LA Criminal Lawyer For many facing criminal charges in California, the consequences that a conviction would have on a non-citizen's immigration status can be a primary concern. For this reason, it is important that non-citizens facing criminal charges consult with an immigration attorney about their case, as well as ensure that their criminal defense attorney is familiar with the impacts that criminal convictions can have on one's immigration status. One of the more troublesome categories of crimes affecting immigration status is controlled substance offenses. In other words, those charged with drug crimes, whether simple possession or sales, can end up being deported or suffer other negative immigration consequences if convicted. Some help is on the way. AB 2195, the Alternate Plea Act, was signed into law by California Governor Gavin Newsom, continuing his trend of approving criminal justice reform legislation throughout his tenure as the state's chief executive. The new law will enable prosecutors to offer a public nuisance charge plea to defendants facings drug convictions. This means that prosecutors can use their discretion to change the charges a person is convicted of in order to avoid the negative consequences that follow a drug crime conviction. The idea is to avoid the specific harm that these convictions have on immigrants and their families when facing drug charges. It is important to note that defendants in these cases are not getting off without penalty. Defendants will still be convicted of a crime, which can be either a misdemeanor or a felony, but the crime is crafted in such a way as to not run afoul of Federal immigration law. This provides the criminal justice system with a new tool to craft dispositions that will not result in negative immigration consequences while still being able to hold individuals accountable for crimes. Ultimately, whether a person is given this break will be up to prosecutors' discretion. In tougher courts, expect that this will be an uphill battle for defendants and their attorneys, as it will for those with prior criminal histories. This law will be most helpful to those facing drug charges for the first time, or who present other mitigating information to persuade prosecutors to give them this break. Obtaining an immigration-safe negotiated disposition requires good litigation and negotiation skills on the part of your criminal defense attorney. Your lawyer will need to gather evidence of your good moral character, including proof of schooling and employment, drug treatment and counseling, character letters, awards and certificates, as well as proof of participation in community service organizations. These factors can help sway a prosecutor who is on the fence as to offering an immigration-safe plea. Learn more about vacating a plea for immigration reasons IF YOU OR A LOVED ONE IS FACING CRIMINAL CHARGES IN CALIFORNIA, CONTACT THE LAW OFFICES OF NICHOLAS LONCAR FOR A FREE CONSULTATION WITH A LOS ANGELES CRIMINAL DEFENSE ATTORNEY TO DETERMINE THE BEST WAY TO FIGHT YOUR CASE AND GET STARTED WITH YOUR DEFENSE. 213-375-3775.
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LOS ANGELES CRIMINAL DEFENSE ATTORNEY Figuring out the best way to clean up past criminal history requires a thorough consultation with an experienced criminal defense attorney. Determining your best course of action depends on what you were convicted of (or possibly arrested or cited for, but not convicted), the sentence served, and your main objectives in obtaining such post-conviction relief. For example, individuals convicted of most misdemeanor offenses will typically seek to get a 1203.4 dismissal, and there may not be much else to do to clean up that record. On the other hand, a person who served a term of felony probation on a "wobbler" offenses can also move the court for an order reducing that conviction to a misdemeanor for all purposes. Unfortunately, for many who either served a prison sentence on a felony charge, or a probation sentence on a permanent felony cannot reduce their felony convictions to a misdemeanor. This leaves a CERTIFICATE OF REHABILITATION - the topic of this article. Learn more about cleaning up your record generally Other related ways of clearing up a criminal record include: Proposition 47 Petitions for Drug Possession and Theft Under $950 Convictions Proposition 64 Petitions for Marijuana Possession, Sales, or Cultivation Convictions Back to the issue at hand, those who have suffered straight felony convictions for crimes like drug sales, drug possession, perjury, insurance fraud, robbery, second degree burglary, and other serious offenses which cannot be reduced to misdemeanors, as well as those who served time in a California State Prison for any felony offense can relieve themselves of being a convicted felon if they obtain a certificate of rehabilitation. What is a CERTIFICATE OF REHABILITATION? A Certificate of Rehabilitation is a court order declaring that a person convicted of a felony is now rehabilitated. If a petition for a Certificate of Rehabilitation is granted, it is forwarded to the Governor by the court and constitutes the application for a pardon. PENAL CODE SECTIONS 4852.01, 4852.21 govern the process of obtaining a Certificate of Rehabilitation, stating “A Certificate of Rehabilitation is a petition requesting that the court declare that a person convicted of a felony which carried a prison sentence is now rehabilitated. A granted Certificate of Rehabilitation is automatically forwarded to the Governor of California as an Application for Pardon. A granted Certificate does not guarantee that a Pardon will be granted.” Who is Eligible for the Certificate of REHABILITATION? The following person are eligible for Certificate of REHABILITATION who have a prior conviction of: In order to apply for a certificate of rehabilitation, at least 7 years (10 years in some cases) must have passed since discharge from parole or completion of sentence, whichever is later, have lived an honest and upright life, and fully complied with all laws, and have been continuously living in California for 5 years. Additionally, a person must have either served a prison sentence, or if the person had served a term of felony probation, must have had the conviction dismissed per 1203.4. This means that those with felony convictions who never went to prison must first apply for a 1203.4 dismissal ("expungement") Persons eligible for a Certificate of Rehabilitation may file a petition with the superior court in Their county of residence once they have completed the period of rehabilitation. The period of Rehabilitation begins to run upon discharge from incarceration or upon release on probation or Parole. The period of rehabilitation requires five years residence in California, PLUS:
A Certificate of Rehabilitation may have all of the following effects:
The petition for Certificate of Rehabilitation must be filed in the superior court of your current county of residence in accordance to (Penal Code section 4852.06). The petition for Certificate of Rehabilitation can usually be obtained from the court clerk, probation department or from an experienced attorney familiar with such petitions. You must notify the district attorney in your county of residence, as well as the district attorney of each county in which you were convicted of a felony. The notice must identify all crimes for which you are requesting a Certificate of Rehabilitation. The forms for sending these notices can also be obtained by the clerk of the court, the probation department or from an experienced attorney familiar with these petitions. Once a petition is filed, the court will schedule a hearing. Before the hearing, the court may Require an investigation by the district attorney. At the hearing, the court may require testimony And records pertaining to the petitioner, including information about the conviction offense and The person’s conduct while incarcerated and since release. Los Angeles Criminal Defense Lawyer A recent concept in criminal law, various jurisdictions, including California, have recently implemented "revenge porn" laws. These new laws address particular conduct which has become increasingly common in our new digital age. As our relationship with technology changes aspects of our everyday lives, it also results in changing criminal laws. If you or a loved one has been accused of "revenge porn" this article may provide some basic information about what that means, but is not intended as legal advice specific to a particular situations. There is no substitute for a consultation with a criminal defense attorney. Call the Law Offices of Nicholas Loncar today for a FREE CONSULTATION with a Los Angeles criminal defense lawyer. What Is Revenge Porn? Revenge Porn involves the digital distribution of nude or sexually explicit photos and/or videos of a person without their consent. It is called “revenge porn" because the images or videos are often distributed as retaliation by a current or former romantic partner. Additionally, hackers and scam artists have been known to access private images and use them as blackmail material. This may be particularly true in the context of people who are public figures, married, or otherwise hold their privacy in great regard. California Penal Code 653.2 PC Makes it a crime to send electronic communications (such as emails or text messages) with the intent of placing the recipient in reasonable fear for his or her safety or that of his or her immediate family. This offense is a misdemeanor punishable by up to one year in jail and a fine of up to $1000. California Penal Code 647(j)(4) Under this law, anyone who “photographs or records by any means the image of the intimate body part or parts of another identifiable person, under circumstances where the parties agree upon the promise of fact that the image shall remain private, and the person subsequently distributes the image taken, with the intent to cause serious emotional distress, and the victim suffers serious emotional distress, such a person has committed and offense of Revenge Porn and subject to the punishment thereof.” In order to convict a person of violating revenge porn laws, there must be evidence to support each of the following elements:
Revenge porn is a misdemeanor, punishable by up to six months in jail, one year of summary probation, and a fine of up to $1000. If the victim of the crime is a minor, the penalties for this offense include a jail term of up to one year and a fine of up to $2000, but would likely also result in more serious charges. CONTACT THE LAW OFFICES OF NICHOLAS LONCAR TODAY FOR A FREE CONSULTATION WITH A LOS ANGELES CRIMINAL DEFENSE LAWYER - 213-375-3775
Los Angeles Criminal Defense Attorney Los Angeles, California is often credited as being the birthplace of the modern criminal street gang. Crips and Bloods and the like are as much an iconic part of LA's identity as they come. In an effort to combat gangs, the California legislature enacted a series of laws that harshly punish gang membership, and substantially increase the penalty for crimes committed "for the benefit of" or "at the direction of" a criminal street gang. These enhancements have been used to tear apart communities of color throughout the state, with an overwhelming majority of gang enhancements charged against Black and Brown Californians. In many Los Angeles neighborhoods, gang identity is so widespread and deep that residents are practically deemed gang members just because of their addresses. Current LA County District Attorney George Gascon has made it a priority to avoid this disparity, declining to seek gang enhancements. In other counties, and in a world after Gascon's time in office, gang enhancements could still be a very serious problem for Angelenos. Luckily, the same California legislature that enacted the "tough-on-crime" series of laws that included gang enhancements, has evolved and recently sought to reform the criminal laws dealing with criminal street gangs. This follows a trend of the California legislature trying to reform the criminal justice system for nearly a decade, beginning in 2014 with Proposition 47, which made all drug possession and theft under $950 a misdemeanor. Recently, the legislature passed AB 333, which will benefit the many young Californians who would face harsher penalties due to alleged gang participation. What is AB 333 and How does it apply? It is an act to amend Section 186.22 of, and to add Section 1109 to, the Penal Code, relating to criminal gangs. AB 333 makes several important changes to the law, including:
This has the effect of not only reducing the number of people who can be charged with gang enhancements, but even substantially reduces the number of "criminal street gangs" that would even qualify. What Was the OLD Gang Enhancement Law? Penal Code § 186.22(b) provides that a defendant who is convicted of certain criminal offenses can face a greater sentence if the prosecution can prove the following:
What is the NEW Gang Enhancement Law? This bill, instead, defines “criminal street gang” as an ongoing, organized organization or group of 3 or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the enumerated criminal acts, having a common name or common identifying sign or symbol, and whose members collectively engage in, or have engaged in, a pattern of criminal gang activity. AB 333, also called The STEP Forward Act, targets the damage that gang enhancements cause to families and communities throughout California. It seeks to reduce the racial imbalance of enhancements in Penal Code (PC) 186.22 by adding Section 1109. Some of the goals AB 333 has include: To end the prosecutors’ ability to claim that people are gang members because they are from the same community, related, or know one another. To reduce the list of crimes allowed for gang enhancements. To prohibit the use of the current change as proof of a “pattern” of criminal gang activity. • To require direct evidence of current gang activity by the defendant. To separate gang allegations from underlying charges at trial. If you or a loved one is currently facing charges relating to possible gang membership, or is currently serving a sentence which includes gang enhancements, contact the Law Offices of Nicholas Loncar today for a FREE CONSULTATION with a Los Angeles Criminal Defense Attorney. We can discuss your case in detail and explore possible defenses and other ways to assist in the preparation of your defense. 213-375-3775.
LA Criminal Defense Attorney Those arrested for driving under the influence in California generally face two different processes following their arrest: A criminal case in court, and an administrative hearing with the DMV. When a person is arrested for DUI, they have only 10 days to request a DMV hearing. If they fail to do so, their license will automatically be suspended 30 days after arrest. If a hearing is requested, no action will be taken against the driving privilege until there has been a hearing. While suffering a DUI conviction in court will result in a driver's license suspension, it is also possible to have one's license suspended even if the DUI case is never filed, dismissed, or after an acquittal at trial. This would happen if a motorist either does not request, or loses the DMV hearing. Administrative Per Se hearings have long been criticized by defense attorneys and the public for their unfair format. In essence, one person, the DMV hearing officer serves two functions: it is the hearing officer's job to put on the case against the driver on behalf of the department, AND also to then decide whether the department has met its burden. This dual role - effectively as prosecutor and judge - has finally been declared by an appeals court to violate Due Process. The Constitution guarantees "due process" before a right or privilege can be taken away. There has always been a process, but the process was deficient. Currently, the DMV is adjusting to the decision, and will implement new procedures, not using one person as judge and prosecutor. As of this writing, this is being done by having two hearing officers assigned to each case, one for each of the previous functions. Ultimately, this may prove insufficient, and a new agency or division may need to be created, to ensure impartiality. What is an Administrative Per Se DMV hearing? An admin per se ("APS") hearing is a proceeding that takes place at the DMV (California Department of Motor Vehicles) after a DUI arrest. The arrest in question is for when a person drives with a blood-alcohol level of .08% or higher (which is above the legal limit). The APS hearing gets its name from California’s “per se” DUI law found in Vehicle Code 23152b VC. This law makes it a crime for a person to: 1. operate a vehicle, and 2. do so with a blood alcohol concentration of .08 or higher. What are the Changes to the APS Hearings? A recent appeals decision declared that the old process for determining whether a person’s driver’s license would be suspended (which gave the hearing officer a dual role of advocate for the department of motor vehicles, and the judge who decides the outcome) violates due process. In the case of CALIFORNIA DUI LAWYERS ASSOCATION v. CALIFORNIA DEPARTMENT OF MOTOR VEHICLES, Facts: The (DMV) conducts Administrative hearings to determine whether automatic Suspension of a driver’s license is warranted after the driver has Been arrested for driving under the influence. At these hearings, the DMV mandates that the hearing officers simultaneously act As advocates for the DMV and as triers of fact. The DMV also Authorizes its managers to change hearing officers’ decisions, or Order the hearing officers to change their decisions, without Notice to the driver. Based on these practices, the California DUI Lawyers Sued the DMV and its director for injunctive and declaratory Relief. CDLA alleged three cause of action: violation of section 42 United States Code 1983 affecting due process rights violation of due process rights Under article I, section 7 of the California Constitution (state due Process) “illegal expenditure of funds” under Code of Civil Procedure section 526a (section 526a). CDLA alleged that both the lack of a neutral hearing officer, and the ex parte communications between DMV managers and hearing officers, violate drivers’ rights to procedural due process under the California and United States Constitutions. Held: 1. Judgment shall be entered in favor of CDLA and against the DMV on CDLA’s first cause of action that is, it is violative of section 42 United States Code 1983 affecting due Process rights. 2. In favor of CDLA, and against the DMV on CDLA’s second and third causes of action, that is, it is violative of due process rights Under Article I, section 7 of the California Constitution and is a complete illegal expenditure of funds. In addition to the permanent injunction regarding ex parte communications, the modified judgment shall also state: the DMV is permanently enjoined and restrained from having its APS hearing officers function as advocates for the position of the DMV in addition to being finders of fact in the same adversarial proceeding. Conclusion: DMV for hearings will be divided between Advocates and Triers of Fact. The duties of the Advocate include providing discovery to both the Trier of Fact and the Respondent. The Advocates will also be entitled to do things such as subbing and prepping witnesses, make opening statements, make objections, introduce evidence, cross-examine witnesses, and make closing arguments. In essence they can practice law. Again, this process is still undergoing changes, but should instantly improve a driver's chances in DMV hearings. If you or a loved one has been arrested for DUI and has questions about the process, contact us now for a FREE CONSULTATION 213-375-3775. TROMBETTA MOTIONS: Los Angeles Criminal Defense Attorney Explains What Can Happen When the Police or Prosecution Fail to Preserve Evidence When evidence which would help a defendant (or may help a defendant) it is called "exculpatory" evidence. Exculpatory evidence need not completely exonerate the accused, but if it tends to show innocence - even a little bit - this is evidence that a defendant would want to present. Unfortunately, in most cases, the police and prosecution get a head start when in comes to investigating crimes and gathering evidence. By the time a defendant is made aware of an investigation, it is usually more difficult to investigate and gather evidence. People forget, things get lost, videos get deleted, and more. For this same reasons, we have previously addressed the Constitutional implications of delayed prosecutions, whereby the police and/or prosecution's long wait to initiate proceedings can compromise a defendant's ability to property prepare a defense. NOTE: IN CALIFORNIA, THE PROCESS BY WHICH A DEFENDANT RAISES A SPOLIATION OF EVIDENCE ISSUE IS GENERALLY CALLED A TROMBETTA MOTION. THEREIN, THE DEFENDANT WILL ARGUE THAT CERTAIN EVIDENCE EXISTED, WOULD HAVE HELPED THE DEFENDANT, AND WAS MALICIOUSLY MISHANDLED BY THE GOVERNMENT SUCH THAT IT CAN NO LONGER BE USED IN PREPARATION OF A DEFENSE. Why there is the Prosecution's Duty To Preserve Evidence Since a criminal case involves very high stakes (liberty), a defendant has a right to a fair trial under the Sixth Amendment to the Constitution. Among other things, this right requires the prosecution to preserve certain evidence obtained during its investigation of the case. During a process known as discovery, it must provide the defendant with the evidence that it will use in presenting its case. The prosecution also must provide the defendant with exculpatory evidence that could support a defense. This is because the prosecutor’s duty is to obtain justice rather than simply obtaining a conviction. The evidence that must be preserved is limited to evidence that would be both material and exculpatory. Evidence is material if it is relevant to an important issue in the case, and evidence is exculpatory if it supports a defense or tends to show that the defendant is not guilty of the crime. Again, it is not necessary that the evidence would conclusively absolve the accused and prove their innocence, but the evidence must have some tendency to show a problem with the government's case or favor the defendant's innocence. Which Agencies are Responsible for Preserving Evidence? A private person or entity does not have an obligation to preserve evidence, unless they were formally working for or with a law enforcement agency. However, most government agencies have a responsibility to preserve evidence. This includes police officers, detectives, prosecutors, investigators working for the prosecutor’s office, administrative staff, and more. The duty to preserve evidence starts as soon as the evidence is obtained and continues after a conviction to cover any exculpatory evidence that might assist a defendant in an appeal or other post-conviction relief. Repercussions of failure to Preserve Evidence A court will not sanction the prosecution on its own if the prosecution fails to preserve evidence. A defendant or their attorney will need to raise the issue. They will need to show that the government acted in bad faith in violating the duty to preserve evidence, and they also need to show that the evidence was material and exculpatory, such that their right to a fair trial was violated. If the defendant succeeds, the court might dismiss the case, suppress related evidence or limit testimony about it. If the issue does not arise until after a conviction, an appellate court might overturn the conviction and order a new trial. What must the defense show to get a favorable outcome? A judge has wide latitude in determining whether a defendant was actually prejudiced by the State’s failure to preserve evidence. If a judge finds that the State failed to preserve evidence but that the defendant would not have been affected by the government’s mistake, then a defendant is not entitled to relief. But if the defense shows that no other available evidence could have served the same purpose, the defense has a good chance at prevailing. Identifying instances of government mishandling of evidence takes great skill an experience. If a poor investigation, police or prosecution misconduct, or unreasonable delay has resulted in lost evidence, you will need an aggressive criminal defense attorney on your side to fight for you. The very nature of this problem - the lost evidence - makes for an uphill battle. Proving that the evidence existed, that it would have helped the defendant, and that it was lost due to government agents acting in bad faith are difficult hurdles to overcome. In other words, while the Constitution provides defendants with a right to a fair trial, actually asserting that right in the context of a Trombetta motion can be quite difficult.
Los Angeles Criminal Defense Attorney Military Diversion, established in January 2016, is a pretrial program for current or former members of any branch of the United States Military charged with misdemeanor crimes. It is also known as the Veteran's Diversion. California Penal Code section 1001.80 establishes a pretrial diversion education program for those who are arrested for nonviolent misdemeanor offenses, including Driving Under the Influence. NOTE: At the time of the writing of this article, Military Diversion is the only kind of statutory diversion that can be granted in DUI cases. What diversion means is that instead of being convicted of a crime and placed on probation or sentenced to jail, a person on diversion will have their case put on hold while they perform certain specified conditions. Other kinds of diversion include Mental Health Diversion, Judicial Diversion, and Drug Diversion (PC 1000). The point of these programs is to use positive reinforcement to get individuals charged with crimes to comply with conditions in exchange for avoiding a criminal conviction. In the case of Mental Health Diversion, for example, a defendant will agree to undergo mental health treatment in lieu of punishment. Military diversion is a special type of “pretrial diversion program.” It is available as a way to avoid a criminal conviction, and as an alternative to jail time in a California misdemeanor offense case against veterans or active members of the military. In a broader sense, Military diversion is a form of pretrial diversion which allows a judge to postpone criminal proceedings for misdemeanor crimes while the defendant obtains treatment for, namely- • Post-traumatic stress disorder(“PTSD”), • Sexual trauma, • Traumatic brain injury (“TBI”), • Substance abuse, or • Mental health problems. The Military Diversion program is a maximum of two years long. Therefore, in order to participate, the defendant must give up their right to a speedy trial. During the period of the diversion, the defendant will have regular court dates where the Veterans Court judge is informed of the defendant’s progress in the program Upon successful completion of a military diversion program, the charges against the defendant will be dismissed. The arrest will be deemed never to have occurred for most purposes. If asked about his or her criminal record in an interview for any job (other than peace officer), the defendant will not need to disclose the arrest or diversion. No record of the arrest or diversion may then be used, without the defendant’s consent, in any way that could result in the denial of any employment, benefit, license, or certificate. The defendant can truthfully indicate in response to a question concerning his or her prior criminal record that he or she was not arrested or diverted for the offense. This law reflects the legislature's recognition of the toll that military service takes on individuals, and seeks to address nonviolent criminal conduct in a more constructive way. Diversion may be available on other grounds as well, but military diversion seeks to address issues unique to those who endure military service and to repay the men and women who put their lives on the line for military service. California courts have other programs for Veterans as well, most commonly called "Veteran's Court." The purpose of Veterans Court is to allow active-duty or former members of the United States Military the opportunity to avoid the consequences of a criminal conviction by participating in treatment to address trauma and mental health issues resulting from their service. The theory behind Veterans Court is that treatment and support systems are more effective at preventing further criminal behavior than punishment. If you or a loved one has been arrested or charged with a crime, contact the Law Offices of Nicholas Loncar today for a FREE CONSULTATION with Los Angeles Criminal Defense Attorney. 213-375-3775.
LA Criminal Lawyer Explains Mental Health Diversion MENTAL HEALTH DIVERSION IN CALIFORNIA What is the General meaning of Mental Health Diversion? Mental health diversion recognizes that it is not fair for a person with mental illness to face criminal prosecution and the associated punishments for relatively minor offenses that pose a low risk to the general public. The mental health diversion program is now widely used in California for both adults and adolescents who are mentally ill and charged with such offenses. Diversion is a process similar to probation, but without a criminal conviction. A person placed on diversion can avoid having a conviction on their record if they comply with the terms of the diversion; in mental health diversion cases, the most common term of diversion is to cooperate with mental health treatment. The idea is that giving individuals an incentive to deal with underlying mental health issues will lead more offenders who have mental health problems to be evaluated and treated, rather than punished with jail, fines, or probation. Is there any Law regarding Mental Health Diversion Program in California? Diversion of Individuals with Mental Disorders [Penal Code § 1001.35 - 1001.36] “On an accusatory pleading alleging the commission of a misdemeanor or felony offense, the court may, after considering the positions of the defense and prosecution, grant pre-trial diversion to a defendant pursuant to this section if the defendant meets all of the requirements specified in paragraph (1) of subdivision (b)” Now, the subdivision (b) talked here above, contains the conditions that have to be met for the a defendant to be eligible for mental health diversion. They are:
Notably, mental health diversion can apply to felony offenses, which is uncommon with other types of diversion, which generally apply only to misdemeanor offenses. This inclusion of felony offenses demonstrates the legislatures desire to have more people who suffer from mental illness participate in treatment rather than being punished for acts related to an underlying mental health issue. A defendant who suffers from mental health issues (or suspects that they might) should discuss the possibility of mental health diversion with their attorney. If appropriate, a motion should be filed with the court, asking that the court place the defendant on mental health diversion. The motion requires a mental health expert, such as a psychologist or psychiatrist to evaluate the defendant based on the statutory criteria, and write a report indicating that the defendant (1) does suffer from a qualifying mental health issue that (2) was a substantial factor in the commission of the crime charged, and (3) would benefit from mental health treatment. If the defendant cannot afford an evaluation by a mental health professional, the court will appoint one. Before a judge grants diversion, the District Attorney's office has an opportunity to object and present their own evidence and have their own mental health expert prepare a report. Conflicting opinions will be resolved by the judge hearing the mental health diversion motion. It is important to show the court that each of the statutory requirements are present, and highlight the defendant's willingness to comply with the terms of the diversion. Often, the biggest obstacle in getting the court to grant mental health diversion, particularly in violent crime cases, will be the requisite showing that the defendant does not pose an unreasonable risk to the community. Here, it is important to point out the behavior of the defendant when not suffering from untreated mental illness, and rely on expert analysis that treatment will better help the defendant to conform their behavior to the law. Mental health diversion can be requested at any point in a criminal case prior to a conviction. If granted, the defendant will be placed on a period of diversion. Upon successful completion, the charges against the defendant will be dismissed. In other words, there will be no criminal conviction. Taking matters one step further, upon successful completion of mental health diversion, even arrest records will be sealed. When is mental health diversion not applicable? While mental health diversion is more broadly applied that many other types of diversion (e.g. allowing diversion in felony cases), there are various conditions too, where this program will not be applicable. A defendant may not be placed into a diversion program, pursuant to this section, for the following current charged offenses: (A) Murder or voluntary manslaughter. (B) An offense for which a person, if convicted, would be required to register pursuant to Section 290, except for a violation of Section 314. (C) Rape. (D) Lewd or lascivious act on a child under 14 years of age. (E) Assault with intent to commit rape, sodomy, or oral copulation, in violation of Section 220. (F) Commission of rape or sexual penetration in concert with another person, in violation of Section 264.1. (G) Continuous sexual abuse of a child, in violation of Section 288.5 If you or a loved one has been charged with a crime and may suffer from a mental health disorder (whether diagnosed or not), contact the Law Offices of Nicholas Loncar today to discuss the possibility of mental health diversion and other defenses.
LA Criminal Lawyer Explains Probation Modification or Early Termination Probation is a type of alternative criminal sentence served by an offender instead of a prison sentence. It is a period of supervision of a criminal offender by a probation officer (felony or "formal" probation) or by the court ("summary" or "informal" probation). In Los Angeles County, misdemeanor probation is typically "informal" probation, meaning that the court supervises the defendant, whereas felony probation is typically "formal" and involves checking in with the probation department. NOTE: probation sentences may include up to one year of jail time as a condition of probation.
Probation is typically granted at the discretion of the judge overseeing the case, but can also be an agreed-upon sentence between the prosecution and the defense. In California and many other states, probation is a system used to supervise, punish, and maintain varying degrees of control over, persons convicted of crimes. Complying with the conditions of probation will typically mean avoiding a harsher sentence. Probationers are generally required to obey all laws, obey all orders of the court, and (in the case of formal probation) check in with probation. Probation terms may also include affirmative obligations such as community service or community labor, classes (anger management, domestic violence, drug and alcohol education, etc.), OR certain restrictions (stay away orders, protective orders, prohibitions against weapons, drugs, etc.). It is important that a person on probation knows and understands the specific terms of their probation, so that they may comply with its terms. Furthermore, if a person is alleged to have violated their probation, they are not entitled to a jury trial regarding guilt or innocence (only a court hearing before a judge) and may be punished with up to the maximum punishment for the crime which they are on probation for. More about probation violations. What is Probation Modification? Under California Penal Code section 1203.3(a), the court has authority to revoke, modify, or terminate your probation at any time during the term of the probation. This not only means that you can be found in violation of your probation for failing to comply with the terms, but that you may also request that the court modify your probation at any time while you are serving your probation and the judge has authority to grant your probation modification. Some instances of probation modifications are:
Under Penal Code 1203.3 PC, judges in California have the discretion to grant an early termination of probation. According to this section, “The court may at any time when the ends of justice will be served thereby, and when the good conduct and reform of the person so held on probation shall warrant it, terminate the period of probation, and discharge the person so held.” Termination of probation is the discretion of the judge. So, before terminating the probation, a judge may consider few things, such as:
AB 1950 shortened the maximum term of probation in most felony cases to two years, and most misdemeanor cases to one year. Some exceptions exist for violent felonies, crimes of domestic violence and DUI. For these offenses, probation may last as long as five years. If a person was placed on probation for a term longer than that allowed under the new law, it is possible to have probation terminated early. More on AB 1950. Other Related Topics: What is a Joint Suspension, Probation Violations, Shorter Probation Terms in Most California Cases, Alternatives to Jail or Prison, Diversion Programs, and New Misdemeanor Judicial Diversion.  Cross-Examination is the process where an attorney gets an opportunity to question an adverse witness. The party calling the witness will get to ask their questions first (called "direct examination"), and questioning by the other party or parties' attorney(s) will take place next. In criminal cases, prosecutors call a variety of witnesses including alleged victims/complaining witnesses, percipient witnesses (people who witnessed the event), expert witnesses, and very often police officer witnesses. The prosecution may call a police witness to describe what they saw, describe their investigation, contradict another witness' statements, and more. Police officers spend a lot of their time testifying and preparing their testimony. In a sense, they are "professional witnesses" and getting the information that you need out of them, as an adverse party (representing the defendant they are seeking to lock up) requires a great deal of skill and experience. Knowing which questions to ask, which questions not to ask, the order in which to ask questions, the manner in which to ask questions, and how to confront false statements are skills which take a strong grasp of the law, but also an understanding of psychology, rhetoric, and practice. Cross-examining a police officer is an important part of trials, preliminary hearings, as well as motion hearings, such as motions to suppress evidence. WHY IS CROSS-EXAMINATION OF A POLICE OFFICER SO IMPORTANT? In a criminal case, one of the most important skill sets might just be cross-examination of a police officer. This means that in order to obtain the best result in a case, it may be vital to have an attorney who excels at the practice of cross-examination, and who is not intimidated or impatient when questioning a witness who is reluctant to give the answers the defense needs. With cross-examination, your attorney is generally trying to raise doubt about the government's evidence against you. In many California criminal cases, the issue of witness credibility is key. This is because, by and large, most cases present two sides of the same story. Whichever side the judge or jury believes is generally the side that prevails at trial. Whether it be the testimony of a complaining witness, the arresting or investigating police officer, or the defendant himself, the importance of establishing that a witness is being truthful is crucial to the side calling that witness. On the flip side of the coin, the opposing side will often attempt to establish that an adverse witness is biased, untruthful, or somehow mistaken about their remembrance of the facts. This is most often done through cross-examination. WHAT CAN A CRIMINAL DEFENSE ATTORNEY DO? Your criminal defense attorney will look to find discrepancies in the officer’s testimony and try to call into question the most damaging portions of an officer's testimony. The defendant may not get to tell their side of the story, so a lot of it does come down to effectively questioning the police officer, making sure we know exactly what their testimony would be impeaching them if their testimony is inconsistent. In a case where the police say one thing and the defendant says something totally different, how do you go about breaking that down? We understand you can question the police officer in a trial, but how else do you go about finding out that there’s truly a discrepancy and proving it, or at least casting doubt on it? CREDIBILITY An important part of all cross-examination is attacking the credibility of an adverse witness. The prosecution is calling this police officer in order to put on evidence of the defendant's guilt. If the jury can see the testifying officer is being untruthful, biased, or careless with the facts, then they will be less inclined to believe incriminating testimony. This does not necessarily mean that the officer must be accused of deliberately misstating the facts, though that happens often (read here about police "testilying"). A police officer might also lose credibility with the jury if the cross-examination can demonstrate the officer's bias, lack of regard for the veracity of statements, or failure to conduct a thorough investigation. Note that much of the attack on an officer's credibility will be "intrinsic" meaning that the officer's own testimony is used to discredit them. But, there are also "extrinsic" ways to contradict their testimony, such as calling other witnesses, or by using audio or video footage to show what was really said or what really occurred. GETTING THE PARTS OF AN OFFICER'S REPORTS WE LIKE INTO EVIDENCE Generally, when a police officer has previously written a report or testified to a fact that helps the defendant's case (e.g. a description of the suspect that does not match the defendant) is one of the easier parts of questioning a police officer on the witness stand. Still, this must be done with care and skill to maximize the impact the fact can have. This is done by first getting the officer to commit to the accuracy of their report or prior statements, the importance of being complete, thorough and accurate, and then shifting focus to the helpful portions of the prior statement. WHAT ABOUT WHAT ISN'T IN THE REPORT? Novice attorneys are notorious for framing their cross-examination around a police officer's report. While there are often helpful facts in an officer's report, the most helpful facts are likely what they did not put in the report. Thorough defense investigation, careful review of the prosecution's evidence, consultation with experts, and of course, experience handling criminal cases are very important to understanding the kinds of information police may intentionally leave out of their reports or testimony. Since police are not likely to volunteer certain information, getting it into evidence takes preparation, skill, and experience. USING TECHNOLOGY IN THIS MODERN WORLD Using audio and video was briefly mentioned above as a way to contradict an officer's testimony. More and more, police are equipped with body worn video cameras, dash cameras, and audio recording devices. Moreover, there are more (and better quality) surveillance cameras and cell phone cameras than ever before. This means that in instances where the police lie or make a mistake, there may be an objective way to prove that. The quality and availability of such technology is light years ahead of where it was even a decade ago, and has become an incredibly important element of criminal defense. Knowing how to get this evidence, as well as how to present it and use it in court is not a very important part of criminal defense. During cross-examination, a recording or video may be used to contradict an officer's testimony, or simply, the officer may be used by the defense to get that evidence in. IF YOU OR A LOVED ONE HAS BEEN ARRESTED, CHARGED WITH A CRIME, OR IS UNDER INVESTIGATION FOR A CRIME IN CALIFORNIA, CONTACT THE LAW OFFICES OF NICHOLAS LONCAR NOW FOR A FREE CONSULTATION WITH A LOS ANGELES CRIMINAL DEFENSE ATTORNEY. 213-375-3775. |
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Law Offices of Nicholas Loncar
1200 Wilshire Blvd
Los Angeles,
CA
90017
Phone: 213-375-3775
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