January 17, 2013

What are the changes in the Three  Strikes law after the recent election?

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Essentially, the change to the three strikes law requires that the new case is a serious or violent felony before a life sentence is imposed.  For example, under the old law, if a person had two strikes for two residential burglary convictions, any new felony could subject them to a 25-life sentence. Even a simple possession of drug charge could get them a life sentence. Originally, the judge could not do anything and had to impose 25-life for any new felony if the defendant had 2 prior strikes. Then, a case [People v. Superior Court (Romero) (1996) 13 Cal.4th 497] decided that a judge could exercise their discretion to not give a 25-life sentence. Essentially, they could “strike a strike” for the purpose of sentencing and get around the 25-life sentence. It was discretionary and they could still impose the life term, even if the new offense wasn’t serious or violent.
The changes in the law for Prop 36 are now in Penal Code 1170.126. The full text is at the bottom of this post.

Some important concepts about the three strikes law

First – not every prior felony conviction is a strike. Only serious and violent felonies are. Violent offenses are listed here:

And serious offenses are listed here:

If an inmate has been sentenced to 25 to life on a felony after having 2 prior strikes, they can petition for resentencing if:  (I’m summarizing)
Their prior strike crimes are not one of the listed sex offenses, solicitation to commit murder, assault with an automatic weapon on a peace officer, homicide (including attempted murder) and;
Their current offense is not itself a strike.

If the inmate qualifies, they get a hearing in front of a judge.

The resentence is not automatic just because they are doing 25-life on a non-serious, non-violent offense. That just qualifies them for a hearing. At that hearing, the judge can still leave the original sentence in place if they feel the defendant poses an “unreasonable risk of danger to public safety”.  They can look at things like the defendant’s entire criminal history, how serious the underlying strikes were, whether or not the defendant has been involved in any disciplinary actions while incarcerated, etc.
These cases are just now starting to come thought the court system. If an inmate qualifies for resentencing, the judge will hold a hearing.  Typically, the DA will obtain the inmate’s file from prison as part of the evaluation.  The prosecution is looking for any rules violations or instances of criminal (particularly violent) activity while in prison.  The defense can present evidence of rehabilitation, such as education, training and counseling the inmate has participated in while in state prison.
If the judge feels a defendant is not a risk, they resentence them as though they only had one prior strike. With one strike, it doubles your sentence, plus any additional terms for things like prison priors, etc.

Example:

For example, auto theft carries a maximum of 3 years in prison. With one prior strike, it doubles for a maximum of 6 years. If a defendant was  sentenced to 25-life in 1999, he would now have served 13 years. If he is resentenced, he will have served way beyond the maximum he could have served, plus an additional 3 years he would have been on parole. If resentencing is granted, he should be released free and clear.
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714.532.3600
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Full text of California Penal Code 1170.126 (the Three Strikes resentencing law)

1170.126.  (a) The resentencing provisions under this section and
related statutes are intended to apply exclusively to persons
presently serving an indeterminate term of imprisonment pursuant to
paragraph (2) of subdivision (e) of Section 667 or paragraph (2) of
subdivision (c) of Section 1170.12, whose sentence under this act
would not have been an indeterminate life sentence.
   (b) Any person serving an indeterminate term of life imprisonment
imposed pursuant to paragraph (2) of subdivision (e) of Section 667
or paragraph (2) of subdivision (c) of Section 1170.12 upon
conviction, whether by trial or plea, of a felony or felonies that
are not defined as serious and/or violent felonies by subdivision (c)
of Section 667.5 or subdivision (c) of Section 1192.7, may file a
petition for a recall of sentence, within two years after the
effective date of the act that added this section or at a later date
upon a showing of good cause, before the trial court that entered the
judgment of conviction in his or her case, to request resentencing
in accordance with the provisions of subdivision (e) of Section 667,
and subdivision (c) of Section 1170.12, as those statutes have been
amended by the act that added this section.
   (c) No person who is presently serving a term of imprisonment for
a "second strike" conviction imposed pursuant to paragraph (1) of
subdivision (e) of Section 667 or paragraph (1) of subdivision (c) of
Section 1170.12, shall be eligible for resentencing under the
provisions of this section.
   (d) The petition for a recall of sentence described in subdivision
(b) shall specify all of the currently charged felonies, which
resulted in the sentence under paragraph (2) of subdivision (e) of
Section 667 or paragraph (2) of subdivision (c) of Section 1170.12,
or both, and shall also specify all of the prior convictions alleged
and proved under subdivision (d) of Section 667 and subdivision (b)
of Section 1170.12.
   (e) An inmate is eligible for resentencing if:
   (1) The inmate is serving an indeterminate term of life
imprisonment imposed pursuant to paragraph (2) of subdivision (e) of
Section 667 or subdivision (c) of Section 1170.12 for a conviction of
a felony or felonies that are not defined as serious and/or violent
felonies by subdivision (c) of Section 667.5 or subdivision (c) of
Section 1192.7.
   (2) The inmate's current sentence was not imposed for any of the
offenses appearing in clauses (i) to (iii), inclusive, of
subparagraph (C) of paragraph (2) of subdivision (e) of Section 667
or clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph
(2) of subdivision (c) of Section 1170.12.
   (3) The inmate has no prior convictions for any of the offenses
appearing in clause (iv) of subparagraph (C) of paragraph (2) of
subdivision (e) of Section 667 or clause (iv) of subparagraph (C) of
paragraph (2) of subdivision (c) of Section 1170.12.
   (f) Upon receiving a petition for recall of sentence under this
section, the court shall determine whether the petitioner satisfies
the criteria in subdivision (e). If the petitioner satisfies the
criteria in subdivision (e), the petitioner shall be resentenced
pursuant to paragraph (1) of subdivision (e) of Section 667 and
paragraph (1) of subdivision (c) of Section 1170.12 unless the court,
in its discretion, determines that resentencing the petitioner would
pose an unreasonable risk of danger to public safety.
   (g) In exercising its discretion in subdivision (f), the court may
consider:
   (1) The petitioner's criminal conviction history, including the
type of crimes committed, the extent of injury to victims, the length
of prior prison commitments, and the remoteness of the crimes;
   (2) The petitioner's disciplinary record and record of
rehabilitation while incarcerated; and
   (3) Any other evidence the court, within its discretion,
determines to be relevant in deciding whether a new sentence would
result in an unreasonable risk of danger to public safety.
   (h) Under no circumstances may resentencing under this act result
in the imposition of a term longer than the original sentence.
   (i) Notwithstanding subdivision (b) of Section 977, a defendant
petitioning for resentencing may waive his or her appearance in court
for the resentencing, provided that the accusatory pleading is not
amended at the resentencing, and that no new trial or retrial of the
individual will occur. The waiver shall be in writing and signed by
the defendant.
   (j) If the court that originally sentenced the defendant is not
available to resentence the defendant, the presiding judge shall
designate another judge to rule on the defendant's petition.
   (k) Nothing in this section is intended to diminish or abrogate
any rights or remedies otherwise available to the defendant.
   (l) Nothing in this and related sections is intended to diminish
or abrogate the finality of judgments in any case not falling within
the purview of this act.
   (m) A resentencing hearing ordered under this act shall constitute
a "post-conviction release proceeding" under paragraph (7) of
subdivision (b) of Section 28 of Article I of the California
Constitution (Marsy's Law).
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Negligent Discharge of a Firearm – Penal Code 246.3

December 28, 2012

California has two laws on the books for discharge of a firearm or BB gun in a manner that might cause harm.  Ordinarily, laws are designed to punish for what you have done and not just what might happen.

Negligent Discharge of a Firearm or BB gun

Penal Code section 246.3(a) makes it unlawful to “willfully discharge a firearm in a grossly negligent manner which could result in injury or death to a person.”  It is a “wobbler”, meaning it can be prosecuted as either a felony or a misdemeanor.  As a felony, it carries up to 3 years in custody.  As a misdemeanor, the maximum punishment is one year in county jail.

Definitions:

  • Willful – done deliberately or non-accidentally.
  • Firearm – any device designed to be used as a weapon, from which a projectile is discharged or expelled through a barrel by the force of an explosion or other form of combustion (but NOT by compressed air, compressed gas or by a spring)
  • Grossly negligent manner – it is defined as “more than ordinary carelessness, inattention or a mistake in judgment.  A person acts with “gross negligence” when they act in a reckless way that creates a high risk of death or great bodily injury AND a reasonable person would have known that acting that way would create such a risk.  Essentially, it is acting with disregard for human life or indifference to the consequences of the act.

Discharging a BB gun in the same grossly negligent manner is a misdemeanor and can carry up to a year in county jail.  [Penal Code 246.3(b)]

Defenses:

What are some possible defenses to a charge of negligently discharging a firearm or BB gun?  Built into the crime elements is that the act must be done NOT in self-defense or in the defense of others.  For example, if you were in a situation where your life was in danger and firing a “warning shot” would stop the attack, that could be a complete defense to this charge.  The “defense of others” would apply if you were acting to save somebody else’s life or to prevent them from suffering great bodily injury.

Another defense would be that if a person honestly believed the firearm was unloaded at the time it was shot, they would not have the necessary mental state and would therefore be NOT GUILTY of the crime.  This charge requires that a person willfully (deliberately) fire a gun.  If you didn’t know the gun was loaded, how could you be intentionally meaning to fire it?

Firearms and New Year’s Eve

Every year, in celebration of New Year’s Eve, people fire guns into the ground, into the air or in other ways.  The police are always looking to crack down and catch people firing guns and arrest them for negligent discharge of a firearm.  If they think the evidence shows that the gun was aimed at a building or vehicle, there could be more serious charges filed (Penal Code 246 – Shooting at an inhabited house or occupied motor vehicle).

Joe Dane, Orange County Defense Attorney

info@joedane.com

714.532.3600

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Arrested in Orange County? Now what?

December 23, 2012

First – Should you post bail?

If your loved one has been arrested, the first decision to make is whether or not to post bail.  When a person is booked into jail, the top charge will determine how much the bail should be.  If they are booked through the Orange County Jail, a Detention Release Officer will review the case and can, in some situations, authorize a release on their own recognizance (an “OR” release).  If they aren’t released, bail is set.  There are some offenses that are not eligible for bail.  From the Orange County Bail Schedule, the following are not eligible for bail:

  1. Capital crimes (i.e. murder with special circumstance), when the facts are evident or the presumption great.
  2. Felony offenses involving act of violence on another person when the facts are evident or the presumption great and the court finds based upon clear and convincing evidence that there is a substantial likelihood the person’s release would result in great bodily harm to others; or
  3. Felony offenses when the facts are evident or the presumption great and the court finds based upon clear and convincing evidence that the person has threatened another with great bodily harm and that there is a substantial likelihood that the person would carry out the threat if released.

In cases where bail is set, you can post cash or property sufficient to cover the bail amount or go through a bail bonds company. Bail bond agents typically charge 8 to 10% of the bail amount as their charge to post a bond for the entire bail.  Here is a link to the Orange County Bail Schedule (opens link to PDF file).

Before deciding to posting bail, take a minute to read another post I wrote – “Should I post bail?”

Next – get a lawyer.

In fact, you may want to get a lawyer before making the decision to post bail.  Why?  There may be things I can do to get my clients released without having to post bail and/or reduce the amount of the bail.  Sometimes, that release can be accomplished the same day.  If not, by preparing for the first court date (the “arraignment”), a reduction in bail or an “OR” release can happen.  Yes, it means they stay in jail for a couple of days before going to court, but it may save you thousands of dollars.  If bail is required, I can recommend a bail bond company I know will work quickly and efficiently on behalf of my clients to get them released as soon as possible.

Don’t make a snap decision about which attorney to hire.  Be careful with ones that are in a rush to get you to sign up over the phone right away.  I always wonder how attorneys can quote a fee for representation without knowing anything about the case either.  I always like to find out as much as I can – the facts, my client’s prior record (if any) and any legal issues with the case.  That gives me a better idea what it will take to get the best outcome – and is what I find to be the fairest way to set fees.  For more, see  “How to choose a criminal defense attorney”.

To discuss the case further, give me a call or send an email.

Joe Dane, Orange County Defense Attorney

info@joedane.com

714.532.3600

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DUI Checkpoint tonight in Orange County (December 20, 2012)

December 20, 2012

Checkpoint in Westminster tonight

As previously announced, there will be a DUI and Driver’s License checkpoint tonight in Westminster from 7:00 pm until 3:00 tomorrow morning.  The specific location hasn’t been announced, but you can be pretty sure it will be on a major road.  There are certain procedures the police must follow in setting up a checkpoint, including advance notice, warning signs, “escape routes” for those that are approaching it and don’t want to participate, etc.

Be safe.  Keep your rights in mind.  For more details, see these links:

What to do when pulled over for DUI

DUI and Miranda rights

Passenger’s rights during a DUI stop

Joe Dane, Orange County Defense Attorney

info@joedane.com

714.532.3600

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Arrested for shoplifting? Here are the possible charges

December 19, 2012

There isn’t really one charge of “shoplifting” in the California Penal Code.  There are theft charges and other related crimes on the books.

First – Petty Theft (Penal Code 484 and 488)

In general, theft is defined in Penal Code 484.  From there, theft is classified under a different code section depending on the dollar amount of the property taken, what was taken or how it was taken.  Petty theft )(Penal Code section 488 is theft of anything under $950.  This is the typical “shoplifting” charge.  In order to prove petty theft, the prosecution must prove beyond a reasonable doubt that you “took and carried away” property of someone else without consent and that it was valued at under $950.  [The law used to be under $400, but it's now $950]  Petty theft is a misdemeanor and carries as a maximum punishment six months in county jail and/or a thousand dollar fine.  There can also be probation for up to three years and other court costs and consequences.

Another common shoplifting charge – Burglary (Penal Code section 459)

If the police think that you entered the store with the intent to steal, they can also charge you with burglary.  One of the typical things they look for is whether you had money, credit or debit cards or other ways to pay for the merchandise with you at the time.  If you had no way to pay for the items, they try to argue that you must have intended to steal when you went it since you had no money. They try to make it into a burglary charge if they think you brought something in with the intent to use it to hide merchandise.  Many women get wrongfully accused of burglary since they were carrying an oversized purse or bag.  Why is it a big difference whether or not you’re charged with burglary?  Petty theft is a misdemeanor.  Burglary can be charged either as a felony or a misdemeanor by the prosecutor.  Even as a misdemeanor, it carries a much higher maximum sentence (one year instead of just six months for petty theft). For more information about burglary and the intent required, see this post:  Burglary and intent in a shoplifting case

Grand theft (Penal Code 487)

If the dollar amount of the merchandise was over $950, the charge is most likely going to be grand theft. Grand theft can be charged either as a felony or a misdemeanor.  As a felony, it caries up to 3 years in custody.  As a misdemeanor, it is up to one year in jail.

Possession of burglary tools (Penal Code 466)

Another possible charge that could be filed in a shoplifting case is possession of burglary tools.  In most cases, the “tools” they are referring to are things that are used to break into a building or car, but it can include anything that “is intended to be used in committing a misdemeanor or felony.”  So – a pair of pliers intended to be used as a tool to remove sensor tags from clothing and even possibly nail clippers or a small pocketknife could be charged under this section.  It is a misdemeanor that carries up to six months in county jail.

What to do if you have been arrested for shoplifting or petty theft

The sooner we start working on your defense, the better.  There may be things we discuss that get you in a better position for a good outcome in court.  Our goal is the very best outcome possible.  Do we have legal defenses?  Factual defenses? Can we try for a resolution that doesn’t involve a theft conviction on your record?  All those things are possible.  The only way to know which way your case is headed is to sit down and discuss it in detail.

Civil Demand letters

As one final note – often in shoplifting situations, the store or a law firm on their behalf will issue a “civil demand” letter, asking for hundreds of dollars.  We can discuss that letter and why my recommendation is to not pay their outrageous demands when we meet.

Give me a call or send an email so we can discuss your case.

Joe Dane

info@joedane.com

714.532.3600

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