As if you didn’t have enough to worry about in a DUI case - license suspension, fines, probation, etc. -

Be careful about getting too many “points” on your license.

The DMV assesses a “point” value to traffic offenses.  While most moving violations such as running a stop sign, speeding and things like that are a one point violation, there are a few that can really add up with two points each.  DUI (23152), driving on a suspended license (14601), reckless driving (23103, including a “wet reckless”), hit and run (20001 and 20002) and driving over 100 miles per hour all carry two points if convicted.

Why does this matter?

If you get:

• 4 points in a year
• 6 points in 2 years or
• 8 points in 3 years

the DMV can designate you as a “negligent operator” and suspend your driver’s license.

If you do have a DUI conviction, prior suspended license convictions or several other prior moving violations, be careful.  If you’re charged with any new traffic offense, particularly a two-point one, the stakes just went up for you.

Let me know if you want to discuss your court case and what we may be able to do to avoid a conviction for a charge that could result in too many points on your license.

Joe Dane

info@joedane.com

714.532.3600

A question was recently asked about whether or not store security (a.k.a. “Loss Prevention”) could track somebody if they ran out and got into their car, but were followed.  To make matters potentially worse, loss prevention wanted them to come back into the store.  From there, the details matter.

Can they track you with your license plate?

I hate to say it, but what is described - running away, but being identified through your license plates - does in fact happen often. The only thing is the “if”.

• IF they did get your license plate (and IF they got it correctly);
• IF they called the police
• And IF the police investigate

Then you could face charges. I cannot answer anybody those “if” questions. The concern is the unknown. I’ll throw in a few more “ifs”. If the loss prevention person from the store reports any sort of physical struggle over the property, this could escalate into a robbery charge. If they think you entered the store with the intent to steal, this could turn into a burglary. The reason this matters is both robbery and burglary are felonies, making the police much more likely to investigate. They can also arrest based on probable cause, rather than getting a warrant or sending a letter.

I’m not trying to scare you - just relating the possibilities so you’re prepared. If you are contacted by anyone regarding this, you should NOT make any statements about this without an attorney. Even if you give them your side of the story (it was “only” shoplifting), you have admitted that you’re the person involved and may give them the evidence they need to prosecute you. Keep your mouth shut. Politely, but firmly, ask to speak to a lawyer BEFORE you say anything. Keep repeating that. If the police do show up at your house to chat, you’re not in custody, so they aren’t required to give you your Miranda rights. It doesn’t mean you can’t exercise them though.

You may want to consult with an attorney face to face to discuss the facts further in a confidential setting to assess things. If this is an Orange County case, give me a call so we can set up a time to talk.

Joe Dane

info@joedane.com

714.532.3600

Is there such a thing as a “win-loss” record I can check?

If you’re facing criminal charges of any sort and are looking for an attorney, how do you pick one?  Who is going to represent you in court?  Much like choosing any other professional - doctor, dentist, accountant - there is data and there is your gut.

Often, people want to know about an attorney’s wins and losses.  ”Wins and losses” in the criminal setting is hard to gauge. Every case is unique, so every outcome depends on the facts of the case, what legal and factual defenses are available, etc. Other win/loss data is very subjective.

Having said that, what’s a “win”? Getting charges dismissed on a legal issue? Winning a motion to suppress evidence? Getting a not guilty verdict at trial? A lesser charge? A favorable plea agreement?  Many times, a person is charged with two charges (for example, DUI can have two different charges, but they count as one DUI - see this link for more).  If an attorney gets one of the charges dismissed in exchange for a plea to the other count, their client is still convicted of DUI, but the attorney can technically claim that they got a “DUI charge dismissed.”  True, maybe but not accurate when assessing a win/loss record.  A “win” is the very best outcome you can get, based on the facts, the evidence and the law.

The only way to really assess attorneys is to do what you are doing - online research, backgrounds of their experience, etc. From there though, it’ll take face to face meetings to discuss your case and how the two of you “fit” in a common defense. In your in-person consultations, you can discuss their experience with similar cases, what issues they see and their tentative strategy. Of course, that strategy is always subject to change, depending on how the facts and the case shapes up. When discussing your case with your attorney, pay attention to how they answer your questions.  If they can explain the charges and issues to you, then odds are they can connect to a jury, should your case go to trial.  What legal motions could be run?  How do they analyze a case?

You can drive yourself crazy by overanalyzing things, but once you’ve got it narrowed down to your top 3 or so contenders, start setting up consultations and go from there. There’s something about the intangible feeling you can gain about people when you meet them. Best of luck in the process.

If after reading more about me, you’d like to set up a meeting to discuss your situation, give me a call or send an email.  I’ve found that sitting down face to face is always the best way to discuss your case, so let’s set up a consultation.

Joe Dane

714.532.3600

info@joedane.com

If you were arrested for DUI and contacted the DMV within 10 days to schedule a hearing, they will send you a letter indicating that the suspension is “stayed” pending the outcome of the hearing.

What does that mean?

A “stay” on the suspension means that it is not being imposed at this time.

Ordinarily, if you are arrested for DUI and the police take your license & issue you a temporary license, the DMV will automatically suspend your license if your blood alcohol is over 0.08%.  The way to avoid that (in the short term) is to contact the DMV within 10 days and request a hearing to challenge the suspension.  When you call to schedule your hearing, they will issue a “stay” on the suspension.  If you lose at your hearing, that “stay” is lifted and the suspension then goes into effect.

A “set-aside” would mean that they are not imposing the suspension at all.

If you got a letter indicating the suspension is “stayed,” your license suspension is now on hold, allowing you to drive without any restriction until your DMV hearing is heard and decided.

If you are ever in court and hear cases referred to as being on day “zero of ten” or ” ____ of 10″ - what does that mean?

There are two typical scenarios where the ten days comes into play.

First is for a preliminary hearing on a felony case, but that ten days is ten COURT DAYS, so is typically not referred to as 0/10.  They may say that a case is on “day 3″ or some other day, but criminal lawyers understand that to mean how many court days from the arraignment until the preliminary hearing.

More likely, the scenario is for trial. In a misdemeanor case, you have a right to a trial within 30 calendar days of your arraignment (first appearance in court and not guilty plea) if you’re in custody at the time of arraignment or 45 days if you’re out of custody. As long as your trial begins within those time frames, it’s valid.

On a felony case, you have a right to a trial within 60 calendar days of your arraignment on the information (charging document filed after a preliminary hearing) or indictment (charging document following a grand jury).

On either a felony or misdemeanor, if you go beyond those statutory time frames and waive time for trial, a new date is set for trial. Assuming you haven’t entered a “general time waiver”, your trial must begin on that new date or within 10 calendar days. The date your case is set is “day zero.” The next day is day one and so on. The case must begin on or before the 10th day or you’re entitled to a dismissal of the case.

How do I find out what shows up on my background check?

Many people ask what shows up on their criminal history.  Sometimes, it’s because they were detained by the police, but weren’t sure if they were arrested.  They may have been arrested, but never went to court.  Or - their case was resolved in some way and they want to know exactly what will show up if they go for a background check.

Whatever your reason for wanting to know what’s on your criminal history, you have a right to know.  The California Department of Justice is the agency that maintains criminal histories in California.  They receive entries from law enforcement agencies as well as the courts for their database that eventually ends up on your “rap sheet.”  Those records are not public records, but can be accessed by law enforcement or other agencies.  You can also agree to have your records released (for example, in an employment background check) to a third party.

So what exactly shows up on yours?

Your “rap sheet” contains entries every time there is some sort of interaction with an agency that reports to the Department of Justice.  If you are arrested and booked into jail, when you’re fingerprinted, those records are input into the system by the police when you do the electronic fingerprinting.  That will create an entry indicating the date of the arrest, the agency that arrested you and the charge.  Ultimately, it is supposed to be updated with the resolution - that no case was filed and it is deemed a “detention only” or if there was a case filed in court.  From there, if charges are filed, that will also show up, along with the case number, the court branch and the charge or charges filed against you.

Other things can create entries, too.

If you submit an application to a licensing agency or other organization that requires certification, etc. (such as to be a security guard, real estate agent, teacher, securities agent), an entry will be made indicating that you were an applicant.

How are they linked?

Criminal histories are linked by fingerprints, name, date of birth and social security number as well as an “index number” or CII number.  If you are fingerprinted by live scan (those electronic prints), that incident is guaranteed to be linked to you.  Some incidents, such as an arrest that does not involve being booked, may just link by name.

How do you get a copy of your criminal background?

First, you’ll need a copy of the Department of Justice’s “Live Scan Form” found at the link below.  Take that form to the Police Department, Sheriff’s Department or other authorized Live Scan location (link to list of locations and fees found below).  There will be a fingerprint fee (typically around $20, but I’ve seen them anywhere from $12 to $50) and a $25 processing fee to the Department of Justice.  They will then mail you a copy of your background.  They will also include information about what to do if you find inaccuracies on the report.

Department of Justice - Request your own criminal background

Live Scan Locations and fees

Live Scan request form (PDF)

I hope this helps.  If you find inaccuracies on your report, want to discuss trying to remove items under Penal Code 851.8 with a petition for factual innocence or - if you find an old warrant you didn’t know about, give me a call or send an email.

Joe Dane, Orange County Criminal Defense Attorney

info@joedane.com

714.532.3600

What’s wrong with giving a statement to the police?

If I didn’t do anything wrong, what’s the harm in giving a statement to the police?  Even if somebody doesn’t want to press charges against you after an incident, giving a statement to the police isn’t a good idea.  Why?

Several things…

First, it’s not up to any individual to “press charges” - that is up to the prosecuting agency in the jurisdiction. The case can be forwarded to the DA for review even if the alleged victim doesn’t want to “press charges”.  If the police are investigating, assume it will be sent to the DA for review and the possibility of charges being filed.

Next - even a misdemeanor conviction some harsh consequences. If convicted, there is potential jail time, probation, a conviction on your record indefinitely and other consequences depending on the charges.  Some misdemeanors carry a 10 year ban on firearm possession, restraining orders, mandatory counseling, etc.

Aren’t the police just trying to get my side of things?

Here’s one fairly absolute rule: Do NOT talk to the police. They’re not trying to “get your side of things” or clear you.  For example, if you got in a fight and claim that you hit somebody in self-defense, that’s a legal defense, but it won’t stop you from being investigated, arrested or charged.  The police aren’t trying to help you by making a determination of self defense or not. They’re trying to get an incriminating statement from you - plain and simple.

So if you’re innocent, why not just tell them your side of things? Many reasons. What if you say the wrong thing? What if they mis-hear what you say? What if you’re misquoted? Once they put it in the police report, unless it’s recorded, everybody will assume what’s in the report is true and accurate.

What if your statement contradicts what a witness says? Let’s suppose the witness gave a statement to the police, but their interpretation was wrong, they didn’t see the whole thing or they got the facts wrong? Then, if your statement doesn’t match, they will assume YOU are being dishonest - after all, why would the independent witness lie about what they saw? See where I’m going with this?

Here’s a link to another blog post I wrote with a video about why you shouldn’t call a detective back.

It’s time for a lawyer.

You’re concerned enough to be searching on the internet for information. Probably well-taken concern. I’d suggest you sit down face to face with a good local criminal defense attorney to discuss things in greater detail. In the mean time, don’t make ANY statements to ANYONE about this. No Facebook, Twitter, emails, texts or calls. Assume everything you say is going straight back to the police and will come back to haunt you.

Joe Dane, Orange County Defense Attorney

info@joedane.com

714) 532-3600

Under California Penal Code 288.4, it is illegal to arrange to meet a minor (or a person you believe to be a minor) for sexual purposes.  The full text of the law is:

288.4 (a)(1) Every person who, motivated by an unnatural or abnormal sexual interest in children, arranges a meeting with a minor or a person he or she believes to be a minor for the purpose of exposing his or her genitals or pubic or rectal area, having the child expose his or her genitals or pubic or rectal area, or engaging in lewd or lascivious behavior, shall be punished by a fine not exceeding five thousand dollars ($5,000), by imprisonment in a county jail not exceeding one year, or by both the fine and imprisonment.

(2) Every person who violates this subdivision after a prior conviction for an offense listed in subdivision (c) of Section 290 shall be punished by imprisonment in the state prison.

(b) Every person described in paragraph (1) of subdivision (a) who goes to the arranged meeting place at or about the arranged time, shall be punshed by imprisionment in the state prison for two, three or four years.

(c) Nothing in this section shall preclude prosecution under any other provision of law.

What does that mean?

First, it is a misdemeanor to arrange a meeting with a minor (anyone under 18) or a person who is believed to be a minor (such as an undercover sting where police pose as children in chat rooms) for sexual purposes.  The prosecution would have to prove a sexual interest in children and that the meeting was for the purpose of exposing oneself or the minor or any other sexual conduct with the minor.

If the person has a previous conviction for any of the listed sex crimes in Penal Code 290(c) [they include rape, molestation, possession of child pornography, etc.], then that same arranged meeting can be filed as a felony with up to 3 years in custody.

If the person not only makes an arrangement to meet, but then shows up to actually meet, it is a felony with up to 4 years prison, even without any prior convictions.

Defenses

This crime has become well-known based on TV programs such as NBC’s “To Catch a Predator” and other sting operations.  There are defenses to these charges.

First, the prosecution has to prove a specific sexual intent and a specific act was intended.  If the “arrangement” was unclear, they cannot meet the burden of proving the charges.  Similarly, if it is unclear that the person was under age (or pretending to be under age), that element of the crime would be missing and the charge would not be proven.

Next, in sting operations like these, you have to examine the case carefully from an entrapment defense standpoint.  The police (or anyone operating on behalf of the police) cannot say or do things to entice somebody into this crime.  If they cross the line, it is a defense to the charges.  For example, if they are the ones pushing for the meeting when you tried to resist, that too can be a defense.  The same thing can happen if an undercover officer is the one that keeps initiating contact or is the one that steers the conversation to sexual topics.  The entire case and all the relevant communications will have to be examined.

It goes without saying, but if you are under investigation for an offense such as this, you should NOT be making any statements to anyone except your attorney in a confidential setting.  Assume everything you say will go straight back to the police. To discuss your situation in more detail, give me a call and we can set up a time to discuss your case.

Joe Dane, Orange County Defense Attorney

info@joedane.com

714) 532-3600

I just found out I have a Bench Warrant for my arrest! What does that mean?

Simply put, a bench warrant is a warrant for your arrest issued by a judge not necessarily for new charges, but because you either didn’t do something you were supposed to do or you did something you were ordered not to.

Why are bench warrants issued?

Most commonly, bench warrants are issued for one of the following reasons:

• Failure to appear (FTA) for a court date
• Failure to pay fines or restitution
• Being terminated from a program (DUI school, drug program, domestic violence classes, etc.)
• Failing to do something ordered by the court (such as community service, CalTrans, etc.)

How do you clear up a bench warrant?

First, warrants never expire.  Many people find out they have an old warrant and wonder what the statute of limitations is on warrants.  The statute of limitations has to do with how long the prosecution has to file charges against you.  It doesn’t apply to warrants.  The only way to clear a warrant is to be arrested or to have the judge recall the warrant when you (or your lawyer) appears in court.  It is ALWAYS better to deal with warrants head on, rather than waiting to be arrested on them.  You are in a much better position if you and your attorney voluntarily show up in court once you find out a warrant was issued for you, rather than facing the judge in handcuffs and in a jail jumpsuit.

If you have a warrant out for your arrest in Orange County, give me a call.  Knowing why the warrant was issued will be important so we can take steps to minimize any consequences.

Joe Dane, Orange County Defense Attorney

info@joedane.com

714) 532-3600

The crime of “theft” is generally defined in Penal Code section 484.  There are several different theft crimes, depending on the value of the property, how the property is taken or in this case, what the stolen item is.

What is Grand Theft of a Firearm in California?

Under Penal Code section 487(d), the theft of any firearm, no matter what the value, is grand theft.  Unlike other kinds of grand theft, this is not a “wobbler” and cannot be reduced to a misdemeanor.  It carries up to three years in custody as a maximum punishment.  It is also a “strike” under California’s “Three Strikes” law since it’s classified as a “serious” felony in Penal Code 1192.7(c)(26).  In addition, it is a crime that does NOT qualify for serving time in county jail (unless probation is granted).

The Law:

The full language of Penal Code 487 that deals with grand theft firearm is:

Grand theft is theft committed in any of the following cases:
(a) When the money, labor, or real or personal property taken is of a value exceeding nine hundred fifty dollars ($950), except as provided in subdivision (b).
(b) Not withstanding subdivision (a), grand theft is committed in any of the following cases:
…
(d) When the property taken is any of the following:
…
(2) A firearm.

Intent

With any theft offense, they must prove a specific theft intent - that is, they  must prove that the property was taken with the specific intent to permanently deprive another of their property.  They must also prove that the property was taken without permission.  For example, if your friend loaned you their gun and later wanted it back and you refused, it is not theft of firearm since the original “taking” was done with consent or permission.  That situation may be prosecuted as an embezzlement or under a different theory of theft, but not as a Grand Theft of a Firearm under 487(d)(2).  If the firearm was taken during a residential burglary, both the burglary [Penal Code sections 459 & 460(a)] and the Grand Theft Firearm can be charged.  Since residential burglary is also a strike, breaking into a house and stealing a firearm could be charged as two strikes.

If you have additional questions or are facing charges for Grand Theft Firearm - or any other criminal offense - give me a call and we can set up a time to meet and discuss things further.  Until we’re speaking face to face in a confidential setting, don’t make any statements to anyone about your situation.  Assume anything you say anywhere will be used against you.

Joe Dane

info@joedane.com

714.532.3600

Is any felony charge a “strike”?

California’s “Three Strikes” law was passed in 1994.  Many people think that every felony conviction is a “strike” so a third felony must mean they’re facing 25-life under the “three strikes” law.  Not so.  Only “serious” and “violent” felonies are strikes.

Under Penal Code section 1192.7(c), the following crimes are listed as “serious” felonies:

1. Murder or voluntary manslaughter;
2. mayhem;
3. rape;
4. sodomy by force, violence, duress, menace, threat of great bodily injury, or fear of immediate and unlawful bodily injury on the victim or another person;
5. oral copulation by force, violence, duress, menace, threat of great bodily injury, or fear of immediate and unlawful bodily injury on the victim or another person;
6. lewd or lascivious act on a child under 14 years of age;
7. any felony punishable by death or imprisonment in the state prison for life;
8. any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice, or any felony in which the defendant personally uses a firearm;
9. attempted murder;
10. assault with intent to commit rape or robbery;
11. assault with a deadly weapon or instrument on a peace officer;
12. assault by a life prisoner on a noninmate;
13. assault with a deadly weapon by an inmate;
14. arson;
15. exploding a destructive device or any explosive with intent to injure;
16. exploding a destructive device or any explosive causing bodily injury, great bodily injury, or mayhem;
17. exploding a destructive device or any explosive with intent to murder;
18. any burglary of the first degree;
19. robbery or bank robbery;
20. kidnapping;
21. holding of a hostage by a person confined in a state prison;
22. attempt to commit a felony punishable by death or imprisonment in the state prison for life;
23. any felony in which the defendant personally used a dangerous or deadly weapon;
24. selling, furnishing, administering, giving, or offering to sell, furnish, administer, or give to a minor any heroin, cocaine, phencyclidine (PCP), or any methamphetamine-related drug, as described in paragraph (2) of subdivision (d) of Section 11055 of the Health and Safety Code, or any of the precursors of methamphetamines, as described in subparagraph (A) of paragraph (1) of subdivision (f) of Section 11055 or subdivision (a) of Section 11100 of the Health and Safety Code;
25. any violation of subdivision (a) of Section 289 where the act is accomplished against the victim’s will by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person;
26. grand theft involving a firearm;
27. carjacking;
28. any felony offense, which would also constitute a felony violation of Section 186.22;
29. assault with the intent to commit mayhem, rape, sodomy, or oral copulation, in violation of Section 220;
30. throwing acid or flammable substances, in violation of Section 244;
31. assault with a deadly weapon, firearm, machinegun, assault weapon, or semiautomatic firearm or assault on a peace officer or firefighter, in violation of Section 245;
32. assault with a deadly weapon against a public transit employee, custodial officer, or school employee, in violation of Section 245.2, 245.3, or 245.5;
33. discharge of a firearm at an inhabited dwelling, vehicle, or aircraft, in violation of Section 246;
34. commission of rape or sexual penetration in concert with another person, in violation of Section 264.1;
35. continuous sexual abuse of a child, in violation of Section 288.5;
36. shooting from a vehicle, in violation of subdivision (c) or (d) of Section 26100;
37. intimidation of victims or witnesses, in violation of Section 136.1;
38. criminal threats, in violation of Section 422;
39. any attempt to commit a crime listed in this subdivision other than an assault;
40. any violation of Section 12022.53;
41. a violation of subdivision (b) or (c) of Section 11418; and
42. any conspiracy to commit an offense described in this subdivision.

Joe Dane

info@joedane.com

714.532.3600

Is Every Felony a “Strike” in California?

California’s “Three Strikes” law was passed in 1994.  Many people think that every felony conviction is a “strike”.  They aren’t.  Only “serious” and “violent” felonies count as “strikes” under the law.

The “serious” felonies are listed in Penal Code 1192.7.  Here is a list of the “violent” felonies from Penal Code section 667.5(c):

1. Murder or voluntary manslaughter.
2. Mayhem.
3. Rape as defined in paragraph (2) or (6) of subdivision (a) of Section 261 or paragraph (1) or (4) of subdivision (a) of Section 262.
4. Sodomy as defined in subdivision (c) or (d) of Section 286.
5. Oral copulation as defined in subdivision (c) or (d) of Section 288a.
6. Lewd or lascivious act as defined in subdivision (a) or (b) of Section 288.
7. Any felony punishable by death or imprisonment in the state prison for life.
8. Any felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in Section 12022.7, 12022.8, or 12022.9 on or after July 1, 1977, or as specified prior to July 1, 1977, in Sections 213, 264, and 461, or any felony in which the defendant uses a firearm which use has been charged and proved as provided in subdivision (a) of Section 12022.3, or Section 12022.5 or 12022.55.
9. Any robbery.
10. Arson, in violation of subdivision (a) or (b) of Section 451.
11. Sexual penetration as defined in subdivision (a) or (j) of Section 289.
12. Attempted murder.
13. A violation of Section 18745, 18750, or 18755. [explode device with intent to murder; explode device causing bodily injury; explode device causing death]
14. Kidnapping.
15. Assault with the intent to commit a specified felony, in violation of Section 220.
16. Continuous sexual abuse of a child, in violation of Section 288.5.
17. Carjacking, as defined in subdivision (a) of Section 215.
18. Rape, spousal rape, or sexual penetration, in concert, in violation of Section 264.1.
19. Extortion, as defined in Section 518, which would constitute a felony violation of Section 186.22 of the Penal Code.
20. Threats to victims or witnesses, as defined in Section 136.1, which would constitute a felony violation of Section 186.22 of the Penal Code.
21. Any burglary of the first degree, as defined in subdivision (a) of Section 460, wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary.
22. Any violation of Section 12022.53. [personal use of a firearm during the commission of certain offenses]
23. A violation of subdivision (b) or (c) of Section 11418. [possession of a weapon of mass destruction]

Joe Dane

info@joedane.com

714.532.3600

What is a “995 motion”?

In felony cases, there are several procedural safeguards in place before your case goes to trial.  In California, there are two ways for your felony to move forward - either by an indictment by the grand jury or based on the filing of charges and after a preliminary hearing.

The District Attorney can choose to take your felony case to the Grand Jury.  If so, there are certain procedures they must follow, but if the Grand Jury hears the evidence and decides to indict you, they issue a “true bill”.  The District Attorney then files a charging document in court called an indictment.  That indictment lists the charges the prosecutor believes they have proven to the Grand Jury and unless something happens, those are the charges you will face at trial.

The other way for the prosecutor to go forward to trial is to file an initial charging document (a “complaint”) and then conduct a preliminary hearing.  At the preliminary hearing, they must prove each and every charge (both felonies and misdemeanors) as well as any conduct enhancements such as firearm use, great bodily injury allegations, etc.  They must prove the charges to a judge by a probable cause (or “reasonable cause”) standard.  It’s a fairly low burden of proof, but it still has to be met.  If the prosecution is able to put on sufficient evidence at the preliminary hearing and the judge holds you for trial, the prosecutor then files a new charging document called an “information”.

Challenging the charges

If we feel that the judge’s ruling or the Grand Jury’s findings were incorrect, the law provides a way for us to challenge the charges.  Under Penal Code section 995, the indictment or information shall be set aside in either of the following cases:

1.  If it is an indictment:

Where it is not found, endorsed and presented as prescribed in this code.

That the defendant has been indicted without reasonable or probable cause.

2.  If it is an information:

That before the filing thereof the defendant had not been legally committed by a magistrate.

That the defendant had been committed without reasonable or probable cause.

What does that actually mean?  Since most felony cases proceed by way of a preliminary hearing, let’s look at the two ways an information can be dismissed under Penal Code section 995.

“Not legally committed by a magistrate”

This deals with the procedural aspects of the preliminary hearing and can include constitutional violations as well.  First, there is a right to have a continuous preliminary hearing.  Some preliminary hearings only take 30 minutes, but others can take hours or even days or weeks.  You have a right to have the judge hearing your preliminary hearing devote the majority of their time to your case without interruption.  The judge can handle minor matters and take breaks, but in general, your case must take priority.  Unless you waive your right to a continuous preliminary hearing, if there is a violation, your case could be dismissed with a 995 motion.  If there are other errors (a judge denying cross-examination on the evidence or severely limiting it, etc.), those too can be reasons for a 995 motion to be granted and your case dismissed.

“Committed without reasonable or probable cause”

In every criminal charge, there are elements of the crime.  In the most basic example, a DUI, there are two elements:  1) Driving and 2) under the influence.  The prosecution must put on sufficient proof of both of those elements AND sufficient proof of you identification as the person who committed the offense before you should be held to answer.  This standard applies to all felonies and misdemeanors you’re charged with in your case.  Although the burden of proof  is relatively low, there must still be sufficient evidence.  When we file a 995 motion, we are asking a different judge to review the evidence and decide whether or not there was sufficient evidence, even at this low burden of proof.  The DA can file whatever they want in the original complaint, but they must prove it at preliminary hearing.  They can only file charges in the information that were proven at the preliminary hearing.  It boils down to this:  If it’s not in the transcript of the preliminary hearing, it didn’t happen.  The judge that will hear and decide the 995 motion is restricted to the evidence actually presented and written down in the transcript.  Not what is in the police reports, not speculation and not anything else.  Just words on the pages of the transcript.  If the elements of the crimes charged against you haven’t been proven, then the case must be dismissed.

For example, in a case I handled, the DA filed multiple counts of insurance fraud against my client.  Their allegation was that my client was claiming to have been injured and was receiving worker’s compensation, but they were not as injured as they claimed to have been.  The preliminary hearing was conducted and I argued that there was not sufficient proof of any fraudulent intent in the statements my client was alleged to have made to their doctor.  The judge at the preliminary hearing felt there was enough and ordered my client to stand trial.  When we filed the 995 motion, another judge reviewed the evidence in the transcript and agreed with me - there was not enough evidence and my client should not have been ordered to stand trial.  All charges were dismissed.

Other uses for a 995 motion

A motion under Penal Code section 995 can also be filed to dismiss a case if there were other procedural errors.  For example, after a preliminary hearing, the prosecution must file the information (that second charging document) within 15 days of the conclusion of the preliminary hearing.  If they miss that deadline, the case can be dismissed under a 995 motion.  Similarly, if you were held for trial based on illegally gathered evidence (such as an illegal search by the police or a violation of the Miranda rights), the case can potentially be dismissed with a 995 motion.

Timing of a 995 motion

Obviously, a 995 motion can only be filed after a Grand Jury indictment or after a preliminary hearing.  It also must be filed before trial.  If you (and your attorney) do not file a 995 motion, you’ve lost the ability to challenge the sufficiency of the evidence at the preliminary hearing on appeal.

Many times, a preliminary hearing is a great way to challenge the evidence and lock witnesses into their testimony under oath, but it can also be important to set the case up for a possible motion to dismiss so you get a second chance to have your case thrown out.

To discuss your case and situation further, give me a call so we can set up a confidential consultation.

Joe Dane

info@joedane.com

714.532.3600

Even if you don’t actually commit a burglary by entering a structure (see this post for more information about burglary), California still outlaws the possession of certain items.  Under Penal Code section 466, it is illegal to possess any of the following items (Definitions: of what these items are below):

• picklock
• crow
• keybit
• crowbar
• screwdriver
• vise grip pliers
• water-pump pliers
• slidehammer
• slim jim
• tension bar
• lock pick gun
• tubular lock pick
• bump key
• floor-safe door puller
• master key
• ceramic or porcelain spark plug chips or pieces
• or “any other instrument or tool”

with intent to “feloniously break or enter into” any building or other structure that would fit the definition of a ’structure’ under the burglary laws.

What does this mean?  Are all tools outlawed?

Absolutely not.  Everybody has a screwdriver.  Lots of people have vise grip pliers or other tools listed in the law.  The difference is the intent.  The prosecution must prove that you had the specific intent to use the tool you possessed to break and enter into a structure of some sort.  Structures can include both homes and businesses as well as locked cars.  If they cannot prove that you had the specific intent to use whatever you had to break into something, they cannot prove the charge against you.

Definitions

Joe Dane

info@joedane.com

714.532.3600

DUI Patrols are increasing

The Orange County Sheriff’s Department has announced their annual increase in the number of officers on the street for their “DUI saturation” patrols. They are calling this crackdown a “zero tolerance” approach. That’s nice, but they’ve still got to follow the rules. You also have your rights.

They have said that they will be sending extra patrol deputies to the cities of San Clemente, Dana Point and San Juan Capistrano this weekend. They say they are targeting areas that have had high frequencies of DUI collisions and/or arrests in the past.

Just calling it a “crackdown” doesn’t mean they can just stop everybody and check to see if they’ve been drinking. They must still have reasonable suspicion of some sort of violation before they can stop and detain you. They need to be able to at least have some sort of violation, not just a hunch because it’s 2:00 in the morning and they think anybody out at that hour must have been drinking.

Keep your rights in mind

I’ve written articles about your rights during a DUI stop. They won’t give you your Miranda warnings, so anything you say can only hurt you. Unless you are under 21 or are on probation for a DUI, you do not have to submit to the handheld breathalyzer they’ll want you to do.  The field sobriety tests (FSTs) are also not mandatory.

Should you find yourself arrested for DUI, give me a call so we can discuss your case.  You may have legal or factual defenses available.  Don’t wait - you only have 10 days from the date of your arrest for me to contact the DMV and schedule a hearing or they will automatically suspend your driver’s license for four months.

Joe Dane

info@joedane.com

714.532.3600

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The Orange County Sheriff’s Department has announced this year’s upcoming DUI checkpoint dates and locations.  They are also conducting extra “saturation patrols” and making an effort to serve outstanding DUI arrest warrants over this month. For information about your rights and DUI checkpoints, see the following links:

What to do when pulled over for DUI

DUI and Miranda rights

Passenger’s rights during a DUI checkpoint

Here are the announced dates and locations:

DUI and Driver’s License Checkpoints

• Laguna Hills - Friday December 14 from 7:00 to 3:00 am
• Los Alamitos and Seal Beach - Friday December 14 from 7:00 to 3:00 am
• Westminster - Thursday December 20 from 7:00 to 3:00 am
• Anaheim - Saturday December 29 from 7:00 to 3:00 am

DUI “Saturation Patrols”

• Friday, December 21 8:00 to 3:00 am in Los Alamitos, Orange and UC Irvine Police
• Saturday, December 22 8:00 to 3:00 am in Placentia, Buena Park and La Habra
• Saturday, December 22 8:00 to 3:00 am - Anaheim and Cal State Fullerton Police
• Monday, December 31 8:00 to 3:00 am - Placentia Police

Continuous DUI Saturation Patrols

• Orange County Sheriff’s Department
• Irvine Police Department
• La Palma Police Department
• Laguna Beach Police Department
• Tustin Police Department

Warrant Service

The Orange County Sheriff’s Department and the Buena Park Police Department will be doing DUI Warrant service operations during the winter holidays.  (Click the following link to see if you have an outstanding arrest warrant in Orange County)

Should you get arrested for DUI in one of these checkpoints, they can be attacked.  Give me a call to discuss your options.  Keep in mind that you only have 10 days from the date of your arrest to schedule a hearing with the DMV or they will automatically suspend your driver’s license for 4 months.

Joe Dane

info@joedane.com

714.532.3600

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

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

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:

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