Long Beach Criminal Attorney Lectures on Preliminary Hearings

California criminal law offers the accused many rights when the D.A. files charges.  Among those is the right to a preliminary hearing in all felony cases.  The purpose of a preliminary hearing is to establish whether probable cause exists to believe that the defendant has committed a felony. Determining whether sufficient probable cause exists at a preliminary hearing can weed out groundless charges of grave offenses and relieve the accused of the degradation and expense of a criminal trial. It also can operate as a judicial check on the exercise of prosecutorial discretion and help ensure that the defendant is not charged excessively, which could confer a tactical advantage upon the prosecutor in respect to plea bargaining.  In addition to acting as a check on prosecutorial overreaching, determining that probable cause exists ensures that a defendant is not detained for a crime that was not committed.  According to one Long Beach Criminal Attorney, a preliminary hearing is conducted by a magistrate after a defendant has been arraigned and has pleaded not guilty to one or more felony charges lodged in the complaint. In addition, the California Constitution also requires a preliminary hearing for a defendant charged in a complaint with one or more felonies. It is also well settled that a preliminary hearing must be held before a magistrate to ensure that there is enough evidence to hold the defendant to answer. The California Constitution also provides, however, that a preliminary hearing cannot be held if a felony prosecution is initiated by a grand jury indictment.

At the preliminary hearing, the prosecution must present sufficient evidence to convince the magistrate that probable cause exists to believe that a crime has been committed and that the defendant committed the crime. If the prosecution shows probable cause, the magistrate holds the defendant to answer to the charge, and the prosecution must then file an information with the court within 15 calendar days.  If the magistrate finds insufficient evidence that probable cause exists, the magistrate must dismiss the case.  At the preliminary hearing, the magistrate must be convinced only of such a state of facts as would lead a reasonable person to believe and conscientiously entertain a strong suspicion of the defendant’s guilt.

Matthew Ruff is a practicing criminal attorney in Long Beach and provides defense on all felony and misdemeanor cases.

Can Restitution in a Criminal Case be Discharged in Bankruptcy?

A very common question for folks facing criminal charges involving large amounts of financial loss is whether Court ordered restitution is dischargable in Bankruptcy Court?  The answer to this question is that the Bankruptcy Code does not apply to criminal court restitution orders. At least according to the case of People v Washburn (1979) 97 CA3d 621. A restitution obligation imposed as a condition of probation is not dischargeable in a liquidation or “straight bankruptcy” proceeding under Chapter 7 (11 USC §§701 et seq). The courts have held that civil restitution judgment originally imposed as a condition of debtor’s probation not dischargeable under Chapter 7). Nor is a restitution obligation dischargeable under Chapter 13 (11 USC §§1301 et seq). 11
USC §1328(a)(3).Bankruptcy does not block restitution even when defendant’s civil obligations to the victim were discharged by bankruptcy before criminal charges were filed, according to one Santa Clarita Criminal Attorney.

Because collection of restitution is a continuation of a criminal action, the automatic stay provisions of bankruptcy law do not apply therefore a person seeking bankruptcy protection will not be shielded from the payment of such obligations. See In re Gruntz (9th Cir 2000) 202 F3d 1074, 1084–1087 (automatic stay did not enjoin state court criminal proceedings against debtor for failure to pay child support); 11 USC §362(b)(1). Furthermore, in drunk driving cases, the restitution for medical bills when injury is alleged will not be stopped just because a defendant has filed BK, according to a local Santa Clarita DUI Attorney. As it relates to a Victim’s bankruptcy. When the victim incurred an obligation to a third party as a result of defendant’s conduct, the bankruptcy discharge of the victim’s obligation does not preclude a restitution order. People v Dalvito (1997) 56 CA4th 557, 560–562, 65 CR2d 679 (bankruptcy is economic loss despite discharge; no explanation why loss is equal to amount of obligation).  Reference CAL Benchguide.

What is the Significance of Factual Findings in a Criminal Case?

There are a myriad of legal issues present in any given case, one of the little known areas of fruitful discussion is that of the importance of factual findings in a criminal defense case.  If the Court in a criminal case made factual findings regarding the evidence presented at the preliminary hearing, for example,  which are binding on the prosecution and bar them from including charges in the information that were rejected by the magistrate that heard the evidence and evaluated witness testimony at the preliminary hearing.  Indeed, the credibility of a witness is a question of fact for the magistrate. A reviewing criminal court will not substitute its judgment for that of the magistrate on a finding of fact. The district attorney may not include in the information any charges that were rejected at the preliminary hearing if the magistrate has made factual findings inconsistent with the rejected charges. The magistrate’s power to make factual  findings controls the ultimate disposition of the charges filed in the case.  The prosecution must show that the defendant had the specific intent to promote, further, or assist in any criminal conduct by gang members. When the prosecution had not proven the elements of the offense, despite that finding the prosecution has re-alleged those allegations in the information. Based on the foregoing, it is always advisable to ask the judge or Court to make factual findings after a preliminary hearing where the judge threw out charges.

What Evidence of “Touching” is Required to Prove a PC 288?

PC 288 is referred to as lewd act on a child or child molestation.  The crime requires proof of a lewd touch or touching.  Whether the touching is lewd or lascivious and “lewdly” performed depends upon the sexual motivation and intent with which it is committed.  Inadvertent or casual non-offensive touching that is unaccompanied by direct or circumstantial evidence of an intent to arouse, appeal to, or gratify either the lusts, passions or sexual desires of the defendant or the child are insufficient to qualify as a lewd and lascivious touching.  According to one Los Angeles 288 Lawyer, the “any touching” provision of the law of Penal Code section 288 regarding a charge of a lewd act with a child under 14 (PC 288(a) and (b)) was upheld by the California Supreme Court in People v. Martinez (1995) 11 C4th 434.  However, Martinez made it clear that whether the touching is lewd or lascivious depends on the sexual motivation and intent with which it is committed.  The intent element is crucial to making a determination of whether a crime has taken place.

In addition, the concurring opinion of Justice Baxter in People v. Lopez (98) 19 C4th 282, 291  discussed the fact that in inadvertent or casual non-offensive touching that is unaccompanied by direct or circumstantial evidence of an intent to arouse, appeal to, or gratify the lusts, passions or sexual desires of the defendant or the child is insufficient to qualify as lewd and lascivious touching.  While the intent element is included in the jury instruction recitation of elements, when the defense is based on a theory that the touching was inadvertent or casual non-offensive touching, the defense should have a right to instruction upon that theory.  Because the law of 288 is complex, a Los Angeles 288 attorney should be consulted prior to coming to any conclusions about the legality of the offense is made.

Long Beach Criminal Defense Attorney Explains Misdemeanor Probation

California law gives a judge two options when sentencing a defendant on a misdemeanor criminal offense, send the person to jail or give the person probation.  Probation is the suspension of the imposition or the execution of sentence and the order of conditional and revocable release into the community under the supervision of the court or a probation officer. The law governing criminal offense probation is found in Penal Code section 1203. Probation is not a right of an accused but an act of clemency by the court, the granting or denial of which is within the court’s discretion according to one Long Beach Criminal Defense Attorney.

The primary considerations in granting probation are the safety of the public; the nature of the offense; the loss to the victim; the needs of the defendant; and the interests of justice, including punishment, reintegration of the defendant into the community, and enforcement of conditions of probation. For example, a decision to grant or deny probation must be based on whether confine-ment is necessary to protect public, whether defendant can best be rehabilitated through a term of jail or normal community conduct, and whether probation would unduly undermine seriousness of offense.

Any probation report ordered by the court must be made available to the court, the district attorney, and defense counsel at least two days before the time fixed for consideration of the report and pronouncement of judgment. On the defendant’s request, the report must be provided five days beforehand. Some Courts have ruled that a failure to provide report within this five-day period denies defendant due process and requires remand for resentencing. The time within which the report must be made available may be waived by a written stipulation of the district attorney and defense counsel or by an oral stipulation in open court.  If the defendant is not represented by counsel, the court must order the pro-baion officer to discuss the contents of the report with the defendant,  At the sentencing hearing, the court must state for the record that it has read and considered the probation report. The failure to make this on-the-record statement may result in the reversal of sentence.

A Criminal Attorney in Long Beach Discusses 170.6 Challenges

Here is the scenario, two defendants are charged in a case together.  One of the defendants files a 170.6 challenge against the first Judge assigned to hear a bail motion. (A 170.6 challenge allows a party to get rid of a Judge for no reason if they believe he or she is biased against them)  Thereafter, when trial gets closer the case is assigned to a new Judge that the other defendant believes will be biased against the case.  The question is can the defendant challenge that new Judge under a 170.6?  The short answer to the question is no, but there is an exception if the defendants can demonstrate they have a conflict of interest against each other.  Here is the law: In a criminal case, if there is a conflict of interest among co-defendants, each defendant may be entitled to make a peremptory challenge. The defendant seeking to make a second challenge has the burden of showing substantial adverse interests between the co-defendants.  This burden is not met by the mere fact that the defendants are
represented by separate counsel, nor by potential conflict between co-defendants at trial, when the judge against whom the second challenge is sought is to preside at a pretrial hearing  The filing of a form declaration
claiming a conflict of interest with no specific factual showing of adverse interests is insufficient.  This type of predicament arises frequently in the Long Beach Court given the large number of gang related charges filed there.  It is important to get a consultation with a local Criminal Attorney in Long Beach if you believe your case falls within the exception to the rule.

Long Beach Celebrates Another Fourth, Be Safe.

Another 4th of July is upon us. The police will be out to enforce all criminal laws, be safe and be careful.