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Currently, anyone arrested in California on suspicion of committing a felony is subject to having a DNA swab taken of them. The DNA contained on the swab is then entered into a national database, called the Combined DNA Index System (CODIS). The CODIS database system has helped to revolutionize criminal investigations, allowing law enforcement agencies around the country to exchange information, generate leads, and link crimes to known offenders.
Nevertheless, being charged with committing any crime, let alone a felony (which typically carries with it a prison term of at least one year), does not entail an elimination of every right an individual possesses and retaining the services of an experienced criminal defense attorney can help to ensure that not only are those rights not infringed but that the individual has a fighting chance to combat the charges against him.
Recently, the State of California was sued for its requirement that law enforcement agents not only collect but keep, the DNA profile of anyone arrested for a felony, regardless of whether that individual is ultimately convicted.
A discussion of the legal requirements for taking a DNA sample of an individual and circumstances in which the sample can be expunged will follow below.
California DNA Collection Law
As alluded to above, pursuant to California law, any adult individual arrested for any felony offense is subject to DNA collection in California.
Additionally, DNA samples may also be collected from the following individuals, regardless of age:
An individual who is convicted and/or adjudicated of a misdemeanor, but who has a prior felony record;
An individual currently in custody or on probation, parole, or another supervised release after a conviction for any felony offense which was committed prior to November 3, 2004; and
An individual is currently on probation or any other supervised release for any offense with a prior felony record.
Additionally, individuals convicted and/or adjudicated of various misdemeanor offenses may also have a DNA sample collected. These offenses include convictions for arson, and any misdemeanor offense requiring sex offender registration.
What is DNA Expungement?
Upon request to the California Department of Justice (CADOJ), certain individuals may be eligible to have their DNA expunged. If granted, the DNA sample will be destroyed, and any record of it, or the information contained within the record, would be unavailable for search through either the State database or CODIS.
The following individuals are eligible for DNA expungement:
Individuals who have had no charges filed against them;
Individuals who provided a DNA sample due to an arrest for a felony, but the prosecutor choose to file misdemeanor charges instead;
Individuals who have had their matters dismissed were found not guilty, or have had a Court of Appeal overturn their conviction;
Individuals who successfully completed a diversion or deferred entry of judgment program; and
Individuals who were found factually innocent of the underlying offense.
If the CADOJ denies an individual’s request to expunge his/her DNA, that individual may petition a judge to do it. An experienced criminal defense attorney can help fight for removal.
Speak to a Criminal Defense Attorney
If you have been charged with a felony, contact the criminal defense attorneys at Manshoory Law Group, APC as soon as possible. The attorneys understand the stress and consequences you face and will work to prepare the most effective defense to counter the charges against you.
Attorneys are available 24/7 to take your call. Contact our attorneys for a free case analysis.
Being accused of a crime is serious, and if that crime is rape or sexual assault, in today’s environment, it can seem like everything is stacked up against the accused. Due to the intimate nature of rape, in which there typically are only two persons involved, proving nonconsensual sexual activity relies on one person’s word against the other’s, as well as the results of tests on the body of the victim.
These statements and tests can appear to be irrefutable, but retaining the services of an experienced criminal defense attorney, with expertise in defending crimes of a sexual nature, can help to counter these statements and tests.
One type of test is known as a rape kit, which, essentially, is a test used by medical personnel for gathering and preserving physical evidence on the victim following an allegation of sexual assault. Recently, however, evidence has emerged about the destruction of rape kits, which has caused the number of rape and sexual assault allegations to go unpunished. As a result, many jurisdictions, including California, are passing laws prohibiting the destruction of rape kits until the statute of limitations has passed, meaning some individuals may be charged well after any alleged sexual assault occurred.
A discussion of the recently-passed California law regarding child rape, as well as how to combat a rape or sexual assault charge, will follow below.
Sexual Assault Victims’ DNA Bill of Rights
In an attempt to ensure that rape kits are not destroyed before the statute of limitations has expired, the California Legislature passed the Sexual Assault Victims’ DNA Bill of Rights. This law is applicable to any facility that preserves rape kits and requires them to conduct an audit of all untested kits in their possession and report the results to the California Department of Justice. Part of this report is an indication as to whether the assault was reported to a law enforcement agency. Presumably, this is to ensure that, if the statute of limitations has not expired on an allegation of sexual assault, one can still be made.
Defending Against Charges of Child Rape in California
As alluded to above, while it may seem that the deck is stacked against one accused of rape or sexual assault, there are some typical defenses that one may use to combat an accusation.
Some of the more common defenses include:
False accusation;
Lack of sexual contact;
Consensual sex, including an honest and reasonable belief that the accuser consented;
Insufficient evidence; or
Mistaken identity.
It is important to note that being too intoxicated, meaning the accused did not know what he/she was doing, is not a defense to a sex crime in California if the intoxication was voluntary.
Besides asserting the defenses listed above, some of the more typical ways in which an accused individual can defend against a charge of rape or sexual assault include:
Given that sexual assault is a “he said, she said” situation, it can be fruitful to negotiate with law enforcement and explain the accused’s version of the events;
Alternatively, conducting a private investigation into the event may help illustrate, for example, the defense of mistaken identity; and
Although not typically admissible in court, polygraph results may sway the prosecutor into dropping the charges.
If the above strategies are not successful, a defendant, especially a first-time defendant, can potentially lessen the damages by pleading guilty in exchange for a more lenient sentence. Additionally, if found guilty, an accused individual can try to mitigate his/her sentence by presenting evidence such as a lack of prior convictions. An experienced criminal defense attorney can help devise an effective strategy in response to these allegations.
Speak to a Criminal Defense Attorney
If you have been charged with rape or sexual assault, especially one in which a rape kit was involved, contact the criminal defense attorneys at Manshoory Law Group, APC as soon as possible. The attorneys at our office have an extensive knowledge base of and experience in criminal defense, including dealing with delayed charges as a result of delayed rape kit processing.
We will work with you to prepare the most effective defense to counter the charges against you. Attorneys are available 24/7 to take your call. Contact us today for an initial consultation.
Being charged with a crime is not, to say the least, a pleasant experience for anyone. Some liberties and freedoms, which we, as Americans, have fought for, are suspended, at least temporarily and potentially more long-term, while the legal process works out whether the defendant is guilty. Retaining the services of an experienced criminal defense attorney can help make the legal process go as smoothly as possible.
However, other aspects of an individual’s life are also affected as a result of being charged with a crime. Specifically, individuals who have been charged with money laundering may find that they may not be permitted to purchase a house in an all-cash transaction. Recent federal law now requires that real property cash purchasers prove their identity, and those with previous allegations of money laundering may now be more highly scrutinized when attempting to purchase a house via an all-cash offer.
A discussion of California’s money laundering law, its punishments, and possible defenses will follow below.
What California Law Says About Money Laundering?
In essence, money laundering is the act of concealing the transformation of profits from illegal activity into legitimate assets. An issue associated with engaging in certain criminal activities is what to do with the financial proceeds of, or money resulting from, the criminal activity so that it does not arouse suspicion. Consequently, some look to launder, or clean, the money. Once this occurs, the money may be used in the mainstream economy.
Law enforcement takes steps to detect the laundering of money before it has concluded, and in California, money laundering consists of the following elements:
The completion of a transaction, or a series of transactions, through a financial institution;
In which the total amount of the transaction is more than $5,000 in a seven-day period or more than $25,000 in a 30 day period; and
The transaction was made with the intent to promote criminal activity, or the defendant knew that the money was from the proceeds of criminal activity.
What is the Average Sentence for Money Laundering?
In California, money laundering is a wobbler crime. This means that the prosecutor may choose to charge a defendant with either a misdemeanor or a felony, depending on the defendant’s previous criminal history, as well as the facts of the case.
If the prosecutor chooses to charge the defendant with a misdemeanor, the penalties can include up to one year in jail and/or a fine of up to $1,000. If the prosecutor desires to charge the defendant with a felony, the penalties can include between 16 months and up to four years in jail, and/or a fine of up to the greater amount of either $250,000 or twice the amount of the money laundered(or $500,000 or five times, if the defendant has had a prior conviction for money laundering).
Further, California law provides for increased jail sentences correlated with the amount of the transaction. Thus, the more money laundering, the greater the potential jail sentence.
What are the Legal Defenses?
The primary defense to a money laundering charge is that the defendant did not know the money came from criminal activity. This is sometimes referred to as a mistake of fact defense and can be used by banks and other financial institutions who provide banking services and are not part of a money-laundering scheme to avoid prosecution.
Another potential defense is that the defendant lacked the intent to launder money.
Get Professional Legal Help With Your Money Laundering Charges
If you have been charged with money laundering, contact the criminal defense attorneys at Manshoory Law Group, APC as soon as possible. The attorneys at our office have extensive knowledge of criminal defense, including white-collar crimes like money laundering.
As alluded to above, charges of money laundering can have negative effects on other aspects of your life, so it is important to aggressively defend against these charges, and the attorneys at the Manshoory Law Group will do just that, helping you to get your life back on track.
Attorneys are available 24/7 to take your call. Contact us today for an initial consultation.
This autumn, news in the Golden State is almost exclusively about the wildfires that have wreaked havoc across thousands of acres. As this tragic story plays out, many people have been displaced, and in some instances, their houses have been destroyed. Coupled with this tragedy is the new issue of looters.
However, while there may be some individuals looking to profit off the fact that people’s belongings are now out in the open, there are nevertheless some individuals who have been accused of looting who are not as guilty as law enforcement may believe. Retaining the services of an attorney with expertise in criminal defense, including burglary and petty and grand theft, can be crucial to ensure that an individual accused of looting can adequately combat those charges.
Recently, an article in the Sacramento Bee illustrated the concern that some residents have had regarding looting in their fire-ravaged neighborhoods. A discussion of looting, in general, as well as penalties and common defenses, will follow below.
What Are the California Looting Laws?
In California, looting is covered by Chapter 463 of the California Penal Code. Recognizing that, during riots, natural disasters, and other states of emergencies, there is always a risk that individuals will take advantage of the chaos around them and engage in theft, the California Penal Code considers looting an illegal act if the following elements are established:
An intentional act of commercial burglary, petty or grand theft, or grand theft of a firearm;
During a state of emergency.
Thus, essentially, looting is actually the commission of another crime (burglary, petty or grand theft, or grand theft of a firearm) during the existence of an emergency. It should be noted that the emergency can be natural, like an earthquake, flood, or other natural disasters, or it can be manmade, like a riot or unlawful assembly.
What are the Penalties for Looting in Los Angeles?
As mentioned above, since looting is connected with committing another theft crime under specific circumstances, the penalty for a charge of looting is based on the underlying charge. Thus, looting can be charged as either a felony or a misdemeanor, depending on the specific facts of the case.
Anyone convicted of looting may incur one of the following punishments:
For petty theft, looting is a misdemeanor, which carries a minimum of 90 days in jail and a fine of up to $1,000.
For burglary or grand theft, wobbler crimes in California, an accused individual can be charged with either a felony or misdemeanor, dependent on the individual’s previous criminal history and the facts surrounding the looting charge. The maximum sentence for a misdemeanor conviction is 364 days in jail and a fine of up to $1,000. A felony conviction can result in a sentence of 16 months in jail, two or three years in prison, and a fine of up to $10,000.
For grand theft of a firearm, the charge will be a felony which carries a sentence of 16 months, two or three years in jail, and a fine of up to $10,000.
Possible Defenses To Looting Charges
As with all crimes, defenses are available. Some of the more common defenses include:
Lack of intent (an individual must intend to commit burglary, petty or grand theft, or grand theft of a firearm);
During the arrest, law enforcement violated the individual’s civil rights, such as conducting an illegal search and/or seizure; and
The identification of the defendant was mistaken.
Finally, there is the defense of good faith. Essentially, if, during an emergency, an individual committed theft or burglary in good faith, such as taking medical supplies to treat wounds by someone injured as a result of the emergency, that individual may be able to avoid looting charges.
What to Do if You are Arrested?
If you have been charged with looting, contact the criminal defense attorneys at Manshoory Law Group, APC as soon as possible.
The attorneys at Manshoory Law Group, APC have extensive knowledge of criminal defense law, including burglary and petty and grand theft, and we will ensure that you are provided with an effective and aggressive defense.
Attorneys are available 24/7 to take your call. Contact us today for an initial consultation.
Being charged with a crime can be a harrowing experience. In many cases, the suspect is confronted with the distinct possibility that his/her life will be turned upside down, even if not convicted. Given that a substantial fine and/or prison time is a possibility, all efforts and energy must be directed towards defending the charges against him/her.
Retaining the services of an experiencedcriminal defense attorney can help alleviate some of the stress involved with being charged with a crime. One possible defense against criminal charges is that the State waited too long to file the charges, thus depriving the suspect of his/her right to a speedy trial, as well as violating the statute of limitations for the particular crime charged.
Entertainment personality Bill Cosby was recently found guilty and sentenced to a prison term of 3-10 years for drugging and sexually assaulting a woman in 2004. Although Cosby was actually accused of various sexual-related crimes by multiple women, he was able to avoid prosecution for all but one of the crimes because they happened well after the statute of limitations for those particular crimes had expired.
A discussion of statutes of limitation, when such statutes may not apply, and a suspect’s Constitutional right to a speedy trial, will follow below.
What is a Statute of Limitations and Why is it Important?
In the criminal context, a Statute of Limitation is a law that sets how long the State may bring charges against a suspect. Typically, the time periods set in statutes of limitation vary by crime. Nevertheless, if the State fails to bring charges against a suspect within the stated time, the State cannot pursue any action against the suspect or, if it attempts to do so, the defendant can petition the court to dismiss the charges. Typically, the court-mandated to issue a dismissal if it finds that the statute of limitations has expired.
In California, the time period, for calculating the limit in the statute of limitations, typically starts on the day the crime is alleged to have been committed. However, there are some instances in which the time period begins when the State knows or should have known, that a criminal act was committed. Matters falling under this aspect of the statute of limitations involve fraud and child molestation.
Finally, an important point should be noted here. If a suspect is, in fact, charged with a crime, the statute of limitations is stopped (referred to as tolling the statute of limitations). This is an important issue, which will be revisited below.
What Crimes Have No Statute of Limitations in California?
In California, some crimes have no statute of limitation, meaning charges can be filed at any time.
These crimes include:
Crimes punishable by death or life in prison without the possibility of parole;
Crimes for the embezzlement of public funds; and
Various sexual crimes, such as rape and child molestation.
When the Right to a Speedy Trial Applies?
There is another factor affecting the speed at which the State must act. Specifically, the U.S. Constitution provides defendants with a right to a speedy trial. This right is intended to protect the defendant from an unreasonable delay between the filing of the charges and the beginning of the trial. In California, by law, defendants have a right to the commencement of a trial within one year of the filing of charges.
Speak to a Criminal Defense Attorney
If you have been charged with a crime, please contact the experienced criminal defense attorneys at Manshoory Law Group, APC as soon as possible. We have immense knowledge of criminal law, including ensuring that the State is acting according to the law. To that end, we will work to devise a strategy and present the best case for you.
Attorneys are available 24/7 to take your call. Contact us today for an initial consultation.
Since the Clinton Administration, many American criminal justice systems implemented measures to make them appear to be tough on crime. One of these measures has been to increasingly charge juveniles as if they were adults. Consequently, in California, juveniles as young as 14 were subject to being charged and tried in adult court.
Given the potentially catastrophic consequences that such a charge can have on the rest of that juvenile’s life, retaining the services of an experienced criminal defense attorney should be the first priority if a juvenile is charged with a crime.
In the time since the implementation of laws allowing for juveniles to be charged as adults, many scientific studies have been conducted that have shown that charging juveniles as adults not only does not benefit society, it has had a detrimental effect on the juveniles, unfortunately preventing them from becoming productive members of society.
A discussion of the bill currently in front of the Assembly, as well as the crimes for which a juvenile can be charged as an adult, will follow below.
What is CA Senate Bill 1391?
As alluded to above, Senate Bill 1391 will put a minimum age on those individuals who can be tried as an adult. Specifically, the bill mandates that only those who are 16 or 17 years old have the potential to be tried as an adult. Anyone younger must be tried within the juvenile justice system. Further, as is currently the law (and will not be affected by SB 1391), anyone over the age of 17 must be tried within the adult criminal justice system.
Generally, crimes committed by individuals under the age of 18 are tried in Juvenile Court. Juvenile Court, officially, is not part of the criminal justice system, and the cases are typically considered confidential. When a matter is heard in Juvenile Court, the judge does not find the juvenile to be innocent or guilty. Rather, the judge will sustain the petition if he/she finds that the juvenile committed the crime beyond a reasonable doubt. The judge then issues a disposition – an order requiring the juvenile to pay a fine, perform community service, be placed on probation, or be made a ward of the court.
If and when the juvenile successfully completes the terms of the program, the charges are dismissed. Unlike the criminal justice system, the primary goal of the juvenile justice system is not retribution, but rehabilitation.
What is Section 707 Crimes in California?
However, there are some crimes, set forth in Section 707 of the California Penal Code, in which a juvenile under the age of 18 can be tried as an adult. Prosecutors have discretion over whether to charge a juvenile, suspected of committing one of these crimes, as an adult or as a juvenile. These crimes will not be affected by SB 1391 – only the age at which a juvenile can be subject to this Section will change.
These crimes include:
Murder
Rape with force, violence or threat of great bodily harm
Forcible sex in concert with another
Lewd and lascivious acts on a child under 14 with force, violence or threats of great bodily injury
Torture
Forcible sexual penetration
Carjacking
Sodomy or oral copulation by force, violence or threat of great bodily injury
Hire A Criminal Defense Attorney
If you are aware of a juvenile who has been charged with a crime, contact the experienced criminal defense attorneys at Manshoory Law Group, APC as soon as possible. Vigorous defense of a minor facing criminal charges is a must to ensure that they can be given a chance to eventually succeed in life.
The lawyers at Manshoory Law Group, APC will use their knowledge of criminal law to devise a strategy and present the best case for the minor’s defense. Attorneys are available 24/7 to take your call. Contact us today for an initial consultation.
Facing prison time is never a happy moment, and it is the major tenet of the American justice system that punishment for a crime, is intended to be a deterrent. However, in some cases, the individual committing the crime may not have the capacity to truly understand the consequences of his/her actions. Specifically, those with developmental disabilities, traumatic brain injuries, or post-traumatic stress disorder, or those who have mental health problems resulting from military service may not fully comprehend, or in some cases control, their actions.
Consequently, subjecting these individuals to prison may do more harm than good. In fact, such individuals may want to retain an attorney experienced in criminal defense law to ensure they get the most appropriate help.
California has a law that allows certain criminal suspects to be diverted to mental health treatment programs and have their charges dismissed, and, earlier, Governor Brown signed off on an expansion of the suspects that are eligible for this program, to include those with bipolar disorder or schizophrenia, and even those who commit serious or violent felonies.
However, recently, various prosecutors have been lobbying the Governor to retract some of this expansion, alleging that this expansion casts too wide a net, and will put dangerous felons back on the street. A discussion of this expansion, as well as the potential for retraction, will follow below.
What is California’s Mental Health Diversion Program?
The law described above allows a criminal defendant suffering from a specified mental disorder to be granted pre-trial diversion for a crime if a judge finds the disorder played a significant role in the crime. In a pre-trial diversion, the criminal trial is stopped for a period of up to two years and, if there is substantial compliance by the defendant with the diversion program and the defendant has not committed a significant crime, the charges will be dismissed, and the records of the arrest and prosecution sealed.
What has angered prosecutors is that the law was expanded to those who have been charged with any crime, and does not take into account any past convictions. Thus, as the prosecutors allege, this law is applicable to murderers, rapists, robbers, child molesters, arsonists, and the like, and does not take into account whether this is the second rape, for example, that the defendant has committed.
Additionally, there is some confusion as to what constitutes a “significant” crime during the two-year diversion program.Finally, prosecutors are wary of the fact that the law allows for eligibility in the diversion program for almost every type of mental health diagnosis. Thus, defendants diagnosed with mental illnesses such as schizophrenia (diagnosis of some serial killers), paraphilia (of which serial rapists are often diagnosed), and depression (associated with mass school shooting murders) would be eligible for diversion.
Retraction Potential
Based on these concerns, various California prosecutors have been lobbying Assembly members to pass a law curtailing the above-stated issues. Specifically, prosecutors wish to limit the new program to those charged only with misdemeanors or non-serious, non-violent felonies.
A bill had been moving through the Assembly with these limitations, without opposition, and with bipartisan support, but was stopped when the new bill was passed as part of a trailer to a budget bill. Additionally, various newspapers and other media have been advocating for this change, so it does appear that there may be a better than not chance that these restrictions will eventually be added.
Hire A Criminal Defense Attorney
If you, or someone you love, have been charged with a crime, contact the experienced criminal defense attorneys at the Los Angeles law firm Manshoory Law Group, APC as soon as possible. It is vitally important to have an experienced criminal defense attorney on your side, and doing so can truly be the difference between a prison sentence and getting the treatment you need.
We will use our knowledge of criminal law to devise a strategy and present the best case for your or your loved one’s defense. Attorneys are available 24/7 to take your call. Contact us today for an initial consultation.
In California, as in most states, to be charged with homicide means that the prosecutor has evidence that the defendant “unlawfully killed another human being or fetus with malice aforethought.”Accordingly, this means that the defendant must have been directly involved with the unlawful end of another person’s life; that is, he/she effectively “pulled the trigger.”
However, California, like the vast majority of states, also allows a defendant to be charged with homicide if the defendant, or a fellow perpetrator, kills another human being while committing certain felonies, regardless of whether the killing was intentional. This is known as the Felony-Murder Rule, and retaining the services of an experienced criminal defense attorney can be crucial to those who have been charged with the Rule’s violation.
In February, Berkeley Senator Nancy Skinner introduced a bill in the Legislature that would reform California’s, Felony-Murder Rule. A discussion on the current felony-murder rule, and the proposed reform, will follow below.
What is the Felony Murder Rule in California
Expanding on the previous description, California’s Felony-Murder Rule maintains that if a person, either alone or in concert with another, decides to commit an enumerated felony, and, while committing that felony, that person (or anyone acting in concert) kills another, that person, and anyone else involved, can be tried, and convicted, of murder. The intention of the Felony-Murder Rule is deterrence – to deter people from committing felonies and to deter people from putting other lives in life-threatening situations while committing certain felonies.
The qualifying felonies for application of the Felony-Murder Rule include:
Arson
Rape
Carjacking
Robbery
Burglary
Mayhem
Kidnapping
Train wrecking
Any murder that is committed during a felony or attempted felony is inherently dangerous to human life
As is evident, it does not matter whether an intent to kill is present, just that a homicide resulted when committing, or attempting to commit, one of these acts.
What is the Proposed Amendment to the Felony-Murder Rule?
The proposed amendment to the Felony-Murder Rule provides a distinction between active and passive persons involved in the underlying felony. That is, the proposed Rule attempts to distinguish between persons who participated in the underlying felony, but did not know a murder was apparent nor participate in the murder, and those who chose to commit murder or aided in the process.
Thus, the law limits liability to those who participated in an underlying felony which resulted in a homicide if the individual was the actual killer or, with an intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the murder.
The intention of this proposed amendment is to hold those who had active participation in murder to a more stringent standard than the person who just participated in the commission of a felony. As an example, a lookout person or a getaway car driver to a burglary in which a homicide took place would not be facing the same penalty – which could be life in prison or the death penalty – as the individual who in fact did kill another person. Rather, such individuals would be charged with aiding and abetting a crime and can face the punishment more appropriate for that crime.
Hire A Criminal Defense Attorney
If you, or someone you love, have been charged with a homicide, and especially if you or a loved one has been charged with a violation of the Felony-Murder Rule, contact the experienced criminal defense attorneys at the Los Angeles law firm Manshoory Law Group, APC as soon as possible.
Our knowledge of criminal law, including homicide, is deep, and we will use this knowledge to devise a strategy and present the best case for your or your loved one’s defense. Attorneys are available 24/7 to take your call. Contact us today for an initial consultation.
When a person is convicted of a crime, a judge may order probation in lieu of prison in certain cases. This is not standard, as not all crimes provide a judge with this latitude, but for those that do allow this option, having a criminal defense attorney persuade the judge, on behalf of the criminal defendant, that this option is better than a prison term is crucial.
Further, if the criminal defendant is a juvenile, probation is almost always preferable, as it keeps the juvenile from having a criminal record and affords him/her a chance to redeem himself/herself going forward, in spite of any childhood transgressions.However, recently, Riverside County instituted a program under which juveniles are put on criminal probation as a result of having poor academic grades.
While this may seem like an extreme use of probation, and, in fact, from the article, the ACLU has instituted a lawsuit against the program, it does illustrate the use of criminal probation to punish juveniles, a discussion of probation and its specific application to minors will follow below.
What are the Rules of Probation in California?
Criminal probation, refers to the supervision of a convicted defendant for a specific period of time, in place of serving time in prison. Typically, the convicted will be ordered to meet various conditions by the court, and failure to do so may result in the imposition of the prison term.
By way of examples, convicts are typically required to surrender any firearms in their possession, remain employed (or participate in an educational program), abide by a curfew, live at a specified residence, obey the orders of a probation officer, and/or not leave the jurisdiction. In some cases, convicts may be required to retain a tracking device, such as an ankle bracelet, to track their movement.
California has two types of probation – summary and formal. Summary, also known as court probation, typically is imposed when one is convicted of a misdemeanor crime, or a wobbler crime, and where the convict is deemed not to be a danger to the community.
Formal, or felony, probation occurs when the convict has deemed a danger to the community. Formal probation, which is more restrictive, requires regular meetings with a probation officer to ensure that the convict is meeting all the conditions of the probation, while also ensuring that he/she has not left the jurisdiction.
What are the Types of Juvenile Probation?
When the convict is a juvenile, the types of probation available become more nuanced, as, in some cases, the probation allows the juvenile to be removed from his/her place of residence. Differing from adult probation, in juvenile matters, there is also non-wardship and wardship probation. The primary difference between these two types of probation is that, in wardship probation, the probation-ordering court will have jurisdiction over the juvenile as if it was the juvenile’s parent.
This jurisdiction includes the ability to remove the juvenile from his/her place of residence. In the majority of cases, juvenile probation is for a six-month period, after which a determination is made regarding whether the juvenile successfully met all conditions of the probation, or whether charges will be filed, and/or a prison sentence will be imposed.
When the probation is non-wardship, voluntary diversion programs between the probation officer, the juvenile, and his/her parents, are an option. Successful completion of the program means that the matter is closed, and no further action is taken.
Failure to complete the program means that a formal petition is filed with the Juvenile Court, which can lead to another round of informal, non-warship probation, in which the court will put the sentence on hold to allow successful completion.
Hire A Criminal Defense Attorney
If you are aware of a juvenile who has been charged with a crime, and are curious about the possibility of probation, contact the experienced criminal defense attorneys at the Los Angeles law firm Manshoory Law Group, APC as soon as possible.
Our knowledge of criminal law is extensive and we will use this knowledge to formulate the best strategy to defend against criminal accusations. Attorneys are available 24/7 to take your call. Contact us today for an initial consultation.
As the U.S. Supreme Court winds down its term, every June and October, a flurry of opinions is typically released. This June was no exception. One case, in particular, touched on an issue that has been addressed by the Court in previous matters – an individual’s expectation of privacy, particularly from searches by the government.
Such an expectation varies according to the circumstance – trash left on the curb for pickup, for example, is accorded no expectation of privacy, and can be accessed by law enforcement without a warrant – and an attorney experienced incriminal defense lawyer can help combat warrantless searches if the circumstance demands it. In this instance, the Court held that, even though one is not listed as the authorized driver on a rental vehicle agreement, he/she still has an expectation of privacy just as if he/she was the authorized driver.
A discussion of this recent Supreme Court case, as well as how it may be applied going forward, will follow below.
The Fourth Amendment’s Expectation of Privacy
The Fourth Amendment to the U.S. Constitution generally prohibits warrantless searches and seizures. However, case law has diluted this prohibition to, as stated above, various circumstances. Prior to this holding, most federal courts have held that a driver whose name is not listed on the rental contract does not have any right to challenge a search of that vehicle.
Unanimously, however, the Court rejected that viewpoint and maintained that one who has lawful possession and control of a vehicle will generally have an expectation of privacy. The Court specifically made the analogy that if a friend allowed another friend to drive his/her vehicle (or, pointed to a previous case, if a person is permitted to stay at a friend’s apartment), the driver (or the apartment dweller) would have an expectation of privacy.
Further, in this case, the Court noted that the fact that one is not on the rental contract is not, per se, illegal (the contract did not specify that such an act would void the agreement). Consequently, lawful possession of a rental vehicle would be if the rental company, or, in this case, the rentee, allowed the individual to operate the vehicle.
Even if the rental contract did indicate that the agreement would be void, the Court seemed to imply that this fact was irrelevant, as the agreement is actually about risk allocation of the rental vehicle, and not necessarily an effort to block someone from allowing another person to drive it.
Effect of the Holding
At first glance, it would seem that the effect of this holding is clear when it is applied to situations just like the one at issue. However, it is important to note that the Court remanded the case back to the trial court to determine if any exceptions to the Fourth Amendment’s prohibition on warrantless searches and/or seizures would apply (ex. consent, plain view, stop and frisk, or vehicle with probable cause).
Consequently, the Petitioner is not out of the woods just yet. Nevertheless, the holding does give some guidance – if no exception applies, then the fact that one is not listed on the rental agreement as an authorized driver does not destroy his/her expectation of privacy.
Hire A Criminal Defense Attorney
While the Supreme Court case discussed in this post is somewhat narrow, if you have been charged with a crime in which you believe law enforcement may have searched your person or your effects improperly, and potentially violated your rights, contact the experienced criminal defense attorneys at the Los Angeles law firm Manshoory Law Group, APC as soon as possible. If indeed, evidence was seized in violation of the Fourth Amendment, the attorneys at our office will use their skill to argue against its introduction at trial.
Attorneys are available 24/7 to take your call. Contact us today for an initial consultation.
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