Archive for January, 2012

In California, there are two main statutes criminalizing conduct that results in a fire. An individual may be prosecuted for committing the crime of arson or the crime of recklessly causing a fire. A person is guilty of arson when he or she willfully and maliciously sets a fire, burns, or assists another person in burning any structure, forest, land, or property. The offense of unlawfully causing a fire, on the other hand, covers reckless accidents or unintentional fires, which are committed by a person who consciously disregards a substantial and unjustifiable risk that his or her act will set fire to forest, land, or other property. Thus, the key element of arson is that the burning must be intentional and not simply accidental.

Nonetheless, California courts disagreed on whether arson required additional showing that an individual must actually intend to cause a fire or commit another wrongful or harmful act associated with such conduct. For example, an individual may light a firecracker during the Fourth of July celebration without intending to cause a fire to the surrounding area. Recently, however, the California Supreme Court has ruled that an intentional act of throwing that firecracker into dry brush will be sufficient to establish the requisite mental state for arson even though the person did not intend to cause the fire. The court reasoned that under such circumstances the burning of dry brush is the direct and probable consequence of throwing the firecracker. Thus, an individual’s intent to do a wrongful act will be presumed or implied from his or her deliberate and intentional ignition of a firecracker.

As a result, the prosecution is no longer required to prove that persons knew or were subjectively aware that the fire would be the probable consequence of their acts. Rather, individuals may be guilty of arson if they act with awareness of facts that would lead a reasonable person to realize that the direct, natural, and highly probable consequence of their actions would result in burning of a structure or land. Most notable examples of such conduct include throwing a firecracker into dry brush resulting in the burning of the hillside, or lighting the weeds in a cleared area in a canyon that has heavy brush, trees, and grass.

The San Diego Law Office of Domenic J. Lombardo is dedicated to defending criminal charges in state, federal, and county courts throughout San Diego. For a free consultation, contact us at (619) 232-5122, or: info@attorneylombardo.com.

For more information on California felony and misdemeanor offenses, see the following:

http://www.attorneylombardo.com/felonies_misdemeanors/san_diego_arrested

No CommentsTags: accident, arson, California Supreme Court, celebration, criminal defense lawyer, criminal prosecution, firecracker, Fourth of July, intent, intentional burning, mental state, recklessly causing a fire, substantial and unjustifiable risk, trial court, wrongful actRead More

It is a federal crime for a convicted felon to be in unlawful possession of a firearm, and the ordinary maximum sentence for that crime is 10 years of imprisonment. However, under the Armed Career Criminal Act (Act), a convicted felon unlawfully in possession of a firearm is subject to a 15-year minimum prison sentence if that individual has previously been convicted of a violent felony or serious drug offense. This federal Act has been enacted to specifically target the so called “armed career criminals” whose criminal history shows that they are more likely to deliberately point the gun and pull the trigger at an innocent person.

Under the Act, a serious drug offense may be an offense under state law involving manufacturing, distributing, or possessing with intent to manufacture or distribute, any controlled substance for which a maximum term of imprisonment is ten years or more. An actual prison term of ten years is not required. Rather, the fact of conviction for such drug offense will be enough. Also, subsequent changes in state law cannot simply erase an earlier conviction for purposes of federal sentencing proceedings unless a conviction has been expunged or set aside, or an individual has been pardoned. Thus, it is critical to consult with an experience criminal defense lawyer, who will be able to provide an accurate legal advice as to the possibility of expunging prior criminal record.

A violent felony under the Act is a crime that has as an element of use, attempted use, or threatened use of physical force against another person. As such, assault with a deadly weapon, robbery, burglary, arson, or extortion, are all considered qualifying offenses for purposes of the Armed Career Criminal Act. In addition, courts usually take into account other felony convictions involving conduct that presents a serious potential risk of physical injury to another. Most recently, the United States Supreme Court has held that a state conviction for vehicle flight is a violent felony under the Act because defendant’s determination to escape makes a lack of concern for the safety of others an inherently dangerous part of the offense.

The San Diego Law Office of Domenic J. Lombardo is dedicated to defending criminal charges in state, federal, and county courts throughout San Diego. For a free consultation, contact us at (619) 232-5122, or: info@attorneylombardo.com.

For more information on drug crimes, see the following:

http://www.attorneylombardo.com/drug_crimes/possession-sale-controlled_substance

For more information on clearing criminal records, see the following:

http://www.attorneylombardo.com/clearing_criminal_record/expungement-clearing-sealing

No CommentsTags: Armed Career Criminal Act, armed career criminals, arson, controlled substance, convicted felon, criminal defense lawyer, expungement, extortion, federal court, imprisonment, pardon, possession of firearms, prison sentence, robbery, sentencing judge, serious drug offense, state felony conviction, trial court, vehicle flight, violent felonyRead More

Recently, the United States Supreme Court has ruled that the prosecution is prohibited from introducing a forensic laboratory report containing a BAC (blood alcohol concentration) certification through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification. The court reasoned that analyst’s certification of evidence prepared in connection with a criminal investigation was “testimonial” in nature, and, therefore, fell within the core statements protected by the Confrontation Clause of the Sixth Amendment to the United States Constitution. From now on, forensic analysts who write reports to be introduced as evidence against defendants at trial must be made available for defense counsel’s cross-examination. Otherwise, such evidence will be inadmissible, and the case may be dismissed.

Under the Sixth Amendment, every accused in a criminal prosecution has the right to be confronted at trial with the witnesses who testifies against that individual. The Confrontation Clause permits the admission of testimonial statements of witnesses who are not present at trial only where such witnesses are unavailable, and only where the defendant has had a prior opportunity to cross-examine those individuals. A forensic laboratory report stating that the accused’s blood alcohol concentration was over .08% is ranked as testimonial pursuant to the Sixth Amendment’s Confrontation Clause because it is created for the sole purpose of introducing it against the defendant at trial to secure his conviction.

Absent stipulation, the prosecution may no longer be able to introduce such a report by eliciting the testimony of a live witness who had neither participated in nor observed the test on the defendant’s blood sample. This decision casts serious doubt upon the validity of the California rule that allows the introduction of DNA evidence against the defendant at trial based upon the testimony of a forensic specialist who did not perform the original testing. Since DNA and BAC testing remains the most common forensic examinations performed in San Diego, this ruling enables defense attorneys to be more compelling in arguing for dismissal of a criminal prosecution based upon a violation of the defendant’s Confrontation rights.

The San Diego Law Office of Domenic J. Lombardo is dedicated to defending criminal charges in state, federal, and county courts throughout San Diego. For a free consultation, contact us at (619) 232-5122, or: info@attorneylombardo.com.

No CommentsTags: BAC, certification, Confrontation Clause, criminal defense lawyer, criminal investigation, cross examination, defendant, defense counsel, DNA, examination, forensic specialist, prosecution, Sixth Amendment, testimony, trial court, United States Constitution, United States Supreme Court, witnessRead More