Here is our favorite quote from To Kill A Mockingbird, by Atticus:  “I wanted you to see what real courage is, instead of getting the idea that courage is a man with a gun in his hand.  It’s when you know you’re licked before you begin, but you begin anyway and you see it through no matter what.”

This best describes the character that I have observed in almost  every client I have ever represented at trial. Each and everyone of them have taught me the true meaning of courage.  As a criminal defense attorney, I am committed to seeing every case I take through no matter what, come hell or high water, and come what may. It’s not an easy job, but it is certainly not easier to be one of my clients sitting in that chair next to me, listening to the evidence against them, and to me as I fight for them, and then waiting for 12 jurors to decide their fate.  I am often humbled by their courage.

I am equal parts entertained and disgusted while reading about the John Edwards criminal trial that is going on now in North Carolina.  This story hits so many archetypal high notes.  His former “longtime trusted aide” has already sold the movie-rights to the story and is testifying against him today, saying how he was “suspicious” all along of Edward’s affair with his videographer-mistress-nowbabymama.  All the while, Edwards was spending the money he raised from a couple of rich people and the rest of his average-Joe followers in order to cover up the affair from the public and his dying wife in order to protect his ticket to the presidency.  Great story.  Too bad it’s true.

Sins, but not crimes, gifts not contributions, his lawyers say.  I would probably spin it that way too.  But still, it’s pretty sickening.   I don’t know, folks.  Do we forgive this one?

http://tinyurl.com/892ubo6

John Edwards and Family in Better Days

When I heard George Zimmerman’s former attorneys commenting in the media about their client’s mental state and the fact that they had lost touch with their client, I could not believe my ears.  To reveal either one of those facts was a complete breach of attorney-client privilege, at least under my understanding of California law.  As criminal defense attorneys, I think they should have known better.  I am not alone in this conclusion:  read this blog posting; Mark Gerragos clearly agrees with me.  http://tinyurl.com/85jh8o9

In my criminal defense practice, I am constantly presented with the question of whether to settle a case or go to trial.  I love to try cases, but sometimes it is simply not in the best interest of the client to risk a trial.  And sometimes the opposite is true:  the case is so over-charged, the deal that is offered is so bad, that sometimes you simply have to try your case before a jury.  This issue is one that every criminal defense lawyer I know has to deal with.

In a New York Times piece this past weekend, Michelle Alexander writes about how things would be different if instead of only 10% of all criminal cases going to trial, 90% of all defendants charged with a crime actually exercised their constitutional right to a trial by jury.  She writes about how that would crash the system, and perhaps bring about a change where the prosecutors were forced to scale back dramatically the number of criminal cases charged:

“The system of mass incarceration depends almost entirely on the cooperation of those it seeks to control. If everyone charged with crimes suddenly exercised his constitutional rights, there would not be enough judges, lawyers or prison cells to deal with the ensuing tsunami of litigation. Not everyone would have to join for the revolt to have an impact; as the legal scholar Angela J. Davis noted, “if the number of people exercising their trial rights suddenly doubled or tripled in some jurisdictions, it would create chaos.”

Such chaos would force mass incarceration to the top of the agenda for politicians and policy makers, leaving them only two viable options: sharply scale back the number of criminal cases filed (for drug possession, for example) or amend the Constitution (or eviscerate it by judicial “emergency” fiat). Either action would create a crisis and the system would crash — it could no longer function as it had before.”

To see the whole article, go to  http://tinyurl.com/7e2wuaj

Click on the link below to to tune in to this fun use of video conferencing using Spreecast which we tried out today.

http://tinyurl.com/78en3fs

Los Angeles criminal defense lawyers are almost always asked “how much time will I actually do” before a client pleads.  Here is the latest news about how Sheriff Baca is going to release certain defendants much earlier than originally anticipated in his efforts to deal with the lack of beds to house all defendants who have received a county jail sentence.

http://tinyurl.com/738ysqp

In 2012, I will have practiced law as a trial attorney for 25 years.   A quarter of a century!  I cannot believe how quickly the time has passed.  During that time I have handled many hundreds of cases for individuals and enterprises.   During the first half of my career, I mostly represented creative individuals and entrepreneurs in business disputes concerning their intellectual and real property rights.  During the last several years, I have developed a blended practice of mostly criminal and some civil cases.  Every year I take to trial many cases, both civil and criminal.

To me, it really does not matter whether my client is involved in a civil or a criminal case.  The stakes are always high, and my commitment to passionately advocating for my client is the same.   In every case I accept, I look for the thread of humanity that runs through it.   It does not matter whether I am dealing with a white collar case where my client is accused of stealing millions of dollars, or a criminal case where my client is accused of murder.   In either scenario, I am always listening for the human dynamics that underlie what really happened here – the universal human themes that run through every case, whether it is filed by the government against an individual as a criminal case, or between individuals in a civil dispute.

At the heart of every case are the people and their story. From the first call from the client, to the closing argument in court, my primary focus is what really happened, because every case, whether civil or criminal, involves a human drama where the client is the star, and my job is to first understand and then tell their story in the most compelling, compassionate way.   The law and rules of evidence and procedure are a means to this end, the tools in my tool box.   My clients know that when they hire me, I will tirelessly work to prepare their case and collaborate with them so that they get their constitutionally-guaranteed day in court.

I believe that fundamentally we are the same, and that every court case involves the culmination of a larger drama written in the language of universal human experience. I like to spend a lot of time preparing with my clients so that I can learn as much as I can about what happened and the people involved in their case.  I immerse myself in their reality.  If I can truly understand what happened on an intellectual and an emotional level, then I can convey that to the jurors in a way that will resonate with them.  This is my gift to my clients, and my purpose in doing this work.

By now you have probably heard about AB 109, otherwise known as “Realignment.”  Realignment was signed into law by the governor and effectively transfers responsibility for non-serious, nonviolent and non-Pen C §290 registerable sex offenders from the state to the counties. Realignment applies to anyone who is sentenced on or after October 1, 2011.

Here are some examples of what realignment means:

Sentences for most felonies that are nonserious, nonviolent and nonregisterable sex offenses (so-called “non-non-non felonies”), if the defendant also has no prior serious, violent or registerable convictions, will now be served in the county jail.  See Pen C §1170(h)(2)-(3).

Felonies with non-specified terms in the underlying statute will be punishable by a term of 16 months, 2 years or 3 years in the county jail.  Pen C §§18; 1170(h)(1). Sentences for these offenses may include a period of county jail and a period of probation not to exceed the maximum possible term.  Pen C §1170(h)(5).

Counties may permit electronic monitoring in lieu of bail (Pen C §1203.018) or home detention in lieu of jail (Pen C §1203.016). Time on electronic monitoring or home detention counts toward mandatory minimum sentences. Pen C §2900.5.

Individuals convicted of a current or prior serious or violent offense,  who are required to register under Pen C §290 or whose sentence is enhanced under Pen C §186.11 (taking more than $100,000 under certain circumstances), must serve their current term in prison.  Pen C §1170(h)(3).

Individuals convicted of felonies punishable by a prescribed term of county jail in the underlying statute will not be supervised after release; there will be no period of parole.

Prison sentences for non-non-non felonies will be followed by a period of up to 3 years of Postrelease Community Supervision administered by the counties. Violations of Post Release Community Supervision can be punished in many ways, including flash incarceration.  Revocations must be done by a new Court Revocation Officer.   Pen C §§3450-3458.

Beginning July 1, 2013, the parole revocation process will become a county court-based process. Until then, parole revocations will continue under the Board of Parole Hearings.

The new criminal sentencing provisions and most of the post-release and parole provisions are operative on and after October 1, 2011.

ANSWER:    They are usually in jail as a result of drugs, alcohol, sex, a woman, or all or any combination of the above.

Most of our male clients are in legal troubles up to their eyeballs because of a woman, usually one they loved at one time (and usually one who is not their mother).   From the angry baby mama who snitched, to the underaged stepdaughter who lied to police about her stepdad’s alleged sexual advances, to the vindictive soon-to-be-ex-wife who fabricates a battery charge in order to send her husband back to state prison for a probation violation.    It’s not just a trend.  It’s a sad fact of the matter that dysfunctional human relationships are at the core of most criminal cases we defend.

If this sounds familiar, you don’t need just a good lawyer or legal technician.  You need a great lawyer.  You need a lawyer who gets it.

That’s what separates the good lawyers from the great ones.  Those who understand human dynamics and the stuff of human relationships, the universality of the personal issues which underlie each and every criminal case.  One who can communicate with you and communicate about you while in front of a jury.  One who will resonate with the jury and who can tell your story in a compelling, compassionate way so that not just you and he/she get it, but so that the jury can get it, too.

The lawyers who do that the best are highly empathic and persuasive, in addition to being very skilled at what they do.   They have not only been around a courtroom, but they have been around the block.

We get it.  Sure, we know the law (and when we don’t, we know where to look it up), but mostly we know human relationships.  It’s ironic that world renowned scientist Albert Einstein was reported to have said, “Work on humanity, and forget all the rest.”  That one thought drives us to a great extent in every case we defend – not only in understanding the true humanity of a client but conveying to the jury the very core of exactly what happened, and who our client is.

By Jennifer Gardner

I won a felony child abuse case (Penal Code Section 273a(a)) this past Monday afternoon in Compton.  After 5 days of trial, the Jury deliberated for two and one-half hours, before they returned a verdict of not-guilty for my client, who is by far one of the most courageous young women I have ever met.  She refused all offers to plead, believing steadfastly that she did not do anything wrong.  She placed her trust in me, and her faith in the jurors, and they did the right thing.  Justice was served, and I am honored to have been a part of that.  I am humbled and proud to have stood by my client, in what were probably the scariest days of her life, and that she chose me as her lawyer.  Results like these make the loss of sleep, the long hours, and the price of gasoline well worth it.

We are often consulted by clients who are accused of having improper sexual contact with minors. The scenarios they present are endless: they range from a grandfather who is accused of inappropriately touching his granddaughter’s friend, to same sex individuals where one is age 15 at the time of the alleged sexual conduct.

Clients often ask us what crimes they might be charged with, how long the government has to file a case against them, and how long a sentence they might have to serve if they are convicted of any of these crimes. These questions are relatively straightforward. The answers, however, are not, especially where the alleged victim was a minor at the time the sexual contact occurred.

Here is an overview of the law that applies.

Overview of Potential Liability (or what claims could be alleged, what is the potential sentencing exposure and, what is the applicable statute of limitations):

Preliminarily, when computing statute of limitations in criminal matters, you must look at the potential sentencing exposure should there be a conviction. The length of the potential sentence often determines the statute of limitations. As you will see below, this is complicated when the crimes involve a minor (i.e., a person under the age of 18) and there is a wide age gap between the “victim” and the perpetrator.

The penalties for violating California’s “lewd acts with a minor” law vary, depending on the age of the child (and possibly the age difference between you and the minor), the specific facts of the case (for example, did the act involve force or violence?), and your criminal history. These factors will determine the length of any prison sentence that prosecutors could seek.

If prosecutors charge you with child molestation when the alleged victim is 14 or 15 years old, and if you are at least ten years older than the minor, the charge is what’s known as a wobbler. A “wobbler” can be filed as either a misdemeanor or as a felony. The only true difference between misdemeanor and felony sentencing for a “lewd acts with a minor” charge lays in (1) the fine, and (2) the potential jail/prison sentence. Misdemeanor child molestation subjects you to a maximum one-year county jail sentence and a maximum $1,000 fine. Felony charges subject you to one to eight years in state prison and a maximum $10,000 fine. In the event that you are significantly older than the minor in this case, you most likely will be charged with a felony. If you are convicted, you would most likely be sentenced to state prison (as distinguished from county jail) where you would serve your sentence.

Additionally, you face the following penalties which pertain to violating any California “lewd acts with a minor” law: Penal Code section 290 lifetime registration as a sex offender; a requirement that you pay for any medical or psychological treatment that the minor incurs as a result of the offense; and an additional and consecutive five-year state prison sentence if the minor suffers great bodily injury because you use force or violence during the offense (“great bodily injury” is significant or substantial physical injury).

You may be charged with Unlawful Sex with a Minor per Penal Code § 265.1 which provides, in pertinent part, as follows:

(a) Unlawful sexual intercourse is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor. For the purposes of this section, a “minor” is a person under the age of 18 years and an “adult” is a person who is at least 18 years of age.

(b) Any person who engages in an act of unlawful sexual intercourse with a minor who is not more than three years older or three years younger than the perpetrator, is guilty of a misdemeanor.

(c) Any person who engages in an act of unlawful sexualintercourse with a minor who is more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison.

(d) Any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison for two, three, or four years.

You may also be charged with Rape in violation of Penal Code § 261. In that event, provided the prosecution alleges that the alleged victim did not consent, the potential sentences are as follows:

(c) (1) Any person who commits rape in violation of paragraph (2) of subdivision (a) of Section 261 upon a child who is under 14 years of age shall be punished by imprisonment in the state prison for 9, 11, or 13 years.

(2) Any person who commits rape in violation of paragraph (2) of subdivision (a) of Section 261 upon a minor who is 14 years of age or older shall be punished by imprisonment in the state prison for 7, 9, or 11 years.

Another potential count that could be filed would be for violation of Penal Code § 269, or Aggravated Sexual Assault of a Child, which provides as follows:

(a) Any person who commits any of the following acts upon a child who is under 14 years of age and seven or more years younger than the person is guilty of aggravated sexual assault of a child:

(1) Rape, in violation of paragraph (2) or (6) of subdivision (a) of Section 261. (2) Rape or sexual penetration, in concert, in violation of Section 264.1. (3) Sodomy, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d), of Section 286. (4) Oral copulation, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d), of Section 288a. (5) Sexual penetration, in violation of subdivision (a) of Section 289.

(b) Any person who violates this section is guilty of a felony and shall be punished by imprisonment in the state prison for 15 years to life.

(c) The court shall impose a consecutive sentence for each offense that results in a conviction under this section if the crimes involve separate victims or involve the same victim on separate occasions as defined in subdivision (d) of Section 667.6.

There are also a variety of offenses that are related to Penal Code § 288 Child Molestation either because they are frequently charged in connection with a count for Lewd Act with a Minor, or are part of a Penal Code § 288 charge. These are the most common examples:

- California Penal Code § 288.2 – Harmful Matter Sent with the Intent of Seduction of a Minor: If you knowingly send or email erotic material to a minor with the intent of arousing yourself or the minor, you may be convicted of Penal Code § 288.2. An example would include chatting online with a child you believe to be 12 years old, and then emailing him/her a nude photo. This crime can be punished as a misdemeanor or felony, subjecting you to a county jail or state prison sentence.

- California Penal Code § 288.5 – Continuous Sexual Abuse of a Child: This crime involves engaging in three or more “acts of lewd or lascivious conduct” over a period of three months or longer, with a child under 14 years of age. A person convicted of Penal Code § 288.5 faces between 6 and 16 years of state prison.

- California Penal Code 243.4 - Sexual battery: Penal Code 243.4 “sexual battery” prohibits touching the intimate part of another for sexual arousal, gratification, or abuse. The difference between this law and Penal Code § 288 “lewd acts with a minor” is that “sexual battery” makes no mention of the victim’s age. If the minor was 14 or 15 and less than ten years younger than you or was 16 or 17, this is the offense with which prosecutors would likely charge you. A “sexual battery” charge may be filed as either a misdemeanor or as a felony.

How Statutes of Limitations are Computed For “Sex Crimes:”

The applicable statute of limitations is determined by reference to the maximum punishment possible under the statute.

If an offense is not punishable by death or imprisonment in a state prison, i.e., if it is a misdemeanor, the statute of limitations is ordinarily one year. See Penal Code § 802; People v Mincey (1992) 2 Cal.4th 408. For an offense punishable by imprisonment in a state prison for less than 8 years, the statute of limitations is ordinarily 3 years. See Penal Code § 801.

The statute of limitations that applies to a “wobbler” (a crime that may be charged either as a misdemeanor or as a felony) that is charged as a misdemeanor is determined by reference to the maximum felony sentence. See Penal Code § 805(a). When a misdemeanor is charged as a felony because of prior convictions, the felony statute of limitations applies. See Penal Code § 801; People v San Nicolas (1986) 185 Cal.App.3rd 403. If an offense is punishable by imprisonment of 8 years or more, the statute of limitations is ordinarily 6 years. See Penal Code § 800. [There is no statute of limitations for an offense that is punishable by death, imprisonment in state prison for life, or imprisonment for life without possibility of parole, or for an offense involving embezzlement of public money. See Penal Code § 79.]

There are some important exceptions to these rules, including cases which involve sex crimes against victims under 18 at the time of the offense (see Penal Code §§ 801.1(a) and 803(f)) and sex crimes when the suspect’s identity is later conclusively established by DNA testing (see Penal Code § 803(g)). Although the statute of limitations generally begins when the offense is committed (see, e.g., Penal Code § 802), for some crimes it does not begin to run until the crime is discovered. Penal Code § 803(c).

How the Time the Offense Occurred Impacts the Case Where Sex Crimes Are Alleged:

Although the charging document (which can be what’s called a complaint, information, or indictment) need not allege the exact date upon which the offense occurred, it must allege facts showing that the prosecution is not barred by the statute of limitations, and if the time elapsed exceeds the statute of limitations, the charging document must allege further facts, e.g., the defendant’s absence from the state for a sufficient period to toll the statute under Penal Code § 803(d). See also In re Demillo (1975) 14 Cal.3rd 598.

The following is an excerpt from the seminal handbook California criminal lawyers use on a daily basis, CALIFORNIA CRIMINAL LAW PROCEDURE AND PRACTICE (2011 ed.), which discusses how timing issues are problematic, especially in child sexual abuse cases:

Pleadings in cases involving repeated or continuous acts of child sexual abuse present special problems for the defense because the charging document may be vague about when the offense occurred, e.g., Count 1: a violation of Pen C § 288(a) between September 1, 2003, and December 31, 2003. The California Supreme Court has upheld such generic accusatory pleadings against due process challenge. See People v Jones (1990) 51 C3d 294, 317, 270 CR 611 (generic child molestation pleading does not deprive defendant of due process rights to notice and to present defense).

In Jones, the court observed that the defendant had a variety of procedural remedies to test the pleading, such as demurrers and pretrial motions to set aside the information or indictment (Pen C § 995 motion). 51 C3d at 320. However, the decision in People v Jennings (1991) 53 C3d 334, 356, 279 CR 780 (no due process notice violation in information that alleged offense occurred “on or about the summer of 1983”) suggests that a demurrer to generic child molestation charges is not likely to be successful. Defense counsel should demur but should also be prepared to pursue pretrial motions to dismiss under Penal Code § 995 (see chap 13) and to require the prosecutor to elect the specific incident on which he or she is relying to prove a particular count. See § 31.33. At trial, counsel should request a jury unanimity instruction. See CALCRIM 3550. See also People v Jones (1990) 51 C3d 294, 321, 270 CR 611.

“I think that any high-profile case exposes routine police work, and when you get into the guts of routine police work it is often not a pretty picture.”

EUGENE J. O’DONNELL, a professor of police studies at John Jay College of Criminal Justice, on the handling of the Strauss-Kahn case.

Bob Dylan turned 70 on May 24, 2011.On the occasion of his birthday, National Public Radio ran a great piece documenting how “Bob Dylan’s song lyrics are used more than any other writer’s in court opinions and briefs. . . [it] chronicles the artist’s influence on today’s legal community. From U.S. Supreme Court rulings to law school courses, Dylan’s words are used to convey messages about the law and courts gone astray.”

Listen here: http://tinyurl.com/3fxmxms.>

As it turns out, the Rolling Stones are the second most quoted band.  Can you guess what line courts use the most?  ”You Can’t Always Get What You Want.”

Thank you BitterLawyer for your humor about the legal profession. Even people who are lawyers and people who need lawyers could use a good laugh. Click on the links below to see what I mean:  The first must see:  3hda9ao

and the second…….     43wyufy

This story is c r a z y!  http://tinyurl.com/63esfwo Check out this story about a solicitation-for-murder case in Florida.