I got caught shoplifting and got a letter to pay hundreds of dollars. Now what?

Caught shoplifting and now you get a letter from a lawyer demanding hundreds of dollars.  Does that mean that you’re facing criminal charges?  If you pay their demand, does it stop charges from being filed?  What about if you ignore the letter? Does that mean they will then file criminal charges or call the police?

A “Civil Demand” letter means nothing.

Here’s an overview of what “normally” happens.

First, you’re caught by the store personnel. They then have a choice – document this and let you go or call the police. Although it can happen later – they could call the police to report the incident days, weeks or even months later, typically if they don’t call the police on the day that they apprehend you, then there will not be any criminal case.

Next – the civil demand letter…. Whether or not the loss prevention officer called the police at the time, they can make a “demand” for up to $500 as civil “damages”. That letter often arrives within a week or so. The law firms that send out those letters are hoping to strike quickly so that you’ll pay – either out of fear, shock, or hoping that it makes any criminal case go away. Can they send the letter much later? Sure. It’s just not typical.

And if there are criminal charges filed, it is completely separate from any civil demand letter sent by the store or their lawyer. If you were contacted by the police and issued a citation to appear in court, then the date on the ticket is when you have to appear. If the DA’s office (or City Attorney’s office in some areas) has filed charges against you by then, that court date is your arraignment. If they have not filed charges by your citation date, but they decide to file later (which often happens due to a backlog of cases), then they will typically send you a letter to appear in court on a particular date.

But the civil demand and arrest/arraignment letters and the two processes are totally separate. If you choose to ignore the civil demand (which most attorneys suggest), make sure you’re not ignoring an arraignment letter indicating criminal charges have been filed.

If this is an Orange County situation and you need clarification, shoot me a quick email and I’ll see how I can help.  If you have in fact been arrested or cited for shoplifting or petty theft, send me an email or give me a call so we can discuss representation in court.  A theft conviction isn’t anything you want on your record if we can avoid it.

Joe Dane



What is the difference between ESS and ISS sentence? Execution suspended and Imposition suspended?

In a felony sentencing, what do the terms ESS and ISS mean?  What’s the difference?

Felony sentencing overview:

The first question that the sentencing judge must make is whether to grant or deny probation.  In most felony charges, there is a three-level or triad of sentences that can be imposed.  For example, many felonies carry as potential punishment 16 months, 2 years or 3 years in custody.  Those used to be the possible prison terms, but with a change in the laws a couple of years ago, that could be either prison time or time served in county jail.  But before getting to which of those three possible sentences to impose, the first question is whether or not to give the defendant probation.


Probation is a period of supervision under certain terms and conditions that the defendant must follow.  If they are found in violation of any of the terms of probation imposed, they can be brought back before the court and if found to be in violation, they can get any or all of the maximum sentence on the charges they were convicted of.  Just exactly what the risk is and what can be imposed is the huge difference between an ESS and an ISS sentence.

ISS (Imposition of Sentence Suspended)

In the vast majority of felony probation sentences, the judge orders that “Imposition of sentence is suspended” and the defendant is placed on probation for a period of time (typically 3 or 5 years, depending on the charge).  Just because a defendant gets probation and “imposition suspended” doesn’t mean they do no jail time. A defendant can be sentenced up to a year in jail as a term of probation, along with other conditions.  If a defendant is found to have violated their probation, they can then receive additional punishment.  That could be anything from simply revoking and reinstating probation with no additional consequences all the way up to imposing the maximum sentence.  Typically, a first time violation of probation will result in a 30-180 days in jail as a sanction for the violation.  The point is that the judge has a lot of leeway in deciding what punishment (if any) to impose if the defendant violates.

ESS (Execution of Sentence Suspended)

The other way to be sentenced and receive probation is to have an ESS imposed.  At the time of sentencing, the judge would sentence the defendant to ____ years with the execution of that sentence suspended while they are then placed on probation. The other term for an ESS is a “joint suspended” sentence – the prison (or joint) sentence is suspended during the time of probation.  The defendant could still be ordered to serve up to a year in county jail and have other terms imposed.  The difference is that if there a violation, then whatever the sentence imposed was is then ordered.  No slap on the wrist and a few days in jail – you get the sentence that was originally imposed.

An ESS is often referred to as a “deal with the devil.”  It avoids an initial sentence of a much longer time, but if there is any violation, there’s no wiggle room.  Of course, if you can make it through probation without any violations, then the threat of that suspended sentence goes away when probation ends.

Joe Dane



Full DUI blitz underway in Orange County

DUI Checkpoints and Saturation patrols in Orange County now until Labor Day

The Orange County Sheriff’s Department announced today that a “full force” DUI task force will be underway from now, September 21, 2015 through Labor Day (September 7, 2015).  There will be a DUI checkpoint tonight, but the location has not yet been disclosed.  The California Highway Patrol (CHP) will also be deploying all available officers for a full saturation patrol.

They are calling this a “zero tolerance” operation and are labeling it “Drive Sober or Get Pulled Over.”


What to do if you get pulled over for DUI

You have rights, both during a DUI checkpoint or if you’re pulled over for any reason.  I’ve written a detailed article featured on the Forbes website that you can read here:  What to do if you get pulled over for Drunk Driving in California

Should you be pulled over, you have the right to remain silent, even though they don’t read you your Miranda rights.  Questions about drinking can only hurt you.  Politely but firmly decline to answer their questions.  Same thing for the field sobriety tests – it is not mandatory that you comply with their request for you to perform these maneuvers.  The field breathalyzer (also known as the Preliminary Alcohol Screening or PAS device) is also optional unless you’re under 21 or currently on probation for DUI.

If you are arrested for DUI

You only have 10 days to request a hearing with the DMV or they will automatically suspend your license.  To preserve your right to drive and to begin fighting your case, give me a call so we can discuss what happened and contact the DMV within that 10 days.

Be safe and remember your rights.


Joe Dane, Orange County Defense Attorney



Shoplifting and Theft Defenses

Arrested for shoplifting?  What do you do if you didn’t mean to steal?


Please click to play the audio:




Hi – This is Orange County Defense attorney Joe Dane. I’ve posted many articles, podcasts and videos about theft and shoplifting allegations, but today, I’m going to talk specifically about defenses to shoplifting charges.

First, all theft crimes require a specific intent. By that, I mean that the prosecution must prove that you had a certain specific intent at the time you took the property. They must be able to prove beyond a reasonable doubt that you intended to steal the merchandise.

That leads me to a first possible defense – accident.

Things happen. Your kids distract you…. you’re on your cell phone… you’ve got your arms full of items you’re considering – some you want, some to return… Any number of scenarios could distract you to the point you don’t realize you’ve got merchandise you haven’t paid for as you step out. Many stores – but not all – have surveillance videos throughout the store and especially at the entrances. Assuming the police book the video into evidence, we are entitled to get a copy to try and show that this was an accident.

In a theft case, there must be taking of property with that intent I was just talking about and there must be a “carrying away” or “taking”. That means that they must prove that you did in fact have the intent to steal and you actually gained control of that property. Typically, the store personnel will stop you once you’ve exited the store. They assume that once you’ve stepped out of the store, there is no intention to pay for the things you have with you.

But… there are some situations where that doesn’t apply. Some stores have outdoor garden departments that still also have cash registers where you can pay for merchandise. I remember one case I had from a large department store in a mall – just outside the store in the mall was an escalator. My client had some clothing and wanted to go downstairs to continue shopping. She saw the escalator and without a second thought, walked out into the mall to take the escalator downstairs and back into the same department store. Once I pointed this out to the DA – and the video from the store showed that she wasn’t looking around suspiciously as she exited or anything – the case was dismissed. We were able to show the prosecutor that my client had absolutely no intent to steal and this was an honest mistake.

If you have been arrested for shoplifting or petty theft in Orange County, give me a call. Let’s discuss your case and see what defenses or other options you may have to try and avoid a conviction for theft. My phone number is 714 532 3600 and you can reach me by email at joe@joedane.com.

There are some additional links below to other articles about shoplifting and civil demand letters.




Joe Dane, Orange County Defense Attorney


Shoplifting – Civil Demand Letters

Is Petty Theft a Big Deal?

Shoplifting and Loss Prevention Officers


The police didn’t read me my rights! Now what? Miranda and the law

What happens if the police didn’t read you your rights?  Can your entire case be thrown out or dismissed?


Please click to play audio (approximately 4 minutes):



Transcript of audio:


Hi – it’s Orange County defense attorney Joe Dane.


Today, I’m going to talk about one of the most frequent complaints people have when they get arrested, and that is that “The officer never read them their rights – their Miranda rights” and follow up question is always, “Does this mean my case is gonna be thrown out?”


Well, let’s start off and talk about what the Miranda rights are and what can and can’t happen in your criminal case. First of all, the Miranda rights have been around for years. In 1966, the US Supreme Court came out with the famous Miranda decision which now requires peace officers to give people their rights when they’re arrested and being subject to questioning.


The Miranda rights are actually two different rights. The first is the Fifth Amendment right and that’s your right to remain silent or not become a witness against yourself and the other one is from the Sixth Amendment and that is your right to attorney at all critical stages of the proceedings, including police interrogation. Those are the rights that come from the Constitution and the Miranda warnings (or the Miranda advisement) comes into play if you are in custody and being subject to interrogation. Both of those things at the same time have to exist before the police are required to give you your rights. Both in custody and being questioned.


Custody is the functional equivalent of an arrest or a formal arrest. If they put the cuffs on you and tell you you’re under arrest, there’s no question you’re in custody. The second part is interrogation. They have to be asking you direct questions about the crime you’re suspected of or arrested for for it to be interrogation. Both of those at the same time.


This isn’t like TV or the movies – you’ll see, you know, detectives running down the street chasing after somebody. They’ll tackle them and as they’re putting the handcuffs on, one or the other of the partners will start reading the guy their rights. It’s not like that. In fact, there are many cases where the Miranda rights never come into play because after arrest, the individual is never questioned about the crime.

It’s if you’re arrested and being questioned – that’s when they have to give Miranda rights.


The most important thing about that though, is when Miranda rights are not required to be given. If you’re not in custody, they don’t have to give your rights. The best example of not being in custody but being temporarily detained is like a traffic stop. If the police pull you over for whatever violation and they start questioning you and let’s say they smell alcohol, for example. If they ask you questions like, “Have you been drinking?” If you say yes, you have absolutely incriminated yourself under the Fifth Amendment. But because you’re only being detained and you’re not formally arrested at that point, they don’t have to read you your rights and that statement that you make out on the side of the road is perfectly admissible against you. That applies to just about every sort of police investigation. If they are just doing general investigation questions of you but you’re not formally “in custody,” Miranda rights don’t come into play.


If there is a Miranda violation, for example you were in custody and you were being interrogated but the police didn’t read your rights; or if the Miranda rights weren’t given properly, or the waivers weren’t correct or something like that, what’s the remedy? I know a lot of people think that the entire case thrown out, but that’s not the situation. The remedy, if there is a Miranda violation, is the statement that’s taken in violation of Miranda is excluded. It’s not excluded necessarily for all purposes, but the prosecution can’t use it in their case against you to try and convict you.


Miranda situations, like many aspects the law, are very fact-dependent though – whether or not you are actually in custody… whether or not the way the police ask you questions or read you your rights was proper… whether the statement itself is coercive… the entire context has to be reviewed. If you have been arrested here in Orange County and you want to talk about your case, give me a call my phone number is 714) 532-3600 or send me an email: joe@joedane.com. The links are below.


Joe Dane, Orange County Defense Attorney