcohol classes, and pay your fines and finally, completed your probation. You want to expunge/vacate (get rid of) the record of your misdemeanor DUI conviction? The first thing you should know is that even if you get the DUI expunged, the conviction remains priorable and can be used against you to enhance your punishment on future DUI offenses for the next 10 years. California Penal Code section 1203.2 states that you are able to bring a motion to expunge your record and section 1203.4 explains that upon a successful motion, that the conviction is expunged and corresponding record vacated. California Penal Code section 1203.4 also includes the 10 year prior window that I was explaining earlier and provides for punishment in the form of an enhancement to a future DUI charge. The benefit to your record in getting the expungement is seen when applying for a job in the private sector, as an employer is forbidden to ask you about a misdemeanor DUI conviction that has been expunged (per section 1203.4). The expungements provided for under section 1203.4 do not apply to traffic violations, felony convictions where the defendant has been sentenced to prison, and sex-crime offenses.