The law is constantly changing.  Last month, several new pieces of legislation were passed affecting the administration of California Criminal Law. Over the course of 2016, several new bills were enacted. It is important for California citizens to understand what these laws mean, and how they will work. For example, in the wake of mass shootings throughout the U.S., Governor Brown recently signed several new gun laws. In addition, SB 443 closes a loophole that law enforcement often used in order to confiscate personal property of an arrestee. In addition, the Brock Turner Stanford case led to legislature expanding the definition of rape and changing mandatory minimum sentences for sexual assaults.

AB 2466:  Felon Voting In County Jails
We have previously written about Felon Disenfranchisement, its negative history and impacts on recidivism.  Governor Brown recently signed a new law that will allow felons to vote while behind bars.  Civic pride and participation in government have been linked to reduced recidivism.  Ultimately, the goal of incarceration has to be primarily about rehabilitation and helping past offenders re-enter society and become productive members.  Alienating people from the political process, and telling them that they can have no input in the laws they must follow is a failed policy with no merit and an ugly history.  Kudos to the legislature and the Governor for this significant change.  California now joins Vermont and many European nations who encourage inmate participation in democratic government.

The New Gun Laws
California’s new gun laws are meant to balance the rights of law abiding gun owners with enhancing public safety. With mass shootings occurring more frequently than ever, Governor Brown signed new bills, which make existing California gun laws stricter. Magazine capacities are now limited to 10 bullets, owners who wish to purchase ammunition are required to undergo a background check, and the lending of firearms is now much more regulated. One of the main concerns prior to enacting this legislation was a loophole on California’s restriction on detachable magazines. Manufacturers realized there was a loophole to bypass the law by creating guns that release an empty magazine and insert a new one – thus, the gun had the same effect as one with a detachable magazine, but did not technically include a detached magazine. The new gun laws also make it a misdemeanor for someone to falsely report a gun being lost or stolen, and places a 10-year restriction on purchasing guns if you are caught purchasing a gun with the intent to sell or give it to someone else. One thing that all gun owners should know is that ignorance of the law is no defense. Thus, it is in all gun owners best interests to learn and understand the new laws to avoid being in violation of them. California has recently enacted six new gun laws, altogether.

SB 443: Civil Asset Forfeiture Reform
Prior to SB 443, federal law allowed law enforcement to permanently retain custody of an arrestee’s personal property, even if the District Attorney decided not to file charges against the arrestee. Although California law did have some safeguards against this practice before SB 443, police were able to use the broader federal laws to avoid California’s safeguards. Those in support of the bill argued that those who were uneducated and had low income were commonly taken advantage of under this loophole. SB 443 has now revived citizens’ Constitutional rights by requiring a conviction prior to permanent custody of the defendant’s property. While there are some exceptions, SB 443 will protect many arrestees who otherwise had little recourse. What does this mean in layman’s terms? It means that if you are arrested, and you are not convicted, the police (in most instances) cannot permanently retain your property.
More on Asset Forfeiture -  Asset Forfeiture Attotneys

Changes in CA’s Rape Laws
The case of Brock Turner, the Stanford swimmer who was convicted of sexually assaulted a young woman while she was intoxicated and unconscious, has also led to changes in California’s rape laws. Turner was found guilty of assault with the intent to rape an intoxicated woman, sexually penetrating an intoxicated person with a foreign object, and sexually penetrating an unconscious person with a foreign object. Under California rape laws, the judge was able to sentence Turner to just six months in county jail and three years of formal probation. As you may imagine, this sparked outrage amongst many in the community. AB 2888, however, takes discretion away from the judge in sentencing an offender for sexually assaulting someone who is intoxicated or unconscious (and thus unable to give consent). Prior to the new laws, California defined rape as using threat or physical force, but did not include victims who are unconscious or intoxicated.  Under AB 2888, judges can no longer sentence an offender to probation when the sexual assault is of a victim who was intoxicated or unconscious. AB 701, in addition, expands the legal definition of rape to include all forms of sexual assault that is not consensual. These changes in California’s rape laws will go into effect in January 2017.

To understand how these laws may impact you, contact the Law Offices of Nicholas Loncar now for a free consultation with a Los Angeles Criminal Defense Attorney.  213-375-3775.

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

LA SUPERIOR COURT  |  LAPD  |  LA DISTRICT ATTORNEY  |  LA PUBLIC DEFENDER  |  LA LAW LIBRARY

Many clients who get charged with a DUI as a result of a checkpoint ask: “How are DUI checkpoints legal?” Some want to challenge the checkpoint under theories of entrapment, and others argue that checkpoints are unconstitutional. However, the Supreme Court has spoken to the constitutionality of police checkpoints. Unfortunately, for the client, DUI checkpoints are generally constitutional. However, it is important for everyone to understand why they are constitutional, because it helps to paint a broader picture about our constitutional rights, as a whole. After all, these checkpoints stop everyone, without any individualized suspicion of wrongdoing.

Don’t people have a right to be left alone by the police if they are not breaking the law?
Generally, the Fourth Amendment to the U.S. Constitution does protect your right not to be searched or seized without probable cause. Specifically, the Fourth Amendment protects you from “unreasonable searches and seizures.” A “search” occurs when the government violates a reasonable expectation of privacy. A “seizure” occurs when the government’s action would lead a reasonable person to believe they are not free to leave. It has been argued that police checkpoints constitute both a search and a seizure, but the Supreme Court has carved out an exception for certain checkpoints.

First, it is important to note that police can stop your car as long as they have probable cause to believe that you have violated the law. Probable cause can occur in many different ways. The most common scenario is that an officer sees you violate a vehicle code. However, even anonymous tips can serve as probable cause if that tip is corroborated or proven sufficiently trustworthy.

What is the scope of the DUI checkpoint exception?
In 1990, the Supreme Court handed down a 6-3 decision in a case called Michigan v. SItz. The court held that the DUI checkpoints in that case met the Fourth Amendment standard of reasonable search and seizure. Although the police did not have probable cause to stop every car that came through the checkpoint, the Court reasoned that Michigan had a substantial government interest in preventing drunk driving. Performing a non-discriminatory DUI checkpoint was a rationally related technique to preventing drunk driving. The Court also mentioned that drivers were only stopped for a brief moment, and that the government intrusion was slight. In balancing the dangers of drunk driving versus this minimal intrusion, the Court found that DUI checkpoints are constitutional.

Are there instances where checkpoints are not constitutional?
It’s important to note the decision in Michigan v. Sitz was a narrow one. The decision does not authorize police to set up checkpoints purely for investigative purposes. This means that the police cannot set up a checkpoint for the purpose of finding illegal narcotics. The difference between that type of checkpoint and a DUI checkpoint is the government interest. While the government does have an interest in ensuring that people on the road are not transporting narcotics, this interest does not warrant the intrusion of stopping cars for that purpose. Further, any checkpoint that gives police unfettered discretion will not likely be upheld. The Court in Sitz only ruled as to the constitutionality of the initial stop associated with a checkpoint, but further explained that detention for longer investigation such as sobriety testing may require an individualized suspicion standard. Remember, however, once police see objective signs of impairment, they have probable cause to investigate further and to detain you for longer.

What is the difference between “saturation patrols” and DUI checkpoints?
Saturation patrols are not checkpoints. Saturation patrols simply refer to concentrated, targeted efforts to catch people driving under the influence. Police focus on cars that are speeding and swerving; which gives them probable cause to stop the vehicle. Saturation patrols are legal in all 50 states.

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

LA SUPERIOR COURT  |  LAPD  |  LA DISTRICT ATTORNEY  |  LA PUBLIC DEFENDER  |  LA LAW LIBRARY     

Public awareness of the inefficacy and injustice of America's "War on Drugs" has grown to the point that a majority of Americans now agree that the nation's drug policies have failed.  As drug problems continue to plague urban, suburban and rural areas, it is quite clear that prohibition and incarceration have failed to remedy this social and public health issue.  Though ineffective in abating drug use, the War on Drugs does have very strong effects.  Much like drugs themselves, the War on Drugs has destroyed lives, families, communities, and the ideals of Freedom and Liberty that inspired this nation.

CONTRIBUTION TO MASS INCARCERATION
The United States has the world's second highest incarceration rate.  Of over 200 nations, only one (Seychelles, a small group of Islands off the east coast of Africa, in the Indian Ocean, with a population of under 100,000) incarcerates more of its people per capita.  Astonishingly, India and China, nations with four times our population, have smaller prison populations.  While the US accounts for only 5% of the world population, a whopping 25% of those behind bars are here in the land of the free.  But what does this have to do with drugs?  Well, according to the ACLU, a quarter of all those behind bars were arrested for drug violations.  Main stream America is heavily desensitized to the incarceration of black and Latino men.  The consequence is that some people will get arrested and sentenced to jail for marijuana, and meanwhile, others are given diversion programs for possession of cocaine and heroin.  Incarceration has become big business, too, with a strong lobby that seeks harsher punishments for bigger profits.  The War on Drugs may not stop people from using drugs, but it does result in many people, too often poor people and people of color, being caged and dehumanized for victimless "crimes."

DISPROPORTIONATE EFFECTS ON MINORITY POPULATIONS
Drug use is not more common in minority communities.  Nevertheless, drug arrests are much more common, and incarceration is a much more likely consequence when the offender is black or Latino.  Worse yet is that certain laws directly favor white drug users.  Two prominent examples of this are the sentencing disparity between crack and powder cocaine, as well as less severe penalties for methamphetamine in many jurisdictions (including California, before the passage of Prop 47).  In fact, at its very inception, the War on Drugs was aimed at thwarting civil rights and anti-war protests.

FOREIGN APPROACHES TO ADDICTION
While the US has employed harsh drug laws and strict punishments for drug use, many other countries have taken much more libertarian approaches, often with emphasis on treatment of addiction as a medical, rather than criminal issue.  Portugal, for example decriminalized all drugs, resulting in lower rates of drug use and fewer drug-related fatalities.  Switzerland's "harm reduction" approach (including free methodone clinics, free needle exchanges, etc.) has also helped the nation reduce crime rates, drug-related deaths and drastically cut the rate of HIV infections.  Historically, the Netherlands have been at the forefront of treating drug use and addiction as a public health issue, rather than as a criminal issue.  MORE DRUG POLICIES FROM AROUND THE WORLD

MORE WAR ON DRUGS INFORMATION
A Brief History of the War on Drugs:  Initiated in 1971 by President Richard Nixon, the War on Drugs .  in the 1980s, President Ronald Reagan led a strong campaign to impose harsher punishments on drug use, specifically targeting crack cocaine.

War on Drugs Wikipedia:  A comprehensive article including the history of the War on Drugs, legality, incarceration, foreign policy implications, socio-economic impacts, US government involvement in drug trafficking and more.

DEFENDING DRUG CRIMES IN LOS ANGELES
If you or a loved one has been arrested or charged with a drug crime, contact the Law Offices of Nicholas Loncar now for a Free Consultation with a Los Angeles Criminal Defense Attorney.  213-375-3775.  Drug crime defense requires an up to date knowledge of the various drug laws, available programs and recent developments in Fourth Amendment interpretations, as search and seizure issues are commonly central to drug crime defense.  Additionally, drug crimes often involve asset seizures, such as cash, automobiles, medical marijuana and more.

CONCLUSION
The War on Drugs has been a complete and utter disaster.  Our government took the wrong approach to dealing with drug use problems, and then rather than attempting to adjust, just seemed to ramp up the force behind flawed policy.  Drug laws need to be reformed, regardless of what lobbyists for the prison industry, alcohol industry and others have to say about it.  It's time, and the people are on board.

In a recent en banc opinion by the 9th Circuit Court of Appeals, the court ruled that concealed firearms do not receive the full protection of the Second Amendment. In Peruta v. San Diego, the 9th Circuit held that San Diego’s restrictions on the right to carry a concealed weapon are constitutional. In other words, the court said that the right to bear arms does not extend to the right to carry concealed weapons. The controversy arose when residents of California who applied for a license to carry a concealed weapon were denied for “good cause.” Although the Second Amendment to the U.S. Constitution famously grants “the right to bear arms,” California and every other state is free to delegate to cities and counties the power to issue written policies concerning procedures for obtaining a license to carry a concealed weapon.

San Diego County implemented a policy requiring applicants to provide “supporting documentation” to demonstrate good cause for carrying a concealed weapon. Under the San Diego rules, an applicant must show a sufficiently pressing need for self-protection (such as a restraining order against someone else they are in fear of). This prevented those who wished to carry concealed weapons for self-defense, but unable to document the specific need from obtaining their licenses.

The California Appellate Court posed the following question: “Does the restricted activity, here, a restriction on a responsible, law-abiding citizen’s ability to carry a gun outside the home for self-defense, fall within the Second Amendment right to keep and bear arms for the purpose of self-defense? Much of the analysis at the lower level courts had to do with the word “bear,” in other words, the plaintiffs argued that the right to bear arms means the right to “carry” arms. The Appellate Court, however, determined that the “right to bear arms,” under the Second Amendment does not include, in any degree, the right of a member of the general public to carry concealed firearms in public.

However, the Appellate Court seems to contradict itself. In one statement, it concludes, “Because the Second Amendment does not protect in any degree the right to carry concealed firearms in public, any prohibition or restriction a state may choose to impose on concealed carry—including a requirement of “good cause,” however defined—is necessarily allowed by the Amendment.” However, in the next breath, it states, “There may or may not be a Second Amendment right for a member of the general public to carry a firearm openly in public. The Supreme Court has not answered that question, and we do not answer it here.” This seems to foreshadow a future clarification by the U.S. Supreme Court. In the midst of mass shootings, it is highly likely that the Supreme Court will review the case. On the other hand, the Supreme Court may deny review, as it has passed up other major Second Amendment cases recently.

It is unlikely that the Supreme Court will take the case before a ninth justice is in the picture. For now, Republicans in the Senate are refusing to consider President Obama’s nominee to replace Scalia after his recent passing. Conservatives argue that President Obama’s nominee is too liberal when it comes to guns. Scalia was an avid defender of the Constitution’s originalist meaning, and replacing his seat on the bench with someone with a more liberal view would significantly impact the outcome of Supreme Court cases. However, until the Supreme Court chooses to rule on this issue, counties and cities are free to place restrictions on citizens who wish to obtain a concealed weapon permit.

It is critical to retain an experienced criminal defense attorney as soon as possible. The earlier the attorney makes contact with the district attorney, the more likely it is that the case will result in a favorable outcome for the defendant. A good criminal defense attorney will present mitigating circumstances, including the lack of the defendant’s criminal history, as well as highlighting weak points in the prosecution’s case.

DEFENSES  | AVOID JAIL TIME | THEFT CRIMES  | COMMONLY USED TERMS

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

LA SUPERIOR COURT  |  LAPD  |  LA DISTRICT ATTORNEY  |  LA PUBLIC DEFENDER  |  LA LAW LIBRARY   

Being a prosecutor is a powerful position. Prosecutors have the ability to greatly influence convictions and sentencing. In most instances, they have all the power, because most criminal defendants end up taking a plea instead of going to trial. However, it is often argued that there are insufficient mechanisms which hold prosecutors accountable for instances when prosecutorial ambitions drive them to obtain a conviction against an innocent person. In addition, prosecutorial misconduct may result in a criminal defendant failing to receive the safeguards of a fair trial – a right that all American citizens are entitled to – whether they committed the crime or not.

First, it is important to understand how prosecutor misconduct is regulated. Each state enacts its own ethical rules of responsibilities for the lawyers in that state. All states have separate ethical rules that prosecutors must abide by. One of those rules is based on a very important Supreme Court case called Brady v. Maryland. In Brady, the prosecution failed to turn over statements from Brady’s co-defendant that had exculpatory value. In other words, the prosecution pursued a conviction against Brady even though it had knowledge that Brady may not have committed the crime, and hid that information from the defense. As a result of that case, prosecutors are now required to turn favorable evidence over to defense counsel.

Most states have rules that are even stricter than Brady – but all prosecutors are at least held to the Brady standard, requiring “material evidence” of guilt to be handed over to the defense. The problem here is that the definition of “material” is left to the discretion of the prosecutor. In other words, the prosecutor may withhold the evidence, and later claim it is not material to guilt or innocence.

One huge problem that is applicable only to California is that California is the only state that has not adopted a rule with language similar to Rule 3.8 of the American Bar Association’s special rules of ethics for prosecutors. While California does have separate rules for prosecutors, requiring them to turn over exculpatory information, California has not adopted certain subsections of the rule. Specifically, Rule 3.8(d), (g), and (h) have yet to be adopted by the California rules of ethics. These subsections require the prosecution to make timely disclosure of exculpatory information, to disclose new credible information regarding the defendant’s innocence, and to remedy any convictions that the prosecutor believes are erroneous. Thus, while California rules only hold prosecutors to the Brady standard, all other states have adopted more stringent rules on prosecutors’ duties.

Because prosecutors may not generally be criminally punished for acts done in furtherance of their prosecutorial duties, the only logical way to regulate prosecutor conduct is through rules of ethics. There are rare instances where egregious prosecutorial misconduct may lead to personal liability, but those instances are few and far between. This means that the only punishment prosecutors are likely vulnerable to is state bar discipline. When an attorney is disciplined, the discipline may be public depending on the severity of the violation. However, oftentimes the punishment is not public, and the prosecutor simply receives a slap on the wrist. While the rules of ethics are an arguably effective safeguard, defense counsel in California is the primary safeguard. As an advocate for the defendant, defense counsel should conduct a thorough investigation, ensuring that no evidence is being withheld from the prosecution.

It is critical to retain an experienced criminal defense attorney as soon as possible. The earlier the attorney makes contact with the district attorney, the more likely it is that the case will result in a favorable outcome for the defendant. A good criminal defense attorney will present mitigating circumstances, including the lack of the defendant’s criminal history, as well as highlighting weak points in the prosecution’s case.

DEFENSES  | AVOID JAIL TIME | THEFT CRIMES  | COMMONLY USED TERMS

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

LA SUPERIOR COURT  |  LAPD  |  LA DISTRICT ATTORNEY  |  LA PUBLIC DEFENDER  |  LA LAW LIBRARY    

Whether you’ve watched Cops, or whether you’ve been pulled over for a routine traffic stop, it seems as though a mere instant can transform a routine traffic stop into an investigation based on another crime. However, there is a very important Supreme Court case that addresses this very issue. In Rodriguez v. United States, Rodriguez was pulled over by a K-9 officer for a routine traffic stop. During the stop, the officer asked Rodriguez if he could walk his dog around the vehicle. Rodriguez refused, and the officer detained Rodriguez until another officer arrived. The dog alerted the officers to methamphetamine in the car, and Rodriguez was subsequently indicted on federal drug charges.

When Rodriguez moved to suppress the evidence found against him as an unreasonable delay of a routine traffic stop, the District Court did not agree. The Eighth Circuit appellate court agreed, echoing the District Court’s reasoning that the delay was only a “de minimis” intrusion. In other words, the courts did not believe that the delay was significant enough to impede upon Rodriguez’s rights. When the question reached the Supreme Court, it held that absent reasonable suspicion, police extension of a traffic stop in order to conduct a dog sniff violates the Constitution’s shield against unreasonable seizures.

So what does this mean for the rest of us? It means that police must have reasonable suspicion of a crime to delay a routine traffic stop. A good defense attorney will argue that the evidence against the defendant should not be admitted, because it was obtained in violation of the Supreme Court’s ruling in Rodriguez. When the case gets to court, the prosecutor will likely argue that the officer did have reasonable suspicion to justify detaining the defendant beyond the time necessary to complete the traffic infraction investigation that initiated the stop. While this may seem cut and dry, nothing in the law really is.

While the U.S. Constitution protects unreasonable searches and seizures, a search is only unreasonable if it violates the defendant’s reasonable expectation of privacy. The “reasonable expectation of privacy standard” has been somewhat defined by the Supreme Court as of today. The Supreme Court has previously ruled that police may search your car as long as there is probable cause to believe that the vehicle contains evidence of a crime. This means the police may search any part of your car that may conceal the object of the search. For example, if the police have probable cause to believe that evidence is contained in a container on the floor of the backseat, they may search that container without a warrant. It is crucial that defendants understand that we all have a much lesser expectation of privacy when it comes to our cars than our homes. This is because most of the car is in plain view, and because a car’s mobility makes it more likely that evidence may be moved. Thus, a person naturally has less expectation of privacy in their car than they do their home by virtue of the car’s mobility and exposure to the public.

A closely related, very recent Supreme Court decision from June 2016 ruled that police may seize evidence from an unconstitutional search if they first discover the suspect has an outstanding arrest warrant. This decision gained a lot of attention, because it means that even those with warrants for simple traffic violations now have fewer rights when it comes to their personal property being subject to a search. The decision resulted in some scathing dissents from the more liberal justices, who say that an unpaid parking ticket should not forgive an officer’s violation of Fourth Amendment rights. While the case is highly controversial, it is now the law, and all defendants should be aware of this major change in Supreme Court precedent.

It is critical to retain an experienced criminal defense attorney as soon as possible. The earlier the attorney makes contact with the district attorney, the more likely it is that the case will result in a favorable outcome for the defendant. A good criminal defense attorney will present mitigating circumstances, including the lack of the defendant’s criminal history, as well as highlighting weak points in the prosecution’s case.

DEFENSES  | AVOID JAIL TIME | THEFT CRIMES  | COMMONLY USED TERMS

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

LA SUPERIOR COURT  |  LAPD  |  LA DISTRICT ATTORNEY  |  LA PUBLIC DEFENDER  |  LA LAW LIBRARY 

What is Trespassing?

California Penal Code 602 prohibits anyone from entering or remaining on the property of another without permission to do so. While this law may sound simple, the code sets out several situations that constitute trespass – some of which most people would never guess constitutes the crime of trespass. For example, the property on which the defendant enters does not necessarily have to be private property. One may be deemed a trespasser on a restaurant’s property if they enter with for the purpose of creating a disturbance and driving other customers away. While business owners typically run businesses with the implied consent that customers may enter to engage in business, this consent does not extend to those present on the property for the purpose of interfering or obstructing the owner’s business. Similarly, one may be deemed a trespasser for failing to leave a motel after refusing to pay, and refusing to leave a public building during hours when it is closed to the public. This means that someone may enter property with consent, but once consent no longer exists, or if the defendant has exceeded the consent of the property owner, then a trespassing has occurred.

What If I Get Charged With Trespassing?

Trespassing is usually charged as a misdemeanor in California, and may carry penalties of up to six months in jail and a fine not exceeding $1,000. However, there are times in which a prosecutor may file the trespass charge as a felony – also known as aggravated trespass. Aggravated trespass occurs when the defendant is present on the property after threatening to physically injure someone. For example, if a defendant threatens to harm her boyfriend, and then shows up at his place or work or his home, then she may be charged with aggravated trespass. Aggravated trespass carries a jail sentence of 16 months to three years.


Aggravated Trespass

In order to be convicted of aggravated trespass, the prosecutor must prove beyond a reasonable doubt the following elements: (1) the defendant made a credible threat to cause serious bodily injury to another person; (2) the defendant made the threat with the intent to place the other person in reasonable fear for their safety or the safety of a family member; and (3) within 30 days of making the threat, the defendant entered the person’s residence or workplace without a lawful purpose and with the intent to carry out the threat.

Defenses to aggravated trespass include attacking the elements necessary for a conviction. A good defense attorney will argue that the alleged threat was not credible, that the defendant lacked the necessary intent to the place the other person in reasonable fear for their safety, and that the defendant did not enter the property with the intent to carry out the threat. It is critical to obtain an attorney as quickly as possible in order to assert these defenses and any mitigating circumstances before charges are even filed.

Defenses to Trespass

The defenses to trespass may be used to reduce a sentence or to get the case thrown out entirely. Some of the arguments a good defense attorney will make include: the defendant had the right to be on the property; the defendant had consent to be on the property; or that there were no signs to put people on notice that the property was private. For those accused of entering a business with the intent to obstruct or interfere with business activities, defense counsel may argue that the defendant did not actually obstruct or interfere (mitigating circumstance).

NOTE:  PC 602, because it doesn't "look bad" on a criminal background check is often plead down from other cases.  This is especially common where a crime has an embarrassing connotation as charged, for example:  shoplifting, prostitution/solicitation, and more.

It is critical to retain an experienced criminal defense attorney as soon as possible. The earlier the attorney makes contact with the district attorney, the more likely it is that the case will result in a favorable outcome for the defendant. A good criminal defense attorney will present mitigating circumstances, including the lack of the defendant’s criminal history, as well as highlighting weak points in the prosecution’s case.

DEFENSES  | AVOID JAIL TIME | THEFT CRIMES  | COMMONLY USED TERMS

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

LA SUPERIOR COURT  |  LAPD  |  LA DISTRICT ATTORNEY  |  LA PUBLIC DEFENDER  |  LA LAW LIBRARY  

Evidence Tampering and Destruction

Criminal defendants and those involved in a crime often feel helpless and desperate when the cards are stacked against them. Sometimes these feelings lead to the destruction or tampering with evidence. Under California law, “evidence” means not only physical objects that may be used in a legal proceeding, but also digital files and recordings that are relevant in determining the outcome of the case. Evidence tampering is considered a serious crime in California, because the justice system relies heavily on physical evidence. Planting or tampering with evidence can be prosecuted under California Penal Code 141. In order for the prosecution to secure a conviction under PC 141, she must prove beyond a reasonable doubt that:

The defendant intentionally planted or tampered with evidence
The defendant knew he or she planted or tampered with evidence
The defendant did so with either the intent to implicate someone in a crime, or that the evidence would be falsely interpreted as true in a legal proceeding.

The second part of the third prong means that a defendant may be convicted of evidence tampering regardless of motive. As long as the defendant tampers with the evidence for the purpose of presenting it as true in a legal proceeding, the third element will be met. Activities like hiding, moving, and manufacturing evidence all fall under this violation. Penal Code 141 is typically filed as a misdemeanor, and is punishable by up to six months in jail and/or a fine of up to $1,000.

Defenses (Common Defenses to Crimes)

Mistake
Because the prosecutor has to prove beyond a reasonable doubt that the defendant acted with intent (willfully or knowingly), mistake of fact can be a powerful defense to an allegation of evidence planting or tampering. A good defense attorney will show that the mistake was reasonable, and that the mistake directly negates the requisite mental state for a PC 141 conviction. In addition, because the second prong of the third element requires that the defendant intended the evidence to falsely be interpreted as true in a legal proceeding, a good defense attorney will argue the defendant did not intend for the evidence to be used in a legal proceeding at all.

False Accusations
False accusations are actually common in this PC 141 charges. A good defense attorney will explore the additional evidence available that might uncover motive for someone to falsely accuse the defendant of planting or tampering with evidence.  In evidence tampering or destruction cases, a police officer may falsify their statement in order to cover up for a lack of evidence (e.g. "I saw him dump out the bag containing only residue").

Similar Offenses

There are several related offenses. It is common for a prosecutor to charge the defendant with several related offenses, and then negotiate with the defense attorney to drop some of the charges depending on the strength of the evidence. The similar, related offenses are subject to the same defenses as PC 141.

PC 132: Offering false evidence
Under Penal Code 132, it is against the law to present fake, forged, or incorrectly dated written evidence in any kind of legal trial or proceeding. However, unlike PC 141, PC 132 is a felony – punishable by up to three years in prison.

PC 134: Preparing false evidence
Under PC 134, preparing false evidence with the intent to present it in a legal proceeding is against the law, regardless of whether or not the evidence is actually presented in any legal proceeding. This violation is also a felony, punishable up to three years in prison.

PC 135: Destroying evidence
Under PC 135, intentionally destroying or hiding evidence that the defendant knows will be used in a legal proceeding is a misdemeanor. This crime is punishable by up to six months in jail and/or up to $1,000 in fines.

PC 118: Perjury
Under PC 188, perjury is a felony. Perjury occurs when a witness or defendant willfully testifies falsely under oath. Perjury is often charged with one of the above crimes, as planting, tampering, offering, and preparing false evidence often coincide with perjury. Perjury is punishable by up to four years in jail.

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

LA SUPERIOR COURT  |  LAPD  |  LA DISTRICT ATTORNEY  |  LA PUBLIC DEFENDER  |  LA LAW LIBRARY

What is Elder Abuse?

California law (penal code 368) defines elder abuse as “neglect, exploitation, or painful or harmful mistreatment of anyone who is 65 or older.” For example, a caregiver or family member deliberately withholding medication from an elderly individual would constitute punishable neglect under penal code 368. Elderly abuse may involve physical violence, psychological mistreatment, isolation, abandonment abduction, or false imprisonment. In addition, elder abuse includes the unlawful taking of a senior’s money or property.

A caregiver in custody of an elderly individual is required to use the degree of care that a reasonable person in the same situation would have used. This standard includes: assisting the elder in personal hygiene and the provision of food, clothing and shelter; providing medical care for physical and mental health needs; protecting the elder from health and safety hazards; and preventing malnutrition and dehydration. Even if the caregiver is not the only contributing factor to the elder’s harm, she will be found liable for the harm if her conduct was a substantial factor in causing the harm.

Who is Responsible for Reporting Elder Abuse?

In some cases, one may be under a duty to report suspected elder abuse. Those who are responsible for an elderly individual’s care must report suspected abuse – whether that person is being paid to care for the elderly or not. This duty to report is also applicable to licensed staff and facilities caring for the elderly, as well as health practitioners, police officers, and clergy members. Those who are under a duty to report such abuse may actually face criminal charges for failing to report suspected elder abuse. Finally, to prevent financial exploitation of the elderly, officers and employees of financial institutions are under a duty to report suspected financial elder abuse, and failure to do so may result in civil penalties.

What Are the Applicable California Laws on Elder Abuse?

Penal code 368 is considered a wobbler. This means that it may be prosecuted as either a misdemeanor or a felony depending on mitigating or aggravating circumstances, as well as the facts of the case. In cases where the elder abuse is deliberate, egregious, or malicious – the district attorney is more likely to file the violation as a felony. Malice will be found when a defendant acts with the intent to cause injury, or when the conduct is despicable and carried out with a knowing and willful disregard of the elder’s rights or safety.

As a misdemeanor, elder abuse carries a penalty of up to one year in jail, along with some hefty fines (thousands of dollars). If it is prosecuted as a felony, the conviction carries a punishment of two to four years in state prison. Other important facts in determining whether the defendant is charged with a misdemeanor or a felony is the defendant’s criminal history, and how early the defendant obtains representation. Hiring an attorney to take prompt action in contacting the district attorney with mitigating circumstances can greatly reduce the defendant’s chances of being convicted of a felony versus a misdemeanor.

Defenses to Penal Code 368
(Common Defenses)

Unfortunately, it is not uncommon for people to falsely accused of elder abuse. It is crucial to obtain an attorney with experience in this field of criminal law. Early attorney intervention may reduce the charges from a felony to misdemeanor, or even to an infraction or dismissal. While false accusations may be the result of familial tension, false accusations may also come from elders who may suffer from cognitive diseases. Finally, because those who are under a duty to report elder abuse may face personal liability by failing to report, it is likely that reports are filed in good faith, but without merit. Those under a duty to report are likely to report anything that may remotely indicate elder abuse. This becomes a problem when elders suffer from conditions that mimic the signs of physical abuse. Many of those who are under a duty to report are unable to distinguish the difference between actual abuse and the underlying medical condition. For these reasons, there are actually several routes in defending against a Penal Code 368 accusation. While the following defenses are not exhaustive, they are some of the more common defenses used in PC 368 cases.

Mistake
In some cases, the elder is actually abused. However, the defendant being accused of that abuse is not the person who did it. Primary caregivers are often the first to be scrutinized in elder abuse cases, but being the primary caregiver does not rule out the possibility that another person may be responsible. In addition, it is not uncommon for family members to bicker about who will receive the elder’s property upon death. Some family members may go so far as to accuse one family member of abuse in order to preclude any gifts to them once the elder passes away.

Lack of Intent
A conviction under PC 368 requires the defendant act willfully to cause unjustifiable abuse to the elder. If your attorney can prove that you did not act with the requisite mental state, then no conviction may lie under PC 368.

Wrongful Accusation
As discussed above, wrongful accusations under PC 368 are common. Some wrongful accusations are in good faith by those under a duty to report – while others are made in bad faith to harass or preclude the defendant from receiving any of the elder’s estate. A good defense attorney will explore this common defense.

Self Defense
Self defense is available when a defendant reasonably believes that self defense is necessary to protect himself or another from harm. The self defense must be reasonable and proportionate to the threatened harm. This defense is common in situations where an elder has a condition that makes them confused and physically aggressive. If the defendant believes that the force was necessary to prevent harm to himself or another, and no more force than necessary was used – this is likely to be a successful defense to a PC 368 charge.

Insufficient Evidence
Finally, somewhat of a “catch-all” defense is simply that the prosecutor has insufficient evidence to carry its burden of “beyond a reasonable doubt.” This defense will likely be most relevant in the very early stages. This is another reason to obtain counsel early on. If defense counsel can highlight the fact that the prosecutor has insufficient evidence to proceed, the prosecutor may decide not to pursue the charges at all. In addition, a good defense attorney may also use this defense to negotiate a favorable plea.

CHILD ENDANGERMENT & ABUSE | FRAUD |VIOLENT CRIMES | THEFT CRIMES

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

LA SUPERIOR COURT  |  LAPD  |  LA DISTRICT ATTORNEY  |  LA PUBLIC DEFENDER  |  LA LAW LIBRARY

Writing my thoughts on this issue is very, very long overdue.  I have previously addressed the effects of police misconduct on a criminal case, and the disgusting racial disparity in US incarceration, but this article addresses an issue that I fear is in jeopardy of being brushed under the rug yet again.  In her recent convention speech, Democratic Presidential Nominee Hillary Clinton repeatedly lauded the bravery of police officers and specifically referenced the tragic killing of police officers in Dallas, TX, but did not address the epidemic of police violence against (often unarmed and innocent) Black and Latino men.  Meanwhile, President Barack Obama was heavily criticized and accused of being divisive for acknowledging that society and government assign a lower value to Black lives.  What is clear, is that we absolutely must do something NOW to address the devaluation in our government and society of the lives and liberty of people of color.

African-Americans are the only group of people whose fight for equality began with a fight to even be considered human.  The fight for Black America's rights to life, liberty and property is unlike any other in the history of the world.  Liberty was understood by the framers and founders as liberty from oppressive government.  For those stolen from their homeland and enslaved, Liberty meant not being enslaved, beaten, bought, sold, separated from their identity, culture, family and humanity.  Early settlers from Europe fought for their Property rights in the sense of being able to own land, and be represented in government in exchange for taxation.  For African-Americans, the right not to be property was subservient to the slave master's right to own another human being, as property.  Movements for Black life, liberty and property started so behind others' struggles for the same that those unaffected can see only the progress, and not the continued injustice and immense racial disparity.  Our framers and founders' fight risked Life to travel to the New World, but chose to do so.  African-Americans' lives were taken each and every time they considered that they might have a right to ANY Liberty, let alone Property or a Pursuit of Happiness.

Though slavery and lynching may no longer exist, the devaluation of Black lives and liberty is still pervasive in our government, culture and society.  Mass incarceration continues to destroy lives and families, yet this bigoted nation is convinced that same-sex marriage is the evil that must be thwarted in order to protect family values.  If white people were being denied their Constitutional protections, arrested and disproportionately punished for the same crimes, there would not be an issue of recognizing that there is a problem.  If police "feared for their safety" and used violence and lethal force against white men at a greater rate, comprehensive change would have occurred long ago.  America's dark history makes the tragic deaths of Alton Sterling, Philando Castile, Michael Brown, Tamir Rice, Sandra Bland, Eric Garner and so many more, seems less significant by comparison.  This is why a #BlackLivesMatter movement shouldn't be necessary, but is.  Just like an abolition movement should never have been necessary, but certainly was.  The reality is that in 2015 alone, US police killed more than 100 black people.  Unarmed black people were killed at 5 times the rate of unarmed white people during encounters with police.

Too many Americans reject the #BlackLivesMatter message out of deliberate ignorance.  They simply will not hear it.  Many (unjustly) feel attacked or as if they are being blamed.  It does not matter who is to blame.  There is a systemic devaluation of Black lives and liberty and we (all) must address it.  The responsive movements (All Lives Matter, Blue Lives Matter) are deeply misguided.  First, highlighting a serious social issue does not, directly or indirectly, suggest that other problems do not exist.  As a nation unlike any other in human history, the US is riddled with social and economic issues.  From drug addiction, unemployment/outsourcing, to unequal treatment of different cognizable groups of people, this nation's imperfections are well documented.  Among these problems, and of great significance, is that historic white supremacy continues to threaten the lives of Black Americans.  Black parents want to feel, and deserve to feel, that their children are safe when they leave the home.  A Black man in America should not be risking his life by getting behind the wheel of a car, or lawfully carrying a weapon.  These are rights and privileges that white people enjoy without the same risks.  We must all fight to ensure that Black Lives Matter.  No other movement is accused of insensitivity towards other issues.  No other movement is neutralized by simply pointing out that it isn't the only problem.   This is because of the historic, systemic and continued devaluation of black lives and Liberty.  Many groups have experienced and continue to experience discrimination and strife.  This is not a justification for the continued killing of Black Americans going unaddressed by out policy-makers.

The Black Lives Matter movement's issue runs so much deeper than the actions of some police officers. But, we do bandage wounds.  Police recruiting, training and accountability are a problem.  Applicants with a strong racial bias are unfit to police communities.  Though certainly not all police officers are racists, there have been many instances of racists being drawn to the profession.  Racism need not be as overt as membership in hate groups to pose problematic for armed law enforcement officers.  If a police officer is more likely to "fear for their safety" during an encounter with a person of color, that officer cannot be armed by the state and unleashed on our society.  Officers must be trained to de-escalate situations.  They can control a situation without instilling the fear that produces unpredictable responses.  Police in the US are all too often under-trained in the use of force, both lethal and non-lethal, and do not receive enough training in maintaining control of a situation without violence and threats of violence.  In addition to improved training, police must be held accountable for unwarranted use of force, especially cases in which a human life is lost.  Too often, police involved in fatal encounters with unarmed civilians do not face any discipline or criminal charges.  Often, they are permitted to continue to work as police officers.  With improved hiring practices, training and accountability, police departments will protect their officers from being placed in situations where they may use force out of fear, and will not provide a safe-haven for violence against citizens, which happens to disproportionately to the Black and Latino communities in America.  Our militarized police forces cause too much collateral damage.  If they were killing white people at the rates they kill people in the Black and Latino communities, action would have been taken long ago.

Police violence against citizens is not the only of the symptoms resulting from the disease of a racist devaluation of Black lives.  Another example is that the murder solve rate, conviction rate, and death penalty rate are all lower in murder cases where the victim was Black.  Our government pursues murder cases more aggressively when the the victim is white, displaying a greater .  As a criminal defense attorney, I frequently see cases that are charged more seriously, and offers that involve longer sentences in cases where the defendant is a person of color.  I most recently encountered this devastating reality in a fake ID case that was charged as a felony for a black client with no criminal history; meanwhile, USC students are routinely offered a diversion program, an infraction, or at worst a misdemeanor.  Incarceration rates confirm these observations.  Bill O'Reilly's recent response to Michelle Obama's heartfelt comments on waking up in the morning in a house built by slaves (Mr. O'Reilly felt it necessary to point out in response to the First Lady's comment that the slaves were "well fed.") speaks for a sentiment still very present in our society, that the suffering of Black Americans is simply not worth talking about.  The desire to avoid the conversation, and to pretend or assert that no problem exists is the first obstacle to real change. 

No longer can we let let anyone stand in the way or delay progress in this area.  Lives, lives that matter very much, are at stake.

ABOUT THE AUTHOR
Nicholas Loncar is a Criminal Defense Attorney in Los Angeles, CA.  A passionate, aggressive advocate for criminal defendants, Nicholas is deeply dedicated to achieving great results for clients and promoting progressive change in a flawed justice system.  MORE