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Except for DUI's the CA Legislature has authorized a diversion program that allows for persons charged with certain non-violent and non sex offender misdemeanors an option to participate in a deferred entry of judgment or diversion. This means that upon completion of certain terms and conditions set by the court, a judge will dismiss the case. There are exclusions that apply if a person had another misdemeanor conviction within the last 10 years or a charge of violence/ force or a felony. If a person previously sought relief from this provision, they are ineligible. If the conviction makes incarceration mandatory, they are excluded. People who are required to register as a sex offender cannot invoke this provision for relief. If the victim is a minor or dependent adult, then there can be no deferred entry of judgment. Also, if the defendant is a partnership, corporation or a legal entity ( not a person), they cannot benefit from diversion. If the misdemeanor was reduced from a felony pursuant to 17 (b), they cannot benefit from diversion. If the charge involves a force against a peace officer, unlawful use or sale of firearms, a DUI, vehicular manslaughter, an active gang member, a charge of domestic violence on a spouse/partner, or workplace safety crime, they are excluded from diversion. Even if the prosecutor claims a defendant is ineligible, attorneys at Walk Free Law can file a motion for consideration by the court to ultimately decide, based on the specific facts of the case, whether or not someone charged with a misdemeanor can seek relief by deferred entry of judgment (dismissal upon completion of certain terms and conditions set by the court). Call our office for a free consult today (323) 507 -6093.
It is a known prosecutorial tool to seize assets as a part of criminal forfeiture proceedings in federal court. When a defendant's money and assets are frozen by the court, is there anything that can be done to obtain funds to help pay for counsel? In fact, this can happen before a defendant is even aware that they have been charged with a crime. A prosecutor can proceed ex parte (unilaterally) to freeze any and all bank, investment, retirement and real property.
The answer to this question is, yes! Attorneys at our office know how to use the "freeze and seize" statute in your favor. Penal Code 186.11 can be used against you to wrongfully deprive an individual from the right to counsel. In a recent United States Supreme Court Case, Luis v. United States, the justices ruled that the 6th Amendment right to assistance of counsel outweighs the interests of the government and victims in securing restitution. The US Supreme Court ruled that holding up assets prior to trial violates the Sixth Amendment because a defendant cannot retain their counsel of choice. The court also made a distinction between "tainted" property and "untainted" property.
In California, the court is allowed to seize (pretrial) up to three times the amount of the alleged loss. But upon argument, attorneys can persuade a court to consider the release of funds for attorney's fees in connection with the criminal proceeding, weighing the needs of the public to retain the property against the needs of the defendant to a portion of the property. Under Luis v. United States, a criminal defendant has an absolute right to use "untainted" assets for attorneys fees. Call our office today at (323) 507 -6094 to see what can be done in your specific case. Don't let the prosecutors bully you into not hiring counsel of your choice!
The typical scenario involves a missed court date. A judge may issue a bench warrant when there is a failure to appear on a certain court date. A bench warrant may also be issued for failure to pay a fine and failure to obey any other court order.
It is best to have an attorney present with you to avoid being taken into custody. A qualified and experienced attorney will know how to "quash" the bench warrant by asking the court to set it aside. The attorney will have to advance the case on the court's calendar as soon as possible. The risk of police coming to arrest you in your home, at your place of work, or getting arrested and taken into custody for an outstanding bench warrant in general is terrifying. If you are simply pulled over for a minor traffic infraction and there is an outstanding bench warrant you can be taken into custody. Don't risk the consequences of being taken into custody and having to post bail and possibly pay fines. Call for a free consultation today!
If a person has been released on recognizance (OR), and has failed to appear for a necessary court date a prosecutor may add a Failure to Appear charge as an additional misdemeanor. To be convicted, the prosecution must prove the accused had intent to "evade the court process". The District Attorney may be able to show evidence of this intent if you have failed to appear for more than 14 days.
Penal Code 1320 is the relevant statute for a failure to appear charge, but its consequences differ depending on whether your underlying court case is a misdemeanor or felony. A failure to appear on a misdemeanor case carries consequences of up to 6 months in county jail. A failure to appear on a felony case in which a party has been released on recognizance carries consequences of a felony Failure to Appear charge with a possible state prison term. It also carries a potential fine of $5,000. If a party posted a bond (out on bail), and they fail to appear on a felony charge, the fine can be up to $10,000.
A SERNA or Doggett Motion may be appropriate to argue that it is the government's fault for failure to bring you to court where there was an outstanding warrant, for a long period of time, they had notice of your whereabouts, yet they failed to bring you to jurisdiction process in a timely fashion, especially in instances where they could have taken you into custody and they failed to do so. It basically argues that the government, for sleeping on its rights, violated the defendant's rights to a speedy trial and the defendant has now been prejudiced because of the passing of time, missing witnesses, lost evidence due to fading memory and other articulated facts which can persuade the court that the defendant has been duly prejudiced by the delay in prosecution.
SERNA motions can be argued successfully to dismiss charges all together depending on the circumstances of the case, regardless of how many outstanding warrants you have on your recorsd.
Home Detention is an alternative to jail under Penal Code 1203.016. It is a viable option for minimum security inmates and low-risk offenders committed to a county jail or other county correctional facility. It is also an option for an inmate to participate in a work furlough program. The court may restrict or altogether deny a defendant's participation in a program but it has no authority to order placement. Any county's board of supervisors may authorize this program. If authorized, it allows a person to remain inside their home during set hours and this person may even be allowed to seek employment, counseling, education, medical or dental assistance, or training classes. Credit for time spent under home detention is considered days spent in custody for the purpose of giving credit for time served and for good time and work time. Call our office today to see if you or a loved one are facing a sentence and want to explore home detention alternatives
If the court grants a 1203.4 petition for relief, your conviction is deemed "dismissed" and you do not have to report this in an application to a private employer (except for government employers/agencies). Depending on the facts, a party that has had a 1203.4 dismissal allows one to say on an application that they do not have any convictions on their record. In certain situations, 1203.4 relief is not a perfect remedy because if an applicant's DOJ (Department of Justice) record is pulled, it will indicate there was an arrest and say the case was dismissed per 1203.4. If appropriate, one should seek relief by sealing arrest records. Sealing your arrest records required proof that you were factually innocent. A Petition for Factual Innocence (PFI) can be granted if you were arrested and not charged with a crime. A Petition for Factual Innocence may also be granted if charges were filed after the arrest if there was a dismissal or acquittal. The Petition for Factual Innocence must be filed within 2 years of the arrest or filing of the charges, whichever is later. If granted, it has the effect of sealing all arrest and prosecution records (fingerprints, mugshots, DOJ records) for 3 years after which they are physically destroyed. An experienced attorney at our office can help determine whether you are eligible to have your records sealed and expunged. If a hearing is granted, the prosecution may oppose and it is important to present all evidence including declarations and other reliable evidence showing "factual innocence" including good character letters. Call our office today for a free consultation
When a person is convicted of a crime and the court opts to sentence them to "execution of sentence suspended", this means that if that person violated any term of probation, the sentencing for the probation violation is already pre-set in the event probation is revoked. However, if a convicted person is sentenced to "imposition of sentence suspended", the state prison sentence is suspended under 1170 (h). In the event of a probation violation, there is no pre-set term of incarceration if the court decides to revoke probation. "Imposition of Sentence Suspended" is commonly known as "joint suspension". The differences between "joint suspension" and execution of sentence suspended may impact sentencing in the event of a probation violation and the Cour'ts ability to reduce a felony charge to a misdemeanor if an individual is eligible for relief under 1203.4.
Once probation is successfully completed, an individual may be eligible to have the conviction dismissed pursuant to 1203.4. If the conviction was for a crime considered to be a "wobbler" (a crime that can be charged either as a felony or a misdemeanor), the Court may or may not be able to reduce a felony charge to a misdemeanor before dismissing the charge outright. This depends on whether there was a "joint suspension" or "execution of sentence suspended". Call our offices today if you or a loved one have been convicted to explore your options.
In April 2011, Governor Jerry Brown signed Assembly Bill 109 (AB 109- Public Safety "Realignment"). This had a huge impact for people convicted of non-serious, nonviolent or non-sex felony charges from state prisons and parole to county jail and probation. In 2011, The Supreme Court decision in Brown v. Plata ruled that the prisons were so overcrowded that medical and mental health care were inadequate and therefore, unconstitutional. California had to decrease it prison population within two years from 150,000 inmates to 110,000. Thus, individuals convicted of nonviolent or non-serious felonies are able to serve their sentence in county jail (instead of state prison), on felony probation or on a split sentence (where part of the term is served in jail and part under supervision by the county probation department). For an individual who received a split sentence, once released from county jail they must undergo "mandatory supervision" by the probation department. In some instances, split sentencing will not change the length of the sentence, but simply split the time between jail time and mandatory supervision by the probation department. However, a person sentenced under 1170 (h) will still have a "prison prior" even if he served his custodial time in local custody (county jail). Contact our law offices if you our your loved one are facing felony charges to see if you they qualify for split-sentencing.
Proposition 47 reduced certain property and drug offenses from felonies to misdemeanors. The Act allows for resentencing for defendants currently serving felony sentences under prior law. In People v. Brown, the Court of Appeals decided the issue of whether the a defendant was ineligible for resentencing under Prop 47 when they were convicted by a guilty plea. Apart from categorical disqualifications found in the statute: serious or violent felonies, defendants required to register as sex offenders, and defendants found to pose an unreasonable risk of committing a new violent crime, the statute does not disqualify a petitioner under Prop 47 simply because they were convicted by a guilty plea. The conclusion was that the subsequent decision by the Legislature to amend the law may have the effect of altering the terms of the plea agreement in spite of arguments that the People were deprived of the benefit of the bargain. 2016 S.O.S. 940
Prisons are frequently used to house the mentally ill when they are not equipped to deal with these issues. There needs to be appropriate placement in mental health facilities for treatment. This revolving door is costing millions of dollars annually with increasing risk and jeopardy to the physical and mental well being of those inappropriately incarcerated. Navigating through the Mental Health Court requires dedicated advocacy and "out-of-the-box" strategies. The Lanterman-Petris-Short Act ("LPS") codified in the Welfare and Institutions Code (§§ 5000 - 5550) covers services to individuals who are "gravely disabled." What does this mean? This includes individuals who are in need of treatment but are unwilling or incapable of accepting it voluntarily and individuals who are recommended for conservatorship by the professional in charge of an LPS evaluation or treatment facility designated by the county.
Coordinating with medical professionals, family members, and the Public Guardian's office is no easy task. There are many actors involved and the bureaucracy and red tape just piles on. Our professionals are prepared to work with the courts and staff to establish the need for treatment and placement in an appropriate Institution for Mental Disease (IMDs). Our office is experienced and dedicated to obtaining firm results for our clients. Call for a free consult today.
Alana Yakovlev is a stellar trial lawyer with a heavy emphasis on criminal defense and civil rights. Rated one of the top trial attorneys in the country, Ms. Yakovlev's advocacy leads to immediate and effective results for her clients.
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