The outcome of some cases turn on when the defendant is detained and whether there was reasonable suspicion for the detention at that point in time. If the stop is not lawful, the evidence resulting from the stop can sometimes be suppressed under the Fourth Amendment and under Penal Code section 1538.5 in California.
In People v. Brown (2015) __Cal.4th __, Case No. S218993, (Brown), the outcome was determined by the court's analysis of these issues. In Brown, an officer was notified of a 9-1-1 call of a fight in an alley and when he entered the alley, he saw Brown driving his car but no one else. When the officer questioned Brown about seeing the fight, Brown did not respond. The officer came around and saw Brown parked. Pulling up behind Brown, the officer flashed his emergency lights and Brown stayed in the car. The officer saw Brown sitting behind the wheel, apparently intoxicated. Brown was subsequently arrested for DUI.
The court was asked to determine the point in time when Brown was detained and whether there was reasonable suspicion to detain him at that time. The court concludes that Brown was detained when the emergency lights were activated. A reasonable person under the circumstances would not have felt free to leave and Brown submitted to the show of authority by remaining in his parked car. The court further concluded that Brown's brief detention was supported by reasonable suspicion.
copyright © 2015 Christine Esser
The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney- client relationship is only established when a written retainer has been signed.
Thursday, August 6, 2015
Wednesday, August 5, 2015
When an Excused Juror Transforms into a Prosecution Witness, Defendant Gets a New Trial.
People bond in the strangest circumstances. Here, the appellate court acknowledges that juror bias likely occurred when a dismissed juror was called as a prosecution witness in the same trial that he had been excused from. This denied the defendant a fair trial and the case was reversed.
In People v. Morris (2015)__Cal.App.4th __, Case No. B254910, decided on June 10, 2015, a jury convicted Morris of possession of cocaine base for sale. At trial, evidence was admitted that police officers conducted a search of an apartment where drugs and money were found. Morris' wallet, containing his identification, was also found. A series of text messages discovered on his cell phone indicated Morris was involved in drug sales. A defense witness, Vinoya, testified the money found in the apartment was hers and that Morris did not live in the apartment.
During Vinoya's testimony, Juror No. 10 told the court that he had overheard Morris talking on a cell phone and he believed Morris was speaking to Vinoya. The juror overheard Morris saying that he had left money for her inside a pink shoe in the shoebox and that she might have to testify. The juror was dismissed. Over defense objection, the prosecution was allowed to call the dismissed juror to impeach Vinoya.
On appeal, Morris claimed the trial court erred in allowing the prosecution to call the dismissed juror as a witness. The court agreed. A sitting juror may not be called as a witness before the same jury in the trial (Evid. Code, § 704). The court acknowledged that by its plain language, section 704 does not apply to a juror who has been excused; however, the Sixth Amendment and due process guarantee a defendant a right to a fair trial by an impartial jury. "[A]llowing an excused juror to testify in a case in which he or she had once been a juror creates a constitutionally unacceptable probability that the other jurors who ultimately decide the case may look with favorable bias on the excused juror's testimony due to their shared jury experience." (see People v. Sanders (1988) 203 Cal.App.3d 1510). The court further explained that because the evidence of intent to sell was not overwhelming, the dismissed juror's impeachment of Vinoya was not harmless beyond a reasonable doubt.
Copyright © 2015 Christine Esser
The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney- client relationship is only established with a retainer.
In People v. Morris (2015)__Cal.App.4th __, Case No. B254910, decided on June 10, 2015, a jury convicted Morris of possession of cocaine base for sale. At trial, evidence was admitted that police officers conducted a search of an apartment where drugs and money were found. Morris' wallet, containing his identification, was also found. A series of text messages discovered on his cell phone indicated Morris was involved in drug sales. A defense witness, Vinoya, testified the money found in the apartment was hers and that Morris did not live in the apartment.
During Vinoya's testimony, Juror No. 10 told the court that he had overheard Morris talking on a cell phone and he believed Morris was speaking to Vinoya. The juror overheard Morris saying that he had left money for her inside a pink shoe in the shoebox and that she might have to testify. The juror was dismissed. Over defense objection, the prosecution was allowed to call the dismissed juror to impeach Vinoya.
On appeal, Morris claimed the trial court erred in allowing the prosecution to call the dismissed juror as a witness. The court agreed. A sitting juror may not be called as a witness before the same jury in the trial (Evid. Code, § 704). The court acknowledged that by its plain language, section 704 does not apply to a juror who has been excused; however, the Sixth Amendment and due process guarantee a defendant a right to a fair trial by an impartial jury. "[A]llowing an excused juror to testify in a case in which he or she had once been a juror creates a constitutionally unacceptable probability that the other jurors who ultimately decide the case may look with favorable bias on the excused juror's testimony due to their shared jury experience." (see People v. Sanders (1988) 203 Cal.App.3d 1510). The court further explained that because the evidence of intent to sell was not overwhelming, the dismissed juror's impeachment of Vinoya was not harmless beyond a reasonable doubt.
Copyright © 2015 Christine Esser
The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney- client relationship is only established with a retainer.
Tuesday, August 4, 2015
Can a Defendant Be Convicted Twice for One Sexual Act?
No. In People v. Soria (2015) _Cal.App.4th_, Case No. C070238, ("Soria"), decided on August 3, 2015, the Court of Appeal held that the two counts must be consolidated.
In Soria, supra, defendant was convicted twice for one sexual act at trial. He was convicted of rape with an unconscious person in violation of Penal Code section 261, subdivision. (a)(4) , (count one). Additionally, he was convicted of rape of an intoxicated person in violation of Penal Code section 261, subdivision (a)(3), (count two). In this appeal, defendant argued he can only be convicted once for one sexual act and the Court of Appeal agreed.
The court explained that it was following the California Supreme Court's decision in People v. Craig (1941) 17 Cal.2d 453 (Craig), and concluded that defendant cannot be convicted of two counts of rape for a single act of intercourse. In Craig, supra, 17 Cal.2d 453, the California Supreme Court held that under section 261, only "one punishable offense of rape results from a single act of intercourse, although that act may be accomplished under more than one of the conditions or circumstances specified in the . . . subdivisions. These subdivisions merely define the circumstances under which an act of intercourse may be deemed an act of rape; they are not to be construed as creating several offenses of rape based upon that single act." (Id. at p. 455.). [O]nly one punishable offense of rape results from a single act of intercourse, though it may be chargeable in separate counts when accomplished under the varying circumstances specified in the subdivisions of section 261 of the Penal Code." (Id. at p. 458.)
Copyright © 2015 Christine Esser
The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney- client relationship is only established with a retainer.
In Soria, supra, defendant was convicted twice for one sexual act at trial. He was convicted of rape with an unconscious person in violation of Penal Code section 261, subdivision. (a)(4) , (count one). Additionally, he was convicted of rape of an intoxicated person in violation of Penal Code section 261, subdivision (a)(3), (count two). In this appeal, defendant argued he can only be convicted once for one sexual act and the Court of Appeal agreed.
The court explained that it was following the California Supreme Court's decision in People v. Craig (1941) 17 Cal.2d 453 (Craig), and concluded that defendant cannot be convicted of two counts of rape for a single act of intercourse. In Craig, supra, 17 Cal.2d 453, the California Supreme Court held that under section 261, only "one punishable offense of rape results from a single act of intercourse, although that act may be accomplished under more than one of the conditions or circumstances specified in the . . . subdivisions. These subdivisions merely define the circumstances under which an act of intercourse may be deemed an act of rape; they are not to be construed as creating several offenses of rape based upon that single act." (Id. at p. 455.). [O]nly one punishable offense of rape results from a single act of intercourse, though it may be chargeable in separate counts when accomplished under the varying circumstances specified in the subdivisions of section 261 of the Penal Code." (Id. at p. 458.)
Copyright © 2015 Christine Esser
The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney- client relationship is only established with a retainer.
Saturday, August 1, 2015
Can the Lion Hunter Be Caged For Killing [Murdering] Cecil?
No doubt you have read about the Milwaukee dentist in the news because, allegedly, he went to Africa on safari where he and his guide used fresh meat to lure Cecil, a beloved lion that belonged to the Hwange National Park sanctuary, out of the protected territory. Then he shot Cecil with a bow and arrow. Afterward, the dentist and his guide chased Cecil down as Cecil tried to limp away for about two days. When the dentist and his guide caught up with Cecil, the dentist shot Cecil with a gun. Then Cecil was beheaded. Some of these facts are disputed by the guide.
There appears to be two different routes to bring the dentist to justice. First, the dentist can be extradited to Africa to face the justice system in Zimbabwe. Additionally, it might be possible to prosecute him in the United States in federal court using the Lacey Act, if certain facts develop after a full investigation.
Yesterday, officials in Zimbabwe charged the dentist with the same charges his guide is facing there. CNN reports that the dentist, his guide, and the owner of the land where the hunt took place are accused of an illegal hunt under Zimbabwe’s Parks and Wildlife Act. The dentist is accused of financing an illegal hunt, and he and the guide are also accused of illegally using a crossbow "to conceal the illegal hunt" so they wouldn't alert rangers on patrol. Although news reports indicate that the guide now faces up to 15 years in prison if convicted, it is not clear if the dentist’s charges will carry the same potential sentence.
The official Zimbabwe charges may allow the dentist to be extradited under a treaty Zimbabwe has with the United States. The treaty allows persons of interest to be extradited between the two countries in cases that include a conspiracy or attempt to commit a crime, aiding and abetting a crime, or being an accessory. Although the case could stay in United States courts for many years before extradition occurs, there are few options to avoid extradition.
Here in the United States, the Lacey Act outlaws the sale of wildlife that's been killed in violation of a U.S. or foreign law. Under the Lacey Act it is illegal "to import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce ... any fish or wildlife taken, possessed, transported, or sold in violation of any law or regulation of any State or in violation of any foreign law." Recently, in Los Angeles a businessman pleaded guilty to Lacey Act charges related to smuggling endangered abalone and the bladders of Totoaba fish.
Experts dispute whether it is enough to satisfy the 'purchase' requirement of the Lacey Act by hiring a guide, or other local services or to purchase a hunting license or permit overseas so that this occurs in 'interstate commerce.' Some experts believe that to prosecute the dentist under the Lacey Act the government must develop evidence to establish that the lion killer brought part of the lion back to the United States as a trophy. Still others believe it might be possible to show that the killer's actions indicate that he intended to violate the act or made an attempt to violate the act. Although representatives of the dentist claim he relied on a professional guide and believed all the necessary permits were obtained to make his hunt legal.
I support the World Wildlife Fund. If you murder a beloved lion, don't seek me out as your lawyer.
Readmore:http://www.businessinsider.com/did-walter-palmer-break-any-us-law-2015-7#ixzz3ha8fwe00
copyright © 2015 Christine Esser
The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney- client relationship is only established when a written retainer has been signed.
There appears to be two different routes to bring the dentist to justice. First, the dentist can be extradited to Africa to face the justice system in Zimbabwe. Additionally, it might be possible to prosecute him in the United States in federal court using the Lacey Act, if certain facts develop after a full investigation.
Yesterday, officials in Zimbabwe charged the dentist with the same charges his guide is facing there. CNN reports that the dentist, his guide, and the owner of the land where the hunt took place are accused of an illegal hunt under Zimbabwe’s Parks and Wildlife Act. The dentist is accused of financing an illegal hunt, and he and the guide are also accused of illegally using a crossbow "to conceal the illegal hunt" so they wouldn't alert rangers on patrol. Although news reports indicate that the guide now faces up to 15 years in prison if convicted, it is not clear if the dentist’s charges will carry the same potential sentence.
The official Zimbabwe charges may allow the dentist to be extradited under a treaty Zimbabwe has with the United States. The treaty allows persons of interest to be extradited between the two countries in cases that include a conspiracy or attempt to commit a crime, aiding and abetting a crime, or being an accessory. Although the case could stay in United States courts for many years before extradition occurs, there are few options to avoid extradition.
Here in the United States, the Lacey Act outlaws the sale of wildlife that's been killed in violation of a U.S. or foreign law. Under the Lacey Act it is illegal "to import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce ... any fish or wildlife taken, possessed, transported, or sold in violation of any law or regulation of any State or in violation of any foreign law." Recently, in Los Angeles a businessman pleaded guilty to Lacey Act charges related to smuggling endangered abalone and the bladders of Totoaba fish.
Experts dispute whether it is enough to satisfy the 'purchase' requirement of the Lacey Act by hiring a guide, or other local services or to purchase a hunting license or permit overseas so that this occurs in 'interstate commerce.' Some experts believe that to prosecute the dentist under the Lacey Act the government must develop evidence to establish that the lion killer brought part of the lion back to the United States as a trophy. Still others believe it might be possible to show that the killer's actions indicate that he intended to violate the act or made an attempt to violate the act. Although representatives of the dentist claim he relied on a professional guide and believed all the necessary permits were obtained to make his hunt legal.
I support the World Wildlife Fund. If you murder a beloved lion, don't seek me out as your lawyer.
Readmore:http://www.businessinsider.com/did-walter-palmer-break-any-us-law-2015-7#ixzz3ha8fwe00
copyright © 2015 Christine Esser
The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney- client relationship is only established when a written retainer has been signed.
Friday, July 31, 2015
Rappers, Rename the Target of Any Criminal Acts in your Song or Risk Being Charged.
Oh, the creative mind. How we love rappers and poets who channel their inner angst into poetry and lyrics for us to hum along with or sing along with them. But, what happens when inner demons exposed in a song mirror reality?
If song lyrics explicitly identify the proposed victim of a crime so that the lyrics can be found to contain a criminal threat, the artist can be charged with this crime, according to Second District Court of Appeal, Division Six, (which is here in Los Angeles), in People v. Murillo (2015)__ Cal.App. 4th __, ("Murillo"), Case No. B257429, decided on July 22, 2015. In Murillo, the Court of Appeal found that alleged threats were made in the lyrics of a so-called "rap song" distributed on the internet. The song's lyrics lamented a friend’s incarceration and referred to the victims of his friend’s crime by their first and last names, describing them as "hoe[s]," among other profanities, and describing proposed retribution for their "snitching."
These lyrics state: "[T]hese bitches caught him slippin [¶] Then they fuckin snitchin [¶] . . . I'm fucking all these bitches [¶] Hunting down all these snitches [¶] . . . Shit you know we have no fear [¶] I'll have your head just like a dear [¶] It will be hanging on my wall [¶] . . . I said go and get the Feds [¶] Cuz your gonna to end up dead [¶] You're going be laying on that bed [¶] Cuz im coming for your head bitch."
Murillo posted a Twitter message regarding pressure that he had received from the high-school dean to remove the song because it contained threats. Murillo referred to the dean as "dumb ass," and stated "805 hoes on blast lol." Later, one of the identified girls in the song, saw a link to Murillo's new song on her Facebook newsfeed. She opened the link and listened to the song several times before she understood it. She was shocked and frightened by the song's lyrics and also by the comments posted by others. The girl informed her mother, who then contacted law enforcement and Murillo was arrested for two counts of making a criminal threat to a crime victim in violation of Penal Code section 140, subdivision (a), one charge for each girl.
At Murillo’s preliminary hearing, the magistrate noted that publishing the victims' names "speaks to the purpose behind [Murillo's] intent." But the magistrate explained that "the rap song is closer to protected speech than non-protected speech." and discharged the felony complaint and declined to hold Murillo to answer for the charges. The state appealed and sought to reinstate the charges.
The Court of Appeal agreed with the state and ordered that the charges be reinstated.
Penal Code Section 140, subdivision (a), makes it a crime to threaten a crime victim with violence. Subdivision (a), provides in relevant part: "[E]very person who willfully uses force or threatens to use force or violence upon . . . a victim of[] a crime . . . because the . . . victim . . . has provided any assistance or information to a law enforcement officer, or to a public prosecutor in a criminal proceeding . . . , shall be punished by imprisonment in the county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years."
The state asserted that Murillo's song lyrics were a serious expression of his intent to commit acts of violence against both girl victims of his friend’s crime. Section 140 only requires a general intent, not specific intent to intimidate the victim, Also, section 140 does not require that the threat be communicated to the victim.
The court of Appeal found that a reasonable listener could have understood "Moment for Life Remix" to constitute a true threat to Jane Does 1 and 2; that is, the song could be understood to convey a serious expression of intent to commit an act of unlawful violence against the girls. The court focused on the lyrics stating, "you're gonna end up dead," and "I'm coming for your head, bitch." The court also pointed out that Murillo had used the girl’s actual names and repeatedly used the phrase "fuck snitches." Therefore, the Court ruled that for purposes of the preliminary examination, this evidence provides sufficient cause to believe Murillo is guilty of the charged offenses and as a matter of law, the magistrate's legal conclusion otherwise is in error.
copyright © 2015 Christine Esser
The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney- client relationship is only established when a written retainer has been signed.
If song lyrics explicitly identify the proposed victim of a crime so that the lyrics can be found to contain a criminal threat, the artist can be charged with this crime, according to Second District Court of Appeal, Division Six, (which is here in Los Angeles), in People v. Murillo (2015)__ Cal.App. 4th __, ("Murillo"), Case No. B257429, decided on July 22, 2015. In Murillo, the Court of Appeal found that alleged threats were made in the lyrics of a so-called "rap song" distributed on the internet. The song's lyrics lamented a friend’s incarceration and referred to the victims of his friend’s crime by their first and last names, describing them as "hoe[s]," among other profanities, and describing proposed retribution for their "snitching."
These lyrics state: "[T]hese bitches caught him slippin [¶] Then they fuckin snitchin [¶] . . . I'm fucking all these bitches [¶] Hunting down all these snitches [¶] . . . Shit you know we have no fear [¶] I'll have your head just like a dear [¶] It will be hanging on my wall [¶] . . . I said go and get the Feds [¶] Cuz your gonna to end up dead [¶] You're going be laying on that bed [¶] Cuz im coming for your head bitch."
Murillo posted a Twitter message regarding pressure that he had received from the high-school dean to remove the song because it contained threats. Murillo referred to the dean as "dumb ass," and stated "805 hoes on blast lol." Later, one of the identified girls in the song, saw a link to Murillo's new song on her Facebook newsfeed. She opened the link and listened to the song several times before she understood it. She was shocked and frightened by the song's lyrics and also by the comments posted by others. The girl informed her mother, who then contacted law enforcement and Murillo was arrested for two counts of making a criminal threat to a crime victim in violation of Penal Code section 140, subdivision (a), one charge for each girl.
At Murillo’s preliminary hearing, the magistrate noted that publishing the victims' names "speaks to the purpose behind [Murillo's] intent." But the magistrate explained that "the rap song is closer to protected speech than non-protected speech." and discharged the felony complaint and declined to hold Murillo to answer for the charges. The state appealed and sought to reinstate the charges.
The Court of Appeal agreed with the state and ordered that the charges be reinstated.
Penal Code Section 140, subdivision (a), makes it a crime to threaten a crime victim with violence. Subdivision (a), provides in relevant part: "[E]very person who willfully uses force or threatens to use force or violence upon . . . a victim of[] a crime . . . because the . . . victim . . . has provided any assistance or information to a law enforcement officer, or to a public prosecutor in a criminal proceeding . . . , shall be punished by imprisonment in the county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years."
The state asserted that Murillo's song lyrics were a serious expression of his intent to commit acts of violence against both girl victims of his friend’s crime. Section 140 only requires a general intent, not specific intent to intimidate the victim, Also, section 140 does not require that the threat be communicated to the victim.
The court of Appeal found that a reasonable listener could have understood "Moment for Life Remix" to constitute a true threat to Jane Does 1 and 2; that is, the song could be understood to convey a serious expression of intent to commit an act of unlawful violence against the girls. The court focused on the lyrics stating, "you're gonna end up dead," and "I'm coming for your head, bitch." The court also pointed out that Murillo had used the girl’s actual names and repeatedly used the phrase "fuck snitches." Therefore, the Court ruled that for purposes of the preliminary examination, this evidence provides sufficient cause to believe Murillo is guilty of the charged offenses and as a matter of law, the magistrate's legal conclusion otherwise is in error.
copyright © 2015 Christine Esser
The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney- client relationship is only established when a written retainer has been signed.
Wednesday, July 29, 2015
Juvenile Offenses Qualify for Prop 47 Reclassification from Felony to Misdemeanor
The District Attorney in San Diego County had contended that Proposition 47 reclassification from a felony to a misdemeanor did not apply to juvenile offenses because a "conviction" was required and juvenile offenders received a disposition, not a conviction. A new test case out of San Diego, where the trial court agreed with the District Attorney’s Office and did not reclassify the juvenile offender’s theft crime to a misdemeanor, put this argument to rest.
In that case, the juvenile sought a writ of mandate in the court of appeal. In Alexandro N. v. Superior Court (2015, __Cal.App.4th __, the Fourth District held that the offense reclassification provisions set forth in section 1170.18 apply to juveniles. Additionally, the court found that unless there was another reason to hold the juvenile’s DNA, his DNA sample and information must be removed from the state's data base.
Thus, this court case makes it clear that all those old juvenile cases qualify for reclassification under Proposition 47. If you or someone you know, had a juvenile case that involved one of the prior felonies that have been reclassified to a misdemeanor under Proposition 47, seek re-sentencing now.
On my Google plus web page, you can find, "Where to find help for Prop 47 re-sentencing in Los Angeles County, which lists organizations in Los Angeles that will provide free help if you qualify for their services. Also, you can look at June's "How to apply for Prop 47 in California to reduce a felony to a misdemeanor without a lawyer" at lametrocriminaldefense.blogspot.com for more information if you would like to prepare and file the Proposition 47 Petition yourself.
copyright © 2015 Christine Esser
The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney-client relationship is only established when a written retainer has been signed.
In that case, the juvenile sought a writ of mandate in the court of appeal. In Alexandro N. v. Superior Court (2015, __Cal.App.4th __, the Fourth District held that the offense reclassification provisions set forth in section 1170.18 apply to juveniles. Additionally, the court found that unless there was another reason to hold the juvenile’s DNA, his DNA sample and information must be removed from the state's data base.
Thus, this court case makes it clear that all those old juvenile cases qualify for reclassification under Proposition 47. If you or someone you know, had a juvenile case that involved one of the prior felonies that have been reclassified to a misdemeanor under Proposition 47, seek re-sentencing now.
On my Google plus web page, you can find, "Where to find help for Prop 47 re-sentencing in Los Angeles County, which lists organizations in Los Angeles that will provide free help if you qualify for their services. Also, you can look at June's "How to apply for Prop 47 in California to reduce a felony to a misdemeanor without a lawyer" at lametrocriminaldefense.blogspot.com for more information if you would like to prepare and file the Proposition 47 Petition yourself.
copyright © 2015 Christine Esser
The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney-client relationship is only established when a written retainer has been signed.
Monday, July 13, 2015
How to Fight a Driving With a Suspended License [DUI] Ticket: CA Vehicle Code 14601.2
If your driver’s license is revoked or suspended in California for DUI under Vehicle Code section 23152 or 23153, and you get caught driving, you will probably receive a ticket for a violation of Vehicle Code section 14601.2 (or 14601.5)
Therefore, if you aren’t certain if your license was suspended for a DUI, you can check with the Department of Motor Vehicles by calling 1-800-777-0133, from 8 a.m. to 5 p.m., stating driver’s license and following the prompts. If you find out that your California Driver’s license is suspended, don’t drive. Find another method to travel: use public transportation, Uber, hire a driver, call a cab, call a friend, or use a bicycle, but don’t drive a vehicle on a public street or highway.
Vehicle Code 14601.2, subdivision (a), states that a person shall not drive a motor vehicle when that person's driving privilege is suspended or revoked for a conviction of a violation of Section 23152 or 23153 if the person so driving has knowledge of the suspension or revocation.
But knowledge of a suspension, revocation, or restriction of the driving privilege is conclusively presumed if notice has been given by the department to a driver under Section 13106. (See, Section 14601.2(c).) This presumption affects the burden of proof.
Section 13106, subdivision (a), indicates that when a person’s driving privilege is suspended
or revoked, the DMV shall notify the person by first-class mail of the action taken and of the effective date of the suspension, except for those persons who have been personally given notice by the DMV or a court, or by a peace officer, or otherwise. It is a rebuttable presumption, affecting the burden of proof, that a person has knowledge of the suspension or revocation if notice has been sent by first-class mail to the most recent address reported to the DMV, and the notice has not been returned to the DMV as undeliverable or unclaimed.
But if you didn’t know your license was suspended, and you received a ticket for driving with a suspended license due to a DUI charge, it is a defense if you can rebut the presumption that you had knowledge of the suspension. But since knowledge will be presumed if the notice sent out by the DMV has not been returned to them as undeliverable or unclaimed, this is often difficult to establish.
Much may depend on the timing. Sometimes a person is ticketed before the notice of suspension arrives at their door. Or, sometimes the person moves and the DMV notice of suspension never reaches them. Also, as you will read further below, the punishment often depends on the timing of convictions, so it may be in your best interest to allow your attorney to continue a case to avoid having a conviction fall within a 5-year, 7-year , or 10-year period of a prior conviction.
There could also be additional ways that a competent criminal defense attorney can challenge this charge; therefore, it is strongly recommended that you find an experienced criminal defense lawyer or ask for the services of the Public Defender if you cannot afford a lawyer. This is a misdemeanor offense which means that a court can impose a jail sentence of not more than six months.
The penalty for violating Vehicle Code section 14601.2 is as follows:
Upon a first conviction, by imprisonment in the county jail for not less than 10 days or more than six months and by a fine of not less than three hundred dollars ($300) or more than one thousand dollars ($1,000), unless the person has been designated a habitual traffic offender. (Veh. Code, § 14601.2, subd.(d)(1).)
If the offense occurred within five years of a prior offense that resulted in a conviction of a violation of this section or Section 14601, 14601.1, or 14601.5, by imprisonment in the county jail for not less than 30 days or more than one year and by a fine of not less than five hundred dollars ($500) or more than two thousand dollars ($2,000), unless the person has been designated a habitual traffic offender.
If a person is convicted of a second or subsequent offense that results in a conviction of this section within seven years, but over five years, of a prior offense that resulted in a conviction of a violation of this section or Section 14601, 14601.1, or 14601.5 and is granted probation, the court shall impose as a condition of probation that the person be confined in the county jail for at least 10 days.
But, the penalties increase if a person is designated as a habitual offender. Any person convicted of being an habitual traffic offender is punished as follows:
(1) Upon a first conviction, by imprisonment in the county jail for 30 days and by a fine of one thousand dollars ($1,000).
(2) Upon a second or any subsequent offense within seven years of a prior conviction under this section, by imprisonment in the county jail for 180 days and by a fine of two thousand dollars ($2,000).
Beginning October 15, 2015, California will offer traffic ticket amnesty for certain vehicle code violations, including this one.
If you are in the Los Angeles metro area, and you would like a recommendation for an experienced criminal defense lawyer, you can contact me at esserlaw@gmail.com
.
copyright © 2015 Christine Esser
The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney-client relationship is only established when a written retainer has been signed.
Therefore, if you aren’t certain if your license was suspended for a DUI, you can check with the Department of Motor Vehicles by calling 1-800-777-0133, from 8 a.m. to 5 p.m., stating driver’s license and following the prompts. If you find out that your California Driver’s license is suspended, don’t drive. Find another method to travel: use public transportation, Uber, hire a driver, call a cab, call a friend, or use a bicycle, but don’t drive a vehicle on a public street or highway.
Vehicle Code 14601.2, subdivision (a), states that a person shall not drive a motor vehicle when that person's driving privilege is suspended or revoked for a conviction of a violation of Section 23152 or 23153 if the person so driving has knowledge of the suspension or revocation.
But knowledge of a suspension, revocation, or restriction of the driving privilege is conclusively presumed if notice has been given by the department to a driver under Section 13106. (See, Section 14601.2(c).) This presumption affects the burden of proof.
Section 13106, subdivision (a), indicates that when a person’s driving privilege is suspended
or revoked, the DMV shall notify the person by first-class mail of the action taken and of the effective date of the suspension, except for those persons who have been personally given notice by the DMV or a court, or by a peace officer, or otherwise. It is a rebuttable presumption, affecting the burden of proof, that a person has knowledge of the suspension or revocation if notice has been sent by first-class mail to the most recent address reported to the DMV, and the notice has not been returned to the DMV as undeliverable or unclaimed.
But if you didn’t know your license was suspended, and you received a ticket for driving with a suspended license due to a DUI charge, it is a defense if you can rebut the presumption that you had knowledge of the suspension. But since knowledge will be presumed if the notice sent out by the DMV has not been returned to them as undeliverable or unclaimed, this is often difficult to establish.
Much may depend on the timing. Sometimes a person is ticketed before the notice of suspension arrives at their door. Or, sometimes the person moves and the DMV notice of suspension never reaches them. Also, as you will read further below, the punishment often depends on the timing of convictions, so it may be in your best interest to allow your attorney to continue a case to avoid having a conviction fall within a 5-year, 7-year , or 10-year period of a prior conviction.
There could also be additional ways that a competent criminal defense attorney can challenge this charge; therefore, it is strongly recommended that you find an experienced criminal defense lawyer or ask for the services of the Public Defender if you cannot afford a lawyer. This is a misdemeanor offense which means that a court can impose a jail sentence of not more than six months.
The penalty for violating Vehicle Code section 14601.2 is as follows:
Upon a first conviction, by imprisonment in the county jail for not less than 10 days or more than six months and by a fine of not less than three hundred dollars ($300) or more than one thousand dollars ($1,000), unless the person has been designated a habitual traffic offender. (Veh. Code, § 14601.2, subd.(d)(1).)
If the offense occurred within five years of a prior offense that resulted in a conviction of a violation of this section or Section 14601, 14601.1, or 14601.5, by imprisonment in the county jail for not less than 30 days or more than one year and by a fine of not less than five hundred dollars ($500) or more than two thousand dollars ($2,000), unless the person has been designated a habitual traffic offender.
If a person is convicted of a second or subsequent offense that results in a conviction of this section within seven years, but over five years, of a prior offense that resulted in a conviction of a violation of this section or Section 14601, 14601.1, or 14601.5 and is granted probation, the court shall impose as a condition of probation that the person be confined in the county jail for at least 10 days.
But, the penalties increase if a person is designated as a habitual offender. Any person convicted of being an habitual traffic offender is punished as follows:
(1) Upon a first conviction, by imprisonment in the county jail for 30 days and by a fine of one thousand dollars ($1,000).
(2) Upon a second or any subsequent offense within seven years of a prior conviction under this section, by imprisonment in the county jail for 180 days and by a fine of two thousand dollars ($2,000).
Beginning October 15, 2015, California will offer traffic ticket amnesty for certain vehicle code violations, including this one.
If you are in the Los Angeles metro area, and you would like a recommendation for an experienced criminal defense lawyer, you can contact me at esserlaw@gmail.com
.
copyright © 2015 Christine Esser
The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney-client relationship is only established when a written retainer has been signed.
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