One of the more controversial topics in criminal law is the Felony Murder Rule.  Generally, people consider murder to mean an intentional killing, and understand unintentional killings to be a lesser crime, manslaughter.  And while this generalization often holds true, it misses some key analysis.  An unintentional killing can be murder in the second degree when the defendant undertakes conduct that is so dangerous to human life that death or serious bodily harm are reasonably likely to occur.  Murders of this kind are often called "depraved heart" or "wanton disregard" killings, and cover activities like driving a car on a playground or shooting a gun with no intention of harming anyone.  These actions, although not intended to kill, are so dangerous, that a person may be deemed guilty of murder if a death results. 

Another theory upon which unintentional killings may be charged as murder is the Felony Murder Rule.  In Felony Murder cases, it has traditionally been enough for the prosecution to prove that a person is guilty of certain underlying violent felonies, and that a death resulted, to charge a person with murder.  For example, if a person sets a building on fire with intent to burn the building down accidentally kills someone, they can be charged with murder.  What's more, co-conspirators to a felony crime can be charged with murder for killings committed by other members of the conspiracy.  This has been perhaps the most controversial part of a law that imputes intentional killing punishment on individuals who never intended to kill anyone.  A common example of this application would be a robbery committed by multiple people, where one of the robbers shoots and kills someone.  Traditionally, all participants in the robbery, even a getaway driver, would be charged with murder, and face a life sentence.  GOOD NEWS!  CALIFORNIA HAS REFORMED THIS LAW!

In September 2018, California's Governor approved Senate Bill 1437, reforming the application of California's felony murder rule.  Under the new law, a co-conspirator who was not the actual killer may only be found guilty of murder if they had an intent to kill and aided the actual killer in the killing, not merely by aiding in the underlying crime, or was a major participant in the underlying felony crime and acted with reckless indifference to human life.  Going back to the getaway driver in the robbery example, this means that the getaway driver very likely cannot be charged with murder for a death they had no intention of causing.  Liability for the underlying crime, as well as for manslaughter likely remain, but participants in violent felonies are not likely to receive a life sentence for another person's murder.  This is a groundbreaking change in a law that has offended justice in California for a long time, and remains the law of most jurisdictions in the United States.

In addition to protecting non-major participants in a felony from being charged with murder today, SB 1437 is retroactive, and can be used to require the re-sentencing and release of Californians currently serving life sentences under the felony murder rule.  Many people serving life sentences were convicted under a felony murder theory, and may be eligible to have their murder convictions vacated pursuant to this change in the law.  Whether SB 1437 will require a murder conviction and sentence to be vacated is a fact-specific inquiry, which may require a thorough analysis of a case.  If a close friend or family member has been convicted of murder for the actions of another person, SB 1437 may require their release and/or re-sentencing.  Contact us today to find out more.

Prosecutions for violent crimes, especially in the cases where a person has died are handled by experienced prosecutors who see their job as securing the most serious punishment possible for those charged.  Even in light of a favorable change in the law, felony murder prosecutions against co-conspirators remain, and such convictions do still occur under the modified Felony Murder Rule or even under the wanton and reckless disregard theory of second degree murder.  If you or a loved on has been charged with a homicide, or may have been involved in the commission of a violent felony where someone died, you will need a skilled, dedicated criminal defense attorney on your side to fight for your freedom.

CONTACT THE LAW OFFICES OF NICHOLAS LONCAR NOW FOR A
FREE CONSULTATION WITH A LOS ANGELES CRIMINAL DEFENSE ATTORNEY
213-375-3775

Full Text of SB 1437
More about California Homicide Laws
More about California Violent Crime Laws

By Nicholas Loncar

Upon a formal arrest, police officers generally read what is known as the Miranda warning to arrestees, informing them of their right to remain silent, their right to counsel, and their right to appointed counsel if they are unable to afford their own lawyer.  One of the most commonly misunderstood aspects of criminal law, many citizens believe that police must read this warning, and/or that a failure on their part to do so should result in a dismissal of their case. 

First, it is important to understand when Miranda warnings are even required.  Miranda warnings are required to be given before custodial interrogation may take place.  Custodial Interrogation has two parts:  (1) custody, and (2) interrogation. 

CUSTODY
A person is deemed to be "seized" and Fourth Amendment protections are invoked where a reasonable person in the suspect's shoes would not feel free to leave or terminate the encounter with police.  Being "In Custody" for Miranda purposes requires more: a person must be under formal arrest or have their freedom deprived to the extent of that associated with formal arrest.  In other words, though a person who has just been pulled over by police, or ordered to "freeze" is seized under Fourth Amendment analysis because a reasonable person in their position would not feel free to leave, they are not deemed to be "in custody" for purposes of requiring a Miranda warning.  Being handcuffed and placed in the back of a police car, on the other hand, does count as being "in custody." 

INTERROGATION
The second prerequisite to a requirement of Miranda warnings, "Interrogation" is deemed to occur when police actions or questioning are "reasonably likely to elicit an incriminating response."  When a person is both in custody and subject to interrogation, they must first be read their Miranda rights.  If, upon a reading of these rights, a person invokes their right to remain silent, questioning must cease unless re-initiated by the suspect.  It is important to note that not all conversations between police and a suspect in custody will qualify as "interrogation" and if the suspect makes voluntary statements while in custody, those statements may be used against the suspect even in cases where no Miranda warnings were given. 

WHAT HAPPENS IF POLICE DO NOT READ A SUSPECT THEIR RIGHTS?
Of course if there is no custodial interrogation, and police fail to read a suspect their Miranda rights, nothing happens, as there has not been a Miranda violation.  Similarly, if Miranda warnings are read to a suspect, and the suspect makes no statements, there is not much to analyze with regards to the admissibility of statements.  On the other hand, if a suspect is subject to custodial interrogation, but police fail to read a suspect their rights, any statement obtained during such custodial interrogation will be inadmissible in court as evidence against the suspect in the government's case in chief.  Unfortunately, this exclusionary rule is limited in that statements obtained in violation of Miranda may still be used as impeachment if a defendant takes the stand at his/her trial.  Additionally, derivative evidence obtained as a result of a Miranda violation may also be used against a defendant for any purpose (more below).  In short, statements obtained during custodial interrogation may only be admitted in the government's case in chief if Miranda warnings were properly read.  This does not mean that the government cannot obtain statements outside of the situations where Miranda warnings are triggered, or rely on evidence other than statements made during custodial interrogation to still prosecute.

RIGHT TO COUNSEL
The US Constitution has two distinct guarantees of a right to counsel, (1) the Fifth Amendment right to counsel, and (2) the Sixth Amendment right to counsel.  The Fifth Amendment right to counsel goes hand in hand with the right against self-incrimination and is implicated when a suspect is being questioned.  If a suspect is read their Miranda warnings and requests a lawyer, the questioning must stop, or will violate the suspect's rights.  The Sixth Amendment right to counsel is only implicated after a defendant has been charged with a crime.  Once a person has been criminally charged, they have a right to have their attorney present for all questioning regarding the case for which they have been charged, but not for questioning about other possible crimes still being investigated.

FRUIT OF THE POISONOUS TREE DOCTRINE
In addition to the exclusionary rule that requires suppression of evidence directly obtained in violation of a suspect or defendant's Fourth, Fifth, or Sixth Amendment rights, some derivative evidence must also be excluded if it is deemed to be "fruit" of an action that violates a person's rights.  For example, if police conduct an unlawful search of a person and find a hotel key in his/her pocket, then use the hotel key to enter a hotel room and find evidence of a crime, the subsequent search of the hotel room will be invalidated as "fruit of the poisonous tree" even if there were otherwise lawful grounds for police to search the room.

INVOLUNTARY STATEMENTS IN VIOLATION OF THE FIFTH AMENDMENT
A concept that is often misunderstood even by experienced criminal defense attorneys is that a violation of Miranda is not the only way (and not even the best way) to get a defendant's statements thrown out.  A suspect's statements to police which are deemed involuntary, regardless of whether Miranda warnings were required or read, can be thrown out for all purposes.  This means that even if a defendant takes the stand, the prosecution will not be able to use a statement against a defendant, and derivative evidence that is the "fruit" of an involuntary statement must also be suppressed.  What may seem like a minor distinction can have huge implications in your case.  This is why it is vital to have the best representation you can when dealing with criminal charges.  The prosecution and the court will not go out of their way to protect your rights, and it is on your defense to ensure your rights are properly asserted and fought for.

Many people misunderstand the concept of Miranda warnings, and one of the most common questions criminal defense attorneys get is something to the effect of "the police didn't read me my rights; does that mean my case gets thrown out?"  Unfortunately, the exclusion of evidence based on a failure of police to read a suspect their Miranda rights is rather limited. 

If you or a loved one has been arrested, charged with a crime, and has questions relating to the arrest procedures that took place, contact the Law Offices of Nicholas Loncar now for a FREE CONSULTATION  213-375-3775.

More about the Right to Remain Silent
More about Police Misconduct

IMPORTANT LINKS:
LA Sheriff's Inmate Locator 
Los Angeles Superior Court  
Los Angeles Police Department
Los Angeles Felony Bail Schedule
Los Angeles Misdemeanor Bail Schedule

Nicholas M. Loncar, Esq. 
Los Angeles Criminal Defense Attorney
t: 213-375-3775 | f: 213-375-3099
Mobile: 323-803-4352 
Nicholas.Loncar@iDefendLosAngeles.com
1200 Wilshire Blvd | Suite 406
Los Angeles, CA | 90017
www.iDefendLosAngeles.com

The Law Offices of Nicholas Loncar Los Angeles Criminal Defense law firm has recently created a new division, known as the High-Stakes Case Unit (HSCU).  The purpose of the HSCU is to offer clients facing the most serious cases the type of individual attention and dedicated time required to provide the best possible defense.  While all criminal cases are serious, our firm is now offering a premium service to clients who face life in prison, the death penalty, or very lengthy prison sentences in serious and violent felony matters.  If you or a loved one is facing the most serious criminal charges, contact the Law Offices of Nicholas Loncar and ask to speak with Nicholas Loncar about a high-stakes case.  Call our office now for a free consultation at 213-375-3775 or e-mail Nicholas Loncar at NL@idefendlosangeles.com with information about your case.

WHAT KINDS OF CASES DOES THE HSCU TAKE?
The HSCU will primarily handle murder (PC 187), attempted murder (PC 664/187), kidnapping, aggravated sex crimes, "three strikes" case, as well as cases with firearm and gang enhancements.  The HSCU will consider other felony matters with significant exposure to prison time.  Misdemeanor cases will not be handled by the HSCU.  This organization permits us to offer the best of both worlds to our clients: makes best-in-class representation affordable for all matters, while also ensuring that clients facing the most severe consequences get premium representation.  CONSULTATIONS WITH THE HSCU ARE FREE AND NO OBLIGATION.  CALL OR E-MAIL NOW.

WHY HAVE A HIGH-STAKES CASE UNIT?
The Law Offices of Nicholas Loncar provide dedicated criminal representation in all matters.  Our clients charged with misdemeanors and less serious felonies get lawyers who will fight very hard for them .  When, however, a case is literally one of life or death, the need for attention to detail increases.  By focusing the efforts of the HSCU attorney and staff, we can do better work and deliver better results.  The District Attorney's office dedicates special units and attorneys to high-stakes cases, and your defense team should, too.  High-stakes cases generally involve heavy investigation, thorough discovery review, repeated custody visits, extensive motions, priority court attendance, and are more likely to proceed to jury trial.  Having an attorney who is devoted to serious cases from start to finish ensures continuity, preparation, and a lack of distractions, leading to the best possible results for our clients.

HOW MUCH DOES IT COST TO HAVE THE HSCU HANDLE MY CASE?
Each case is different and there is no standard pricing scheme for high-stakes criminal cases.  Understand that this unit was designed to ensure that serious cases get the time they require, this dedication unfortunately comes with a premium price tag.  Unlike first time DUI offenses, the amount of time a high stakes criminal matter will take varies significantly.  If you or a loved one is facing a high-stakes criminal case in California, contact Attorney Nicholas Loncar with details about your case.  You will be able to discuss the case, defenses, pricing, and outlook with Nicholas to determine whether the HSCU is for you.  In short, you can expect representation to be pricey, but failing to secure dedicated representation could be much more costly.

WILL YOU HANDLE A SERIOUS CASE FOR AN AFFORDABLE FEE?
While we now offer a premium service with the HSCU, we understand that the premium fees associated with these cases make representation out of reach for many charged with serious crimes.  We will still be accepting cases of all levels of severity and doing our best to offer affordable pricing.  All of our clients receive excellent representation, and those who cannot afford the HSCU will still be receiving excellent representation.  Take a look at our Practice Areas page for all of the types of cases the Law Offices of Nicholas Loncar will handle.  Associated Attorneys Gary Labin and Damon Alimouri have also earned strong reputations and have impressive experience defending criminal cases in Los Angeles and throughout Southern California.

In serious cases, the prosecution will be beyond zealous in their pursuit of punishment.  They will not be sympathetic, and will work to try to get the harshest punishment they can get against you.  Los Angeles Criminal Defense Attorney Nicholas Loncar has saved many clients from life sentences, and knows how to fight the case against you with the best possibility of success.

IF YOU OR A LOVED ONE HAS BEEN CHARGED WITH MURDER, ATTEMPTED MURDER, KIDNAPPING, AGGRAVATED RAPE, GUN ENHANCEMENTS, GANG ENHANCEMENTS, THREE STRIKES CASES, CONTACT THE LAW OFFICES OF NICHOLAS LONCAR FOR A FREE CONSULTATION WITH A LOS ANGELES CRIMINAL DEFENSE LAWYER.

NICHOLAS M. LONCAR, ESQ.
Los Angeles Criminal Defense Lawyer
www.iDefendLosAngeles.com

Phone:  213-375-3775
E-Mail:  NL@idefendlosangeles.com

It is often said that jury trials are won or lost during the jury selection (also called “voir dire”) process.  While this might seem to slight the rest of the process (opening statements, cross-examination of the prosecution’s witnesses, calling of defense witnesses, and of course, closing arguments), the jury selection process will be the defense’s first opportunity to meet the individuals who will decide the defendant’s fate.  Not only is it important to disqualify jurors who may be biased and unfair, but it is important to make sure jurors will take in the statements and evidence they are about to hear through the right lens.  A great trial lawyer will educate and empower the jurors to hold the government to its very high burden, and demand only the most competent evidence to use against the client.  Jurors who are comfortable with guesswork or who are inclined to believe police and other government witnesses should not be on the jury at all, and must be removed.  At the same time, if jurors are biased against law enforcement, we want to try to rehabilitate those jurors so that the prosecution cannot remove them.  After a process that usually takes a day or more, your Los Angeles Criminal Defense Attorney will accept only a panel of jurors who can view the evidence fairly, hold the government to their very high burden, and look for holes and mistakes in the government’s case.

How Does Jury Selection Work?
Juries are selected by a negative process, wherein each party gets an opportunity to question the prospective jurors, listen to their responses to questions posed by the judge, and, most importantly, to remove jurors who will be unfair or biased.  There are two types of challenges to a potential juror:  peremptory challenges and for-cause challenges.  Peremptory challenges are limited in number, and do not require a showing that the potential juror is unfit.  Challenges for cause are unlimited in number, but only applicable where a juror has expressed a bias or limitation that would make them unfit to sit on the jury.  It is important that your criminal defense attorney at trial understand which questions to ask, and which questions not to ask, to end up with the best jury.  Once both sides have exercised their challenges, the remaining top 12 jurors will form the jury, and another two jurors are usually kept as alternates (in the event a member of the juror is unable to continue during trial).  Selecting the right jurors, and making sure that those who stay are committed to justice, is imperative, and something your lawyer needs to be great at doing if you hope to have a two-word verdict (NOT GUILTY) at the conclusion of your trial.

Presumption of Innocence
The first part of my jury selection questions always center around the presumption of innocence.  Most Americans are familiar with the concept, and are in agreement that it is important to the concept of American Liberty.  Still, very few people come it with a TRUE presumption of innocence in a criminal case.  I ask the panel “who here believes in the presumption of innocence?” to which most will raise their hands.  When pressed further, however, we see that most people either presume some wrongdoing, or make no presumptions at all.  This is unacceptable.  The way that I remedy this is by asking individual jurors provocative questions such as “did the government make a mistake in charging my client?”  If the prospective juror is truly presuming the defendant to be innocent, that means that the client did nothing wrong, and is being tried by mistake.  Saying “I don’t know” is NOT a presumption of innocence.  Often times, judges will instruct the jury that the presumption of innocence means that if the jury was to deliberate before hearing any evidence, they would have to find the defendant not guilty.  This is dead wrong and dangerous.  While it is true that a jury must acquit without evidence, this presumption is not strong enough.  A juror who votes “not guilty” is not making a finding of innocence, but rather that there was not enough evidence to convict.  This means that jurors who simply start off with the notion that the defendant has not yet been proven guilty are not presuming the defendant truly innocent.  Asking jurors to imagine that a friend or loved one is accused of a crime helps to show how they might presume a loved one innocent, and must do the same for the defendant, despite being strangers.  Unfortunately, many defense attorneys never correct this misapplication of the presumption.  Judges, prosecutors, and even defense attorneys are typically taken back by this approach, but it is the only correct approach. Simply, a presumption of anything less than innocence is not something a person facing criminal charges can afford to do.  

Preparing Jurors to Look at the Evidence with Skepticism
Many prospective jurors have been led, by media, to believe that police thoroughly investigate crimes, do extensive forensic analysis, and thereby properly save crimes.  This preconception can be very dangerous for defendants.  With the sophisticated crime labs and intelligent/experienced detectives we see on television, we come to believe that when the police conclude someone is guilty, they are probably right.  Moving jurors away from this practice, and striking those who cannot be moved away from it, is paramount to an effective defense at trial.  

Batson/Wheeler
For years, prosecuting attorneys sought to make the panel of jurors as unfair, and as likely to convict as they can.  By profiling jurors, mostly by race, political affiliation, and socio-economic status, prosecutors would seek to stack the odds against the defendant.  Still hoping to win their trials, prosecutors will seek to end up with a jury that leans conservative, lacks negative experiences with law enforcement, and is less likely to empathize with a defendant.  Luckily, the California and US Supreme Courts have prohibited the use of peremptory challenges in this way.  Neither party may seek to eliminate jurors on the basis of race, sex, or membership in a wide-array of other cognizable classes.  Effectively guarding against improper biasing of the jury requires keen observation, quick-thinking, and a strong grasp of the cases dealing with this issue.  It is up to your criminal defense lawyer to notice what is happening, raise timely objections, and effectively argue.

IF YOU OR A LOVED ONE IS FACING CRIMINAL CHARGES, AND IS LIKELY TO TAKE THE CASE TO TRIAL, IT IS IMPERATIVE THAT YOUR LOS ANGELES CRIMINAL DEFENSE ATTORNEY IS SKILLED IN THE PROCESS OF JURY SELECTION.  CONTACT THE LAW OFFICES OF NICHOLAS LONCAR NOW FOR A FREE CONSULTATION AND TO DISCUSS HOW YOUR CASE CAN BE BEST PRESENTED TO ACHIEVE THE BEST POSSIBLE RESULT.  CALL NOW TO SPEAK WITH A LAWYER 213-375-3775.

For decades (and perhaps longer) our criminal justice system has been ill-equipped to deal with a growing mental health and substance abuse crisis.  Nowhere is this crisis more evident than in the criminal courts of Los Angeles.  Unfortunately, mental health issues continue to carry a strong societal stigma, resulting in an overwhelming amount of undiagnosed, untreated, and undertreated mental health issues.  While these mental health issues hold people back in their personal, professional and family lives, it is often only once mental health issues draw the attention of law enforcement that the need for action becomes clear.

In the past, courts were very hesitant to devote time and resources to addressing mental health concerns of defendants, instead opting for incarceration as a mechanism of protecting the public.  Unfortunately, incarceration most often serves only to exacerbate many mental health disorders, leaving the underlying conditions not to be remedied.  In this regard, the criminal justice system has been a failure.  In recent years, however, California courts have taken drastic steps to help treat underlying mental health issues without taking as harsh of a punitive approach as in the past.  Though the system is now inundated and overworked, dedicated people from the LA County Department of Mental Health are working hard to reform the overall system, while still making individual clients a priority, and working with individuals on a plan for treatment that will help to avoid recidivism.  As more resources become available, and as courts are more and more willing to permit criminal defendants with diagnosed mental health disorders to participate in treatment, this crisis is finally being addressed in productive ways.  Having an attorney who is experienced in handling such matters, and dedicated to assisting clients achieve treatment-based resolutions to their cases can be extremely helpful in avoiding convictions and/or incarceration in order to get the necessary treatment.

WHAT IS MENTAL HEALTH DIVERSION?
Criminal defendants California who suffer from mental health issues now have the benefit of pursuing Mental Health Diversion, which permits a defenant to avoid a criminal conviction by participating in a plan for mental health treatment instead. California Penal Code Section 1001.36 grants judges in California the authority to help criminal defendants with mental illness avoid a criminal record by instead working with mental health professionals to craft a long-term plan for avoiding future contact with the criminal justice system.  Mental Health Diversion applies to BOTH MISDEMEANOR AND FELONY CHARGES.

IF I AM CONVICTED OF A CRIME, CAN I DO MENTAL HEALTH TREATMENT IN LIEU OF JAIL/PRISON?
In the event that a judicial officer does not find a criminal defendant suitable for mental health diversion, mental health treatment may still be ordered as a condition of probation in lieu of incarceration.  Probation sentences are beneficial not only in that they avoid long periods of incarceration (which can pose especially problematic in mental health cases), but also generally permit the best post-conviction relief for clearing up a record.  This means that mental health treatment during probation is preferable to custody sentences both in the short term (defendant is not in jail/prison), but aso in the long run (defenant can reduce and expunge charges). 

WHAT IF MY MENTAL ILLNESS IS RELATED TO SUBSTANCE ABUSE/ADDICTION ISSUES?
Mental health treatment is not the only segment of the criminal justice system to experience significant reform.  Drug addiction and mental illness have both drawn the attention of progressive lawmakers in the state.  For drug crimes, treatment in lieu of convictions/jail have long been available, but now there is more effort to treat drug addiction in other kinds of cases where drug addiction (and mental illness) may have played a role.  Convincing judges that treating substance abuse issues will avoid recidivism is an arduous process, and requires careful evaluation, a strong commitment from defendants, and effective advocacy and investigation on the part of your criminal defense lawyer.

DO I HAVE TO DO MENTAL HEALTH TREATMENT?
Not all criminal defendants who suffer from mental health disorders wish to undergo mental health evaluations or treatment.  Adults are at liberty to steer clear of doctors, medications, etc., and our firm will respect those wishes.  Each case is carefully evaluated, not only for the best treatment options, but also for the best other defenses.  If a case can be dismissed on other grounds, or if prevailing at trial seems likely, the new mental health programs may not be appropriate.  Ultimately, the client will decide the direction of the case, and the constitutional rights of a defendant are hers alone to waive.

IF YOU OR A LOVED ONE SUFFERS FROM MENTAL HEALTH DISORDERS AND HAS BEEN CHARGED WITH A CRIME, IT IS IMPERATIVE THAT YOU HAVE STRONG, EXPERIENCED, AGGRESSIVE AND CARING REPRESENTATION ON YOUR SIDE.  DEFENDANTS WHOSE CRIMES MAY BE THE RESULT OF MENTAL HEALTH DISORDERS NEED PROPER EVALUATION, ADVOCACY, AND A TAILORED PLAN FOR SUCCESS.  OUR OFFICE HAS HANDLED NUMEROUS CLIENTS SUFFERING FROM MENTAL HEALTH DISORDERS, ADDICTION, AND MILITARY SERVICE-RELATED MENTAL HEALTH ISSUES, AND HAS CONSISTENTLY OBTAINED CLIENT-ORIENTED RESULTS, AIMING FOR LONG-TERM SUCCESS.  SOME OF OUR MENTAL HEALTH CLIENTS HAVE GONE ON TO AVOID CONVICTIONS, EARN COLLEGE AND POSTGRADUATE DEGREES, AND LEAD HEALTHY, CRIME-FREE LIVES.  CONTACT THE LAW OFFICES OF NICHOLAS LONCAR NOW FOR A FREE CONSULTATION AND TO DISCUSS THE DEFENSES IN YOUR CRIMINAL CASE, AND HOW A MODIFIED APPROACH TO DEALING WITH MENTAL HEALTH ISSUES CAN HELP YOU ACHIEVE THE BEST POSSIBLE OUTCOME IN MY CASE.  CALL NOW FOR A FREE CONSULTATION 213-375-3775

Mental Health issues can affect anyone.  Our modern lives are stressful and often traumatic.  Rather than labeling individuals "crazy" a societal trend of offering help and coping tools to each other is making a difference.  It is our hope that continuing to emphasize empathy and treatment, instead of punishment and incarceration, will help Los Angeles and the rest of the country thrive in its treatment of mental illness, resulting in a happier, safer, and saner population.

Nicholas M. Loncar, Esq. 
Los Angeles Criminal Defense Attorney
t: 213-375-3775 | f: 213-375-3099
Mobile: 323-803-4352 
NL@iDefendLosAngeles.com
1200 Wilshire Blvd | Suite 406
Los Angeles, CA | 90017
www.iDefendLosAngeles.com

Useful LA Criminal Defense Resources:
LA Inmate Locator 
LA Superior Court  
Department of Mental Health (DMH)
LA County Law Library
LA Felony Bail Schedule
LA Misdemeanor Bail Schedule

One of the most significant impacts of a criminal conviction can be the immigration consequences that may follow.  Negative immigration consequences are often the primary concern for non-citizen defendants in criminal cases.  Unfortunately, many criminal defense attorneys have not familiarized themselves sufficiently with Federal immigration law and procedures, and therefore cannot provide adequate representation to their clients in criminal court.  Many defendants have been misinformed of the consequences of a criminal conviction by their own criminal attorneys, their own immigration attorneys, the criminal courts,the prosecution, police, and even friends and family members.

In January 2017, a new law, Penal Code Section 1473.7, went into effect permitting Californians who have already been released from custody to file a motion to vacate a conviction or sentence based on either of two claims: (1) a prejudicial error damaging the defendant’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or no contest, or (2) newly discovered evidence of factual innocence.  In essence, the new law extends a habeas-like right to a review of conviction, with a statutory right to a hearing, to those who have already served their sentence.  This was necessary because many defendants only learned of negative immigration consequences years after they had already completed their sentence, whether due to the initiation of removal proceedings, or efforts to change status and pursue permanent residency and/or citizenship.  Previously, motions to withdraw plea required the moving party to affirmatively prove that they were misadvised, and also had to overcome prompt time constraints.  This new law gives those suffering negative immigration consequences from past convictions some hope to restore and advance their immigration status.  The moving party needs to show only by a preponderance of the evidence that the defendant did not properly understand the consequences or that there is new evidence of factual innocence.

Though it has become a common practice in most criminal courts to advise all defendants of immigration consequences at the time of a plea, the advisals are not always given, and much more often not properly understood.  Additionally, people have plead guilty despite their own innocence out of fear of more serious consequences.  The California legislature has come to understand how serious these consequences are for people, and is working to give non-citizens an renewed opportunity.  California joins 44 other states in now offering a mechanism for challenging unlawful convictions after a sentence has already been served.

There is a "reasonable diligence" time constraint, so if you have suffered a negative immigration consequence, or may in the future due to a prior conviction, it is important to move quickly.  The law does not require a removal order to have already been issued, and negative immigration consequences do not just include removal.  Individuals interested in applying for or renewing visas, green cards, naturalization or any other immigration benefit can also file a motion to vacate if vacating the plea will improve the likelihood of success in that process.

Our firm has successfully vacated damaging convictions, helping clients achieve citizenship and avoid removal, even prior to the new law through a strong understanding of immigration consequences, zealous advocacy, and strong written motions.  With new laws extending the ability to vacate a plea to more people, our firm looks forward to keeping even more families together.  CALL NOW FOR A FREE CONSULTATION WITH A PASSIONATE, AGGRESSIVE LOS ANGELES CRIMINAL LAWYER 213-375-3775.

Additional Resources
Immigration Consequences of Criminal Convictions
Immigration Law Resource Center
Full Text of Penal Code Section 1473.7

If you or a loved one is suffering negative immigration consequences, including deportation, removal, denial of admission, denial of naturalization, visa, green card, citizenship, or relief from such consequences due to a prior conviction, contact the Law Offices of Nicholas Loncar now to speak with an experienced Los Angeles Criminal Defense Attorney about your case.  It may be possible to correct the past.  CALL NOW FOR A FREE CONSULTATION WITH A PASSIONATE, AGGRESSIVE LOS ANGELES CRIMINAL LAWYER 213-375-3775.

Proposition 64 – Changes to California's Marijuana Laws

Sales/transportation/cultivation – now misdemeanors instead of felonies

When medicinal marijuana was legalized in California in 1996, many may not have imagined that the legalization of recreational use was just around the corner. On November 8, 2016, California approved Prop 64. This measure allows those who are 21 and over to use, possess, and cultivate small amounts of marijuana for personal use. In addition, Prop 64 allows those who are properly licensed to sell marijuana to those who are 21 and over. Because Prop 64 legalizes acts that were once illegal, this has created a significant amount of work for criminal defense attorneys. For example, the cultivation of more than six marijuana plants was once a felony before Prop 64. However, it is now classified as a misdemeanor. In addition, before Prop 64, the possession of marijuana for sale without a license and the sale/transportation of marijuana for sale without a license were considered felonies. Both are now considered misdemeanors under Prop 64.

Recreational Use Legalized

Under Prop 64, adults 21 and over may legally possess up to 28.5 grams of marijuana for recreational use. In addition, Prop 64 makes it legal for those 21 and over to possess up to 4 grams of hashish for recreational use. However, those who are caught with more than the above quantities may be convicted of a misdemeanor. Misdemeanors in California are typically punishable by up to six months in county jail and/or a fine of up to $500. While a variety of factors will determine the sentence upon a misdemeanor conviction, the fact that Prop 64 reduces the severity of such violations will give a good criminal defense attorney much more room to argue a lenient sentence – and perhaps even a reduction in charges.

Re-sentencing under Prop 64

Perhaps one of the most significant effects of Prop 64 is the fact that it is retroactive. This means that those convicted of marijuana-related felonies prior to Prop 64 may petition the court for a reduction in sentencing. The good thing about Prop 64 resentencing is that the judge must presume the petitioner is eligible for resentencing under Prop 64. However, like most post-conviction attempts at relief, the District Attorney has an opportunity to oppose resentencing. If the District Attorney opposes the petition for resentencing, he or she is required to prove by clear and convincing evidence that the petitioner is not eligible for resentencing under Prop 64. The fact that the burden is placed on the District Attorney to disprove eligibility means that this type of post-conviction relief will be much easier to obtain than other types – thanks to Prop 64.

For some petitioners who have already served most of their sentence, filing a petition for resentencing under Prop 64 may result in the immediate release from county jail. In addition, petitioners may request a reduction from felony to misdemeanor or even misdemeanor to infraction in order to benefit their criminal record and likelihood of employment. In addition, because those convicted of felonies are stripped of civil rights, petitioning the court for a reduction will restore those rights – which include the right to own a firearm.

If you or someone you love is incarcerated under a marijuana violation, or if they now live with the effects of a felony conviction, be sure to contact an experienced criminal attorney to take advantage of this new law. A good criminal defense attorney will understand the nuances of Prop 64, as well as the best route for relief on a case-by-case basis.

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More information on California Marijuana Laws

Prop 57 Creates Changes in Felony Sentencing

On November 8, 2016, California voters enacted Prop 57 – a measure that has significant effects on many felons who are already sentenced. The measure is a response to the overcrowding of California prisons. In fact, in 2011, a federal court ordered California to reduce its prison population by 137.5% or face mandatory release of many prisoners. Governor Jerry Brown backed Prop 57 – also known as the “Public Safety and Rehabilitation Act of 2016,” which came as no surprise. Governor Brown is known for his views on criminal justice reform. However, law enforcement agencies loudly opposed this new law.

The purpose of Prop 57 is to reduce California’s prison population by allowing nonviolent felons to be released on parole earlier than before Prop 57. However, those who oppose Prop 57 argue that the measure’s definition of “nonviolent crimes” is inaccurate. Prop 57 lists the following Penal Code violations as “non violent:”

Assault with a deadly weapon
Battery with serious bodily injury
Solicitation to commit murder
Domestic violence
Inflicting corporal injury on a child
First-degree burglary
Rape/sodomy/oral copulation of an unconscious person or by use of date rape drugs
Human trafficking involving a minor
Hate crimes
Arson of forest land causing physical injury
Assault with a deadly weapon on a peace officer
Active participation in a street gang
Exploding destructive device with the intent to cause injury

How Does Prop 57 Work?

When adults are sentenced, they are placed in prison under either an indeterminate or a determinate sentence. Under indeterminate sentencing, the defendant is sent to prison under a minimum term, but no specific maximum. For example, the common phrase “25 to life” would be an indeterminate sentence, because the defendant will serve at least 25 years, but there is no maximum. Under determinate sentencing, the defendant receives a fixed prison term, complete with a specific release date. Determinate sentencing is more common than indeterminate sentencing.

Defendants who are convicted of more than one crime will have a primary offense, and then receive additional time for lesser offenses (if convicted at the same time). California also allows a judge to impose sentence enhancements for various reasons, including the use of a firearm.
For those who are sentenced to an indeterminate sentence, the parole board may consider releasing the inmate once he or she has served her minimum sentence. Those who are given a determinate sentence do not get parole hearings for consideration of early release. Now that Prop 57 is enacted, those who fall within the non-violent conviction category may be eligible for parole. In fact, many are eligible for parole after serving half of their minimum sentence.  The interesting thing about Prop 57 is that eligibility may be decided solely upon the base term, notwithstanding sentence enhancements.

Prop 57 also gives significant discretion to the California Department of Corrections and Rehabilitation (CDCR). Under the new law, the CDCR may award credits that may reduce their sentence. Proponents of Prop 57 argued that this will encourage good behavior amongst prison inmates. Although more than 66% of inmates are eligible to receive sentence-reducing credits, those who are convicted of a violent offense are capped at a 15% reduction.

If someone you love is serving a prison sentence, and you believe they are eligible for relief under Prop 57, it is imperative to contact an experienced criminal defense attorney. Filing motions under Prop 57 will undoubtedly help to shape and interpret this new law. A good criminal defense attorney will help to shape this interpretation in favor of future petitioners – allowing non-violent offenders to serve a more appropriate and proportioned sentence.

The death penalty is perhaps one of the most controversial topics in the justice system today. With several new laws being passed in 2016, many are wondering if there will be any changes in California’s death penalty laws. Two ballot initiatives in November dealt with the Death Penalty.  One measure attempted to abolish the death penalty, altogether. Another measure proposed to speed up the execution process for those who are convicted. With the increasing publicity of wrongful convictions, as well as concerns about how taxpayer funds are spent, there are several factors to be weighed with these changes. Here is a brief rundown of California’s current death penalty laws.

Proposition 62 – California voters decide not to repeal the death penalty

Proposition 62 was an initiative that would have repealed California’s death penalty entirely. This means that life without the possibility of parole would be California’s maximum sentence for murder. Just over 53% of voters voted “no” on Prop 62, thereby leaving California as one of the 30 states where the death penalty is legal. Had Prop 62 passed, it would have been applied retroactively – meaning all inmates on death row would be converted to inmates who have life in prison without the possibility of parole. Part of Prop 62 would have required those convicted of murder to work during incarceration in order to pay restitution to the victim’s loved ones. The current law requires garnishing an inmate’s prison wages 20%-50% in order to pay restitution to victims’ families.

Those who argued for passing Prop 62 say that the death penalty system is a failure. Since 1978, taxpayers have spent more than $5 billion to carry out only 13 executions. In addition, the fact that wrongful convictions remain a serious problem in the judicial system creates the risk of executing someone who is actually innocent.  The Innocence Project has overturned the convictions of hundreds of death row inmates, proving the serious flaws inherent in our criminal justice system.

Proposition 66 – California speeds up the execution process

Prop 66 works by shortening the time in which those who are convicted may challenge their death penalty sentence. In addition, it will now be up to trial courts to hear challenges petitioning death row convictions. This procedural change will limit the amount of petitions that can be brought challenging the sentence. Those who supported Prop 66 included law enforcement and families of murder victims who argued that the problem with California’s death penalty is that the convicted sit on death row for decades – costing taxpayers billions of dollars. Limiting state appeals to five years and assigning a lawyer to handle the appeals with significantly reduce the amount of time spent litigating the death penalty sentences. In addition, Prop 66 will allow for the prisons to reform death row housing. The measure claims it will save California taxpayers more than $30 million annually.

Those who are against Prop 66 are already looking to the California Supreme Court to prevent Prop 66 from taking effect. It is likely that there will be a flurry of court action on this contentious topic, but for now, California voters have voted to pass it.

White-collar crime refers to a group of offenses primarily dealing with monetary gain. While the term originally referred to business professionals and government officials, we see a range of clients being investigated and charged with white-collar crimes today. From the McDonald’s worker being accused of taking money from the register, to the stockbroker being accused of insider trading, no one is exempt from a white-collar crime conviction.

In California, white-collar crimes include bribery, burglary, credit card fraud, embezzlement, extortion, forgery, identity theft, and several types of fraud. As the internet has become so intertwined with the way we do business, there are a growing number of people being accused of internet and identity fraud. While there are some similarities in the defenses and type of representation necessary to be successful against such charges, defending against white-collar crime is somewhat different than other types of crime. While one may inherently think that white-collar crime is not prosecuted as harshly as violent crime, it is important to understand that white-collar crimes are often severely punished. White-collar crimes are rarely victimless, and those filed as felonies can bring serious jail time and restitution costs.

Credit Card Fraud (More Fraud Crimes)
Credit card fraud occurs when an unauthorized user uses someone else’s credit card with knowledge that they do not have consent to use it. Other types of credit card fraud include using a fake card to receive money, goods, or services. The prosecutor will typically file charges under one of three California penal codes: forgery, grand theft, or petty theft. Depending on the egregiousness, credit card fraud may be filed as a misdemeanor or a felony.

The suspect can be charged up to seven years after the crime is committed, which is a long statute of limitations. In addition, that number can be tolled or suspended in cases of ongoing credit card fraud. For example, if someone is using the credit card over a period of one year, the statute of limitations will not start to run until the use is discontinued.

Since the prosecutor is required to show the defendant both used the card and had the necessary intent, defenses typically center around the intent element. A good criminal defense attorney will argue that the defendant did not know she lacked consent or that the card was stolen.

Embezzlement (More Theft Crimes)
Embezzlement occurs when you start with lawful possession of property or money, and then fraudulently appropriate it. A good example would be a cashier taking money from the cash register. Although the cashier is in lawful possession of the money when he handles it during his shift, once he take the money for himself – he is no longer in lawful possession.  Similar to credit card fraud, embezzlement can be filed as grand theft or petty theft depending on the circumstances of the case. In addition, the district attorney may choose to file charges as misdemeanors or felonies. If you are charged with misdemeanor grand theft or embezzlement, you may face up to one year in jail. Felony grand theft or embezzlement carries a sentence of up to three years. In both circumstances, the defendant will likely owe a significant sum in restitution.

A good criminal attorney will make it difficult for the prosecutor to prove the defendant had the requisite intent. A good criminal defense attorney will also explore additional defenses, such as the defendant being falsely accused, entrapment, or simply that there is insufficient evidence to secure a conviction.

Forgery (More on Forgery)
The definition of California forgery covers several different acts. For example, you may be charged with forgery by signing someone else’s name to a document, falsifying a legal document, or present a false document as genuine for monetary gain. Another common form of forgery is falsifying a prescription. Similar to other white-collar crimes, forgery may be filed as a misdemeanor or a felony depending on the circumstances. However, the district attorney will most likely file as a misdemeanor if the amount in question is less than $950.

Just as with many other crimes, the prosecutor is required to prove the defendant intended to defraud. A good criminal defense attorney will argue the defendant lacked intent to defraud or that the documents involved have insufficient legal significance. In addition, a good attorney will get to know the client well in order to decide if there is a capacity argument. For example, if the client has been diagnosed with a learning disability or is extremely young, there may be viable arguments that the defendant lacked capacity to form the intent associated with a forgery conviction. 

Los Angeles Financial Crimes Attorney

IF YOU OR A LOVED ONE HAS BEEN ARRESTED OR CHARGED WITH A CRIME, CONTACT THE LAW OFFICES OF NICHOLAS LONCAR NOW FOR A FREE CONSULTATION WITH A LOS ANGELES CRIMINAL DEFENSE LAWYER.  213-375-3775

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