Attempted murder and aggravated assault – can they charge both?

Why does the District Attorney charge both attempted murder and assault with a deadly weapon?

Can you be charged with both crimes even though it was one event?  Yes, you can be charged with both. The prosecutor will often charge a situation they believe to be attempted murder with the related offense of aggravated assault. Why? Because the crime of attempted murder requires a specific intent to kill and the aggravated assault is a “general intent” crime.


Attempted murder (Penal Code section 664/187)

In order to prove the crime of attempted murder, the prosecution must prove beyond a reasonable doubt that first, there was an intent to kill.  If the specific intent to kill was not present, then it cannot be attempted murder.  How do they try to prove this?  If the defendant said something during the incident or afterwards to the police about their intent, obviously that would be the DA’s evidence of intent.  They can try to prove it based on circumstantial evidence as well.  They may believe that certain actions can only mean one thing – an intent to kill.  Obviously, actions can be interpreted many ways, so it’s not necessarily that there was an intent to kill based on the facts.  So why charge the other crime of aggravated assault? If this went all the way to trial and the jury did not find that there was an intent to kill, they could still convict on the aggravated assault charge.

Aggravated assault (or assault with a deadly weapon) – Penal Code 245

Assault with a deadly weapon is a “general intent” crime.  That means that the person accused doesn’t have to specifically intend any injury, death or other outcome.  A general intent crime is committed if the person willfully (meaning not accidentally) does an act that is against the law.  In this case, assault with a deadly weapon requires that the person do something (an assault) and with a deadly weapon.  Those are the two elements – no specific intent for any particular outcome is required.

Other times, it’s charged that way so there is a lower crime that they can use in plea negotiations… dismiss the attempted murder in exchange for a plea to the aggravated assault.

Is your case overcharged? I can’t say based just on how it’s charged.  After a discussion of the facts and a thorough review of all the reports, witness statements and evidence in the case, we’ll be in a better position to assess the strengths and weaknesses of the prosecution’s case… along with any defenses like self defense.  If this is your situation or you’re researching for somebody you know that’s facing these serious charges in Orange County, contact me so we can discuss how to defend this case for the best possible outcome.

Joe Dane, Orange County Criminal Defense Attorney

Call or text:  714.532.3600


What can’t I bail them out of jail? Orange County criminal “no bail” holds

Questions about posting bail?

Recently, I was asked why a person couldn’t be bailed out of jail.  The follow-up question was, “I thought you were innocent until proven guilty?”


You’re right – there is the presumption of innocence in almost every aspect of criminal law, but when it comes to setting bail, the judge considers the charges to be true.

Even with no prior criminal history, a person may not be able to post bail.  With a criminal history, other reasons may exist.

How is bail set?

The number one priority listed in the Penal Code is the safety of the public. (See Penal Code 1275) Most people think it’s to make sure somebody shows up to court. True, that’s a component, but public safety is the primary purpose of bail.  Of course, if a person has a long criminal history, especially a history of failing to appear (FTA) in court, that can increase the bail the judge sets.

Only a few situations exist where somebody can be denied bail. Capital murder, for example is a “no bail” situation. If the person is alleged to have violated their felony probation, they can be held “no bail” as well. Other times, bail is set, but there can be a hold where the person cannot post the bail and get out. Under Penal Code 1275.1, there can be a requirement that before posting bail a person must prove that the source of the money to be used to post bail comes from legitimate sources. For example, under the law a person shouldn’t be able to rob a bank and then use the stolen money to post bail. Same thing with certain other cash-based offenses (drug cases, pimping and pandering, embezzlement, etc.).

Then there are “holds”. If a person was on parole at the time of an offense, they can be held on a parole hold and cannot be bailed out. Similarly, if there is an immigration hold or a hold from another county for another case, that can lead to an inability to post bail.

So yes, a person is entitled to bail. The specific charges, allegations and entire situation must be assessed.  But a defendant is entitled to reasonable bail and is entitled to a bail review by a judge to determine what the true amount of the bail should be… or if they should even be required to post bail at all.

To discuss your Orange County criminal matter – or to discuss how to bail somebody out of jail if possible, contact me –

Call or text:  714.532.3600


Joe Dane, Orange County Criminal Defense Attorney

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