Saturday, August 28, 2010

Domestic Violence Does Not Discriminate

Domestic violence, also known as spousal abuse, domestic abuse, or initimate partner abuse is common in all economical, environmental and racial classes of society. Like the DUI, domestic violence does not discriminate. It is as common in the three million dollar home in Newport Beach as in the eight hundred dollar apartment in other areas of Orange County. It wears a tie or a uniform, it works 9-5, not at all, or is a CEO. It is a fact of society.

Domestic violence may be charged in a criminal complaint, when brought to the attention of law enforcement, in various formats. When an injury occurs, the most common charge filed is a violation of Penal Code section 273.5, willful infliction of corporal injury. This charge requires that there be some sort of dating relationship, or past dating relationship between the parties. It also requires that there is an injury, whether minor or serious, caused by physical force. A defendant in a criminal matter may be facing the less serious of charges, a misdemeanor or, the most serious, felony charges. The determination of whether a misdemeanor or felony is charged may depend on the nature of the injury and/or the person’s previous record – has the person been arrested and/or charged with a similar charge in the past.

If the accused is charged with a felony, the sentence may include a prison sentence of two, three or four years. However, if there are sentencing enhancements also alleged, the person may be facing a longer prison sentence. Sentencing enhancements would be if the injury was considered “great bodily injury”, or if a gun was used, or if the person has a previous felony record which may increase the prison term.

If the injury is minor, more often then not, the accused shall be charged with a misdemeanor offense. This particular defendant may face a fifty-two week batter’s treatment program, community service, fines to the court and to the county’s domestic violence shelter, along with a county jail sentence.

There are a number of additional charges that may also be filed in a domestic violence case such as battery, stalking, tampering with a phone line, terrorist threats, child abuse, to name a few.

Regardless of the charges, a person accused in a domestic violence case should be aware of their rights, the possible consequences they are facing, and the various defenses. The accused should not have the attitude that they “just want to get it over with”. This is a situation that may haunt the suspect for life by way of the penalty, the restraining order that the Judge will order which will not allow contact between the parties, and the criminal record that will remain with the person for life. If you find yourself in this situation and need help, please contact me immediately for a free consultation.

Wednesday, August 11, 2010

Proposition 19, the legalization of marijuana in California

Proposition 19, the legalization of marijuana in California, would allow for the possession, cultivation and transportation of marijuana by those who are 21 years of age or older. Although legalization will result in regulation and taxation, these are necessary in order for the decriminalization of marijuana to occur. Compare this to the prohibition of alcohol – would one rather drink alcohol without taxation and regulation, but subject to arrest, prosecution, jail, and a criminal record tainting your future; or be subject to marijuana taxes and regulations?

Currently, simple possession of marijuana (less than an ounce) consists of an initial detention by law enforcement which could culminate in a variety of additional charges. For example, one is stopped by the police for speeding. “I smell marijuana” says the officer, “everyone out of the car”. John has less than an ounce in his pocket and is given a citation. Bob, Mr. Tough Guy, decides to run, is tackeled, fights back, and ends up in jail for battery on a police officer. Jane has an outstanding warrant and is arrested, and Sue, the driver, has been held at the scene and now is late. If Proposition 19 passes this scenario would not happen unless Sue was under the influence of marijuana and then arrested for a DUI.

The sentence for possession of less than an ounce of marijuana may be a fine and a class, but the criminal record is the real punishment. Employment and other such licensing or educational applications may be affected by what was a “simple” possession. In addition, one plant in your home or garden is a felony without any applicable statute available for misdemeanor prosecution. More than an ounce is also a felony offense. Proposition 19 would decriminalize these fact patterns.

Many defendants who are charged with simple marijuana offenses may find that going to court without a criminal defense attorney is more economical. However, what seems like a simple resolution (a fine and/class) may affect ones future.

How are you going to vote – for or against prohibition?

Criminal Defense Blog

visit my website at: for more legal articles, information and access to free consultation.

Proposition 8 in California - Legal Perspective

August 4, 2010, an unforgettable day in history for California and maybe for the United States, when Judge Vaughn Walker struck down the unconstitutional Proposition 8. “The evidence shows that the movement of marriage away from a gendered institution and toward an instution free from state-mandated gender roles reflects an evolution in the understanding of gender rather than a change in marriage.”

In November 2008 Proposition 8 passed by a bare margin of 52 to 49 percent in California, abolishing the ability of same-sex couples to marry. This proposition, confusing at best, decried that a “yes” vote would actually say “no” to the right of same-sex couples to marry. During the time it was legal for same-sex couples to marry, May to November 2008, eighteen thousand same-sex couples married.

Once Prop. 8 passed, Perry v. Schwarzenegger was filed with the California Supreme Court challenging the passage of Prop. 8. Although I am an Orange County criminal defense attorney, I, along with many others, took part in filing what’s called an amicus brief. These briefs are filed as “friends of the court” to give additional support for one side or the other. Unfortunately, the California Supreme Court allowed Prop. 8 to stand, but thankfully kept intact the married 18,000.

The case was then filed in the U.S. District Court where opponents of Prop. 8 argued important issues as equal protection and due process. Judge Walker presided over the matter hearing evidence and arguments from both sides. Judge Walker found that Prop 8 violates the Constitution and voters do not have the right to create unconsitutional law. Marriage between same-sex couples has been stayed pending Judge Walker’s review of further briefs which were filed on Friday, August 6, 2010. Judge Walker will decide if the stay will continue through the appeal process to the Ninth Circuit and then onto the United States Supreme Court where the Supreme Court may or may not accept the case. This appeal process could take years. In deciding whether to lift the stay, Judge Walker must decide if the proponents of Prop. 8 have a likelihood of prevailing with their appeal. If not, Judge Walker will lift the stay and same-sex couples may enter into a civil marriage.

Evolve people. The 18,000 married same-sex couples of 2008 have not ruined the sanctity of marriage. More importantly, “marriage” is more than any moral classification. “Marriage” is a legal classification that protects the family unit from inequalities set by institutions and governments based on history and insitution of the word. One cannot substitute the word “marriage” for any other word and expect equality.