Posts Tagged ‘criminal lawyer’

What constitutes an arrest warrant in California? An arrest warrant is a court order issued by a judge that directs any peace officer to arrest a specified individual charged with a crime, and to bring him or her before a judge for further criminal proceedings. A warrant is usually based upon a declaration by a police officer setting forth facts that the officer believes constitutes the offense listed in a warrant. The facts provided in the officer’s declaration must be sufficient enough to establish probable cause to arrest such an individual. “Probable cause,” “reasonable cause,” and “sufficient cause” are synonymous terms. They all describe the same definition, which is the state of facts that would lead a person of ordinary caution and prudence to believe that a suspect to be arrested is guilty of a crime.

An arrest warrant is directed to any peace officer in the state of California, or any other public officer authorized by law to act in such capacity. A warrant defines the crime that allegedly has been committed, and specifies the name of the individual to be arrested. A warrant also shows the time when it was signed by judge. In addition, when a judge determines that the offense charged is bailable, the amount of bail must be endorsed on a warrant. It means that an individual has to be permitted to bail out in the amount fixed and specified in such a warrant. It is also important to know that an arrest based upon a felony warrant may be made at any time, while a misdemeanor or infraction warrant is primarily executed during the daytime.

Persons arrested on misdemeanor new offense warrants may be released on a citation with a promise to appear in court on a specific date and time, in the discretion of the arresting officer. However, individuals charged with a new felony offense must be brought before a judge without unnecessary delay, and, in any event, within 48 hours after such a person has been arrested by a law enforcement agency. It is important to know, though, that the time authorized by law to bring a person before a judge excludes weekends and holidays, and the clock doesn’t start until the first business day following the arrest. Therefore, an individual who has been arrested on Thursday night may not see a judge in court until Tuesday afternoon. That is, the hearing occurs almost 120 hours after the arrest and yet within the statutorily prescribed period prohibiting unnecessary delay.

San Diego criminal courts ordinarily schedule misdemeanor and felony arrest matters on the third business day following the arrest. Arrest warrants for cases that have already had a court appearance, such as probation violations, for example, are not subject to the “48 hours” rule and are scheduled about 10 days from the date of arrest.

This office handles all types of San Diego County criminal court arrest warrants. For free advice on how to clear a warrant, contact us at info@attorneylombardo.com.

For more information on arrest warrants, see the following:

www.attorneylombardo.com/10-things-know-about-san-diego-arrest-warrants/

www.attorneylombardo.com/arrest_warrants_bench_warrants/traffic-offense-california

No CommentsTags: arrest warrant, bailable, bench warrant, California, court appearance, crime, criminal defense, criminal lawyer, felony warrant, infraction, judge, misdemeanor, night service, police officer, probable casue, probation violation, reasonable cause, san diego, sufficient cause, timeRead More

The Fourth District Court of Appeals tossed Judge Salcido’s lawsuit against the Honorable Judge Peter Deddeh and her fellow judges.  The Court noted that the traditional way a lawsuit is brought, where an aggrieved litigant such as the Office of the District Attorney or a criminal defendant, appeals a judicial decision. The Appellate Court ruled that she has no legal basis to press the lawsuit as a judge. Moreover, the appellate court will not issue what amounts to an advisory opinion. As predicted in this criminal lawyer blog, the lawsuit was doomed to fail on legal grounds. Whether the lawsuit helped her reelection campaign remains to be seen.

No CommentsTags: advisory opinion, criminal defendant, criminal lawyer, Deddeh, Fourth District Court of Appeals, judge, lawsuit, Office of the District Attorney, opinion, reelection campaign, SalcidoRead More

The man famous for his Hollywood movies, murdered wife, and life as a fugitive may be extradited from Switzerland to a Los Angeles, California courtroom. Polanski faces sentencing in a felony sex case over three decades old. He fled the United States jurisdiction after he pleaded guilty and before the sentencing hearing. He has a few options, however.

His lawyer’s first option will be to move to dismiss his case. The misconduct of his judge and a prosecutor in his case provides ample ammunition for a dismissal in the interests of justice.

He may also move to withdraw his plea. The law provides that a criminal defendant may withdraw his or her guilty plea for “good cause.” Good cause is an elastic concept, one that will almost certainly embrace the broken promises made by the judge and the other misconduct pervading his prosecution.  Withdrawing his plea has some risks, most obviously that he would face charges substantially more serious charges than the one he is now facing (charges that will carry mandatory prison time – no probation).  On the other hand, his attorney may calculate that the D.A. does not have sufficient evidence anymore to prosecute the case to verdict. Polanski would then be in even a better position than he is now – no conviction on his record.

Polanski’s last option is to face the sentencing squarely. Other Los Angeles judges have made favorable findings in his case, even in his absence. Polanski’s attorney can without doubt demonstrate an abundance of reasons that favor probation both as to the offense and the offender. An astute criminal lawyer may conclude, therefore, that the risk of a state prison sentence is very remote, and the likelihood of probation, and credit for time served, is very high.

The prosecution may elect to file a felony charge for failing to appear in court, but this will likely be defeated by their own failure for many years to make any real attempt to bring him to justice.

The battle is far from over, but Polanski is unlikely to suffer any further punishment in this case.

No CommentsTags: attorney, California, conviction, court, courtroom, criminal defendant, criminal lawyer, D.A., dismissal, extradite, failure to appear, felony charge, felony sex case, fugitive, good cause, interests of justice, Los Angeles, miscondcut, probation, prosecutor, punishment, Roman Polanski, Sentencing, serious charges, sex offender, sex offense, state prison, Switzerland, time served, withdraw guilty pleaRead More

A kidnapped girl was discovered 18 years after her abduction at the home of a convicted parolee and registered sex offender despite the fact that law enforcement has repeatedly been in contact with the man and has visited his home on many occasions over the years. That law enforcement for almost two decades missed Jaycee Dugard at the home of Phillip and Nancy Garrido is no great surprise to criminal lawyers. The shared resources of the U.S. federal  and Nevada state authorities  was not enough to effectively manage this parolee.  California – like every other state – has overburdened our police, probation and parole authorities by continuing the trend toward retribution and punishment over rehabilitation and reformation. Non-violent three strike offenders overburden prison officials. Juveniles are increasingly being punished as adults within the already crowded criminal courts. New enhancements and new Penal Code provisions and harsher punishment are continually being written into law. The list of those offenses that require registration for life as a sex offender is ever expanding. Consequently, prison, parole and probation officials cannot keep up with the workload and those persons convicted of misdemeanor non-violent sex offenses are draining resources from the supervision of high risk offenders.  As California clearly does not have more money to throw at these criminal justice problems, perhaps it is time to re-think how to best allocate the money we do have.

No CommentsTags: California law, court, criminal law, criminal lawyer, enhancement, high risk offenders, Jaycee Dugard, Juvenile Law, kidnapped, law enforcement, Nancy Garrido, offenses, parole, penal code, Phillip Garrido, police, probation, punsihement, reformation, rehabilitation, retribution, sex offender, sex offense, sex registration, three strikesRead More

The unprecedented California budget crisis has now resulted in the San Diego Superior Court closing every third Wednesday of the month, effective September 1, 2009. Court clerks have already cut-back to a shorter work day, and the court closing will put further strain on a majority of criminal court defendants and defense lawyers. The budget mess has also forced the California Legislature to consider a number of proposals to allow for early release of prisoners.  The early release will lighten the budget load as the higher cost of housing prison inmates will be eased by the lower cost of parole supervision. This proposal, of course, does not apply to inmates in county jails serving a probationary sentence.  There are a few county sheriffs, however, that take a creative approach to the meaning of “custody” by allowing their county inmates to “serve custody” in ways ranging from electronic surveillance to work release. In this way their budget load is lightened.

The budget mess is clearly both helping and hurting criminal defendants.

No CommentsTags: attorney, budget crisis, California Legislature, county jail, court clerks, criminal courts, criminal defendant, criminal lawyer, custody, defense attorney, early release, electronic surveillance, inmate, parole, prisoner, prisoner release, probation, san diego, sentence, sheriff, superior court, work releaseRead More

In serious drug prosecutions, criminal defense lawyers cannot blindly trust police crime lab reports supposedly confirming that a substance is really cocaine, methamphetamine, marijuana, or heroin.  For that matter, anything coming out of the crime lab, such as blood toxicology results, DNA results and chain-of custody receipts should not be blindly trusted, either. The United States Supreme Court , in Melendez-Diaz v. Massachusetts, recently confirmed that crime  lab reports are so important that the analyst that prepared the report and did the testing must be called as a witness and subjected to cross examination by the defense attorney for the results to be used as evidence. The Court held that the Confrontation Clause of the Sixth Amendment of Constitution guarantees this right to defendants seeking to challenge crime lab results. The Court was concerned with the possibility that the report could have been faked or the test may not have been completed properly, and cross examination is the best vehicle for proving problems with the report.

Indeed, here in San Diego, I have recently come into possession of material indicating that a lab analyst who formerly produced reports that were regularly relied upon by San Diego prosecutors, committed perjury while working at another job by faking lab reports and results of confirmatory lab tests. (In crime labs, the presumptive test alone is not valid to conclude the actual presence of the controlled substance; a more reliable, confirmatory test is needed). The information showed that 1000′s of tests were faked.  These false lab reports of drug results are clearly relevant to proving that his work product – in fact anything he touched – cannot be trusted. In many drug cases, the alleged controlled substance may be available for retesting or the defense may conduct their own tests. The defense lawyer should also consider a complete review of the chain-of-custody for each and every lab item sought to be used by the prosecutor.  

The lesson a bad lab analyst imparts only reinforces what every good defense lawyers knows: don’t assume that any piece of evidence is infallible.

Contact us for help with your case, (619) 232-5122, or  info@attorneylombardo.com.

No CommentsTags: analyst, chain-of custody, cocaine, confirmatory lab tests, confirmatory test, Confrontation Clause of the Sixth Amendment, controlled substance, crime lab, criminal defense lawyer, criminal lawyer, cross examination, Domenic J. Lombardo, Drug Cases, drug prosecutions, false lab report, heroin, lab report, lab reports, law enforcement, marijuana, Melendez-Diaz v. Massachusetts, methamphetamine, perjury, presumptive test, san diego criminal defense attorney, san diego criminal lawyer, San Diego Police Crime lab, San Diego prosecutorsRead More

Criminal defense lawyers uniformly advise their clients to provide information to law enforcement only by and through an attorney, and for good reason. Many cases are prosecutable only because the defendant gave the police what they needed to make their case. In the past, attorneys did not have to worry about law enforcement sneaking behind their back to interrogate their criminal defendant clients, because the law protected the defendant from law enforcement using that information without the defendant’s express consent. But just in the past week, here in San Diego, I have been informed of two occasions where law enforcement has tried to question a client of mine without my prior knowledge or consent. In the past, making a run around the lawyer would have been clearly illegal conduct.

No longer. Law involving the Sixth Amendment right to counsel was recently changed by the United States Supreme Court’s decision in Montejo v. Louisiana. The Court in Montejo overruled the famous Supreme Court case Michigan v. Jackson, where the Court held police are prohibited from initiating an interrogation of a defendant once an attorney has been appointed. Prior to Montejo, in situations where counsel is appointed by the court, there was a presumption that any later waiver of the Sixth Amendment right to counsel is involuntary. As a result of this recent decision, in such cases where counsel is appointed for a defendant, the police are allowed to later interrogate the defendant when the defendant consents. The presumption that the statement was involuntary is no longer valid. This decision has a tremendous impact on criminal defendants as many defendants would assume that once counsel is appointed police interrogations are not permitted without counsel present. This decision exposes criminal defendants to less protection from interrogations by police after counsel is obtained.

Criminal defense attorneys must take a lesson from Montejo and advise law enforcement at the earliest stage in the proceedings that that the defendant expressly invokes his or her right to counsel and does not consent to any law enforcement contact without the attorney.

Indeed, the stakes for some defendants are high: Mr. Montejo himself was charged with first-degree murder, was convicted, and sentenced to death, thanks partly to his cooperation with the police. The court had appointed counsel but the police didn’t wait to question him. The police paid him a visit and obtained not only a letter of confession but took him on a field trip to locate the murder weapon. He later met his attorney for the first time. The Louisiana Supreme Court rejected his claim that his statements and gun  should have been suppressed under the rule of Michigan v. Jackson, which forbids police interrogation after the right to counsel has been invoked. It held that Jackson’ s protection is not triggered unless the defendant has actually requested a lawyer or otherwise asserted his Sixth Amendment right, and here Mr. Montejo apparently did not actually make the request or assertion. The Court overruled Jackson. And Montejo sits on death row.

Contact us to help with your case, (619) 232-5122, or  info@attorneylombardo.com.

No CommentsTags: confession, cooperation with police, criminal case, criminal defendant, criminal defense, criminal defense attorneys, criminal defense lawyer, criminal lawyer, death penalty, evidence, interrogate, interrogation, jackson, law enforcement, montejo, murder, right to counsel, right to remain silent, san diego criminal defense attorney, san diego lawyer, Sixth AmendmentRead More

The most commonly prosecuted theft offenses involve the alleged taking of property from a retail merchant. Often the dollar value of the items is relatively small and the accused has no prior criminal record. Yet a conviction for petty theft is a serious matter. The law requires at least one day in jail, a “book and release” that can take as long as 20 hours to accomplish, a fine and possibly a theft counseling class for another 8 hours. The maximum sentence is up to 6 months in jail and a $2,000.00 fine. And the stigma from a petty theft conviction is difficult to overcome. Employers are understandably reluctant to hire a convicted thief.

San Diego Criminal defense attorneys often negotiate lesser offenses in these cases -especially to avoid jail – but the possible availability of a Civil Compromise is rarely explored.

In fact, in many other matters where a person is charged with a misdemeanor and the misdemeanor resulted in a victim incurring financial loss, the defendant’s charge may be dismissed through the process of civil compromise. Charges of minor vandalism, hit and run and theft are common examples of violations where a civil compromise may be appropriate.  While the result of a successful civil compromise is generally very advantageous for criminal defendants, as it results in a complete dismissal of the charges, it can be a tricky procedure to negotiate.

Civil compromises are subject to several statutory limitations.  For example, a civil compromise is not permissible when a misdemeanor is committed riotously or with the intent to commit a felony. Compromise is no longer available in domestic violence matters, violations of a court order, or crimes against elders or against children.  If none of the limitations apply, the alleged victim must then be “satisfied” for the injury they have suffered. This usually involves the payment of money, which can be problematic for an inexperienced attorney or a defendant without representation, especially considering that communicating the wrong message to a victim can be viewed as witness intimidation.  Once the alleged victim is “satisfied” for their loss, the Judge has the power to dismiss the case even over the objection of the Prosecutor. 

Regardless of these obstacles, in the 18 years that I have been practicing as a criminal defense attorney and negotiating civil compromises, it has been my experience that most people are willing to eventually agree to a civil compromise simply because it is the right thing to do in many theft-related situations. Retailers are more difficult: the store’s attorney must be convinced that the matter is atypical because of some special circumstances involving the alleged offense or the defendant.  A successful result requires an advocate who can explain why this option is in the best interest of the alleged victim, the court and the defendant, and if you are facing theft charges a competent attorney must explore this option.

We have obtained dismissal by compromise in many cases this year alone. Contact us to help with your case, (619) 232-5122, or  info@attorneylombardo.com.

No CommentsTags: book and release, case dismissed, civil compromise, clear a criminal record, criminal defense lawyer, criminal lawyer, defense lawyer, felony theft, misdemeanor theft, petty theft, san diego criminal defense attorney, san diego criminal lawyer, theft, theft crimes, vandalismRead More

The California Supreme Court reaffirmed the principals articulated in the landmark case of Cunningham , supra, by ruling that a defendant was entitled to attack the court’s imposition of the upper term in because, under the circumstances of this case, an express waiver of jury trial on aggravating circumstances was required and no such waiver occurred; and further, that in pleading no contest pursuant to a plea agreement providing for a sentence not to exceed a stipulated maximum and further stipulating to a factual basis for the plea, defendant neither waived his right to a jury trial on aggravating circumstances nor admitted facts that established an aggravating circumstance.

LESSONS FOR THE UNWARY CRIMINAL DEFENSE LAWYER

The case points out the following lessons for criminal defense attorneys:

1. A waiver of trial rights on aggravating factors should NEVER be given at the time that defendant enters a plea of guilty or not contest unless clearly bargained for in a plea-agreement AND expressly waived in open court with a fully informed and knowing understanding of what is being waived.
2. Carefully consider the factual basis for the plea together with any judicial admission made on behalf of or by the criminal defendant; these words will come back to bite. The attorney must guard against unnecessarily having the client admit to the existence of any aggravating factor, either generally or specifically.
3. Cases that proceed to a jury trial will require careful consideration of what aggravating and mitigating factors should be specifically put forward to the jury for their determination; special verdict forms must be crafted depending on the dictates on the case together with tactical considerations.

In this way, an attorney can possibly protect their client against the prosecutor reaching the maximum sentence.

The court began by noting that in Cunningham, 549 U.S. ____ [127 S.Ct. 856] the high court held that California’s determinate sentencing law (DSL) violates a defendant’s federal constitutional right to a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution by assigning to the trial judge, rather than the jury, the authority to make the factual findings that subject a defendant to the possibility of an upper term sentence

In the case before the California Court, the trial court sentenced defendant to the upper term of eight years on one charge and one-third of the six-year midterm on each of the other five charges (child molestation), with all terms to be served consecutively, for a total term of 18 years. The trial court selected the upper term because “[d]efendant took advantage of a position of trust and confidence to commit the crime pursuant to Rule 4.421(a)(11),” and imposed consecutive terms because the crimes were committed on different occasions or at separate locations. (Cal. Rules of Court, rule 4.425(a)(3).)

At the time that defendant entered his plea of no contest, he expressly waived his right to a jury trial on the substantive offenses, but this waiver did not encompass his right to a jury trial on any aggravating circumstances. Moreover, the defendant did not admit to the existence of any aggravating factor, either generally or specifically.

Decisions of the United States Supreme Court acknowledge that a defendant’s sentence may be increased above the statutory maximum based upon “facts… admitted by the defendant”. (Cunningham, supra, 127 S.Ct. at p. 865, quoting Blakely, supra, 542 U.S. at p. 303.) As discussed above, defendant’s plea of no contest constituted an admission to the elements of the charged offenses only, and not to any additional aggravating circumstances. The Attorney General argued, that defendant’s stipulation to the factual basis for the plea as described by the prosecutor constituted an admission to the aggravating circumstance that defendant took advantage of a position of trust in committing the offense. The court concluded otherwise.

No CommentsTags: aggravated sentence, criminal lawyer, defense lawyer, felony plea, felony sentencing, jury trial, plea agreementRead More