Law and Justice

Posts Tagged ‘California’

This article provides a brief overview of common marijuana charges in California.  It is critical that anyone charged with a marijuana crime understand the charge and potential defenses to it.

Marijuana crimes are generally divided into three categories: (1) possession, (2) possession for sale and (3) sales. Because these are separate criminal charges with different punishments and defenses it is necessary to examine each charge separately.

Possession of marijuana (Health & Safety Code 11357) is charged when a person possesses marijuana for personal use and not for sale.  Possession of a small amount of marijuana, usually less than 1oz., is a misdemeanor punishable by no more than a $100 fine.  Other marijuana possession charges are misdemeanors, with the exception of possession of hash which can be charged as a felony.  In most cases, people charged with marijuana possession qualify for “drug diversion” which is a drug education program.  If the program is completed the marijuana possession charge is usually dismissed!

Possession of marijuana for sale (Health & Safety Code 11359) is a more serious charge than simple possession.  It is a felony punishable by 16 months, 2 or 3 years in state prison.  “How do the cops and D.A. prove that marijuana was possessed for sale and not for personal use?”  They typically rely on the following types of evidence: defendant has marijuana and baggies or a scale; defendant has marijuana and significant cash; and there is more marijuana than expected for personal use.  Possession for sales charges must be vigorously defended against.  Successful defenses may include (1) insufficient evidence of intent to sell, (2) illegal search and seizure – it is not uncommon for the cops to find marijuana through an illegal search, and (3) showing that even a large quantity of marijuana may be for personal use.

Marijuana sales (Health & Safety Code 11360) is charged when a defendant allegedly sells or transports to sell marijuana or simply offers to do so.  Marijuana sales is generally a felony punishable by a 2, 3 or 4 year prison sentence.  Marijuana sales may be charged from direct evidence of sales – for example a stake out or sting operation – or based on indirect evidence such as a large quantity of marijuana and frequent visitors to a suspected sales premises. A strong defense must be mounted against any marijuana sales charges.  If a an offer to sell was made under duress, as a result of entrapment, based on an illegal search or seizure, or there is otherwise insufficient evidence of actual sales, theses defenses must be raised to challenge the prosecution’s sales charges.

I hope this article has been helpful.

Sincerely,

Garret Weinrieb, Esq.

Valerio | Weinrieb Criminal Defense Attorneys

(note: Information contained within this article is intended for general information purposes only and is not, nor is it intended to be, legal advice for any individual case or situation. The information contained within this article is not intended to create an attorney-client relationship and use of this article, and any information contained herein, does not constitute such a relationship.)

“Domestic violence” or “domestic abuse” is a common criminal charge in California.  Simple arguments often escalate into domestic violence allegations.  Domestic violence is typically charged under Penal Code 273.5 or Penal Code 243(e).  This article focuses on domestic violence charges under Penal Code 273.5.

It is critical for anyone accused of domestic violence to have a basic understanding of domestic violence law, including how a prosecutor attempts to prove domestic violence; punishments for domestic violence; and defenses to domestic violence allegations.

What is required to prove domestic violence? The prosecution must generally prove the following facts to find a defendant guilty of domestic violence under Penal Code 273.5: (1) defendant abused a spouse, former spouse, a current or former live-in girlfriend or boyfriend, or the mother or father of the defendant’s child; (2) the defendant used intentional (non-accidental) force to cause the abuse; and (3) the victim suffered some form of visible injury, even if the visible injury is small.

What are common defenses to domestic violence charges?  While any domestic violence charge must be evaluated on its specific facts, in many cases there are strong defenses to a domestic violence charge, including: (1) false accusations – domestic arguments often result in false accusations of domestic violence; (2) self defense – it is not domestic abuse when someone uses reasonable self defense to protect himself from a domestic attack; and (3) accident – it is not domestic abuse when someone does not deliberately do an act to cause injury to a spouse or domestic partner.

What is the punishment for a domestic violence charge?  Penal Code 273.5 is a “wobbler”, meaning that it can be charged as a misdemeanor or as a felony. If charged as a misdemeanor, it is punishable by up to 1 year in county jail and a $6,000 fine, or both.  If charged as a felony, it is punishable by 2, 3 or 4 years in a state prison, a $6,000 fine, or both.  The prosecutor will decide to charge Penal Code 273.5 as a misdemeanor or as a felony based primarily on the extent of the victim’s injuries.

I hope this article has been helpful.

Sincerely,

Garret Weinrieb, Esq.

Valerio | Weinrieb Criminal Defense Attorneys

(note: Information contained within this article is intended for general information purposes only and is not, nor is it intended to be, legal advice for any individual case or situation. The information contained within this article is not intended to create an attorney-client relationship and use of this article, and any information contained herein, does not constitute such a relationship.)

Incoming search terms:

Theft is a common criminal charge in California.  It is critical for anyone accused of a theft crime to have a basic understanding of theft law, including how a prosecutor attempts to prove theft, punishments for theft, and defenses to theft allegations.

Petty Theft (Penal Code 484) and Grand Theft (Penal Code 487) are the two most commonly charged theft offenses.  The only difference between petty theft and grand theft is the value of the allegedly stolen property – if the allegedly stolen property has a value of $400 or more grand theft may be charged.

How does a prosecutor prove theft? Whether charged with petty theft or grand theft, a prosecutor must prove the following facts: (1) the defendant took possession of property owned by another person; (2) that person did not consent to defendant taking the property (3) when defendant took the property he had the intent to take it permanently or for a significant amount of time; and (4) defendant moved the property and kept it – “movement”  occurs even if the defendant moved the property only a small distance and kept it for only a short period of time.

What are the punishments for petty theft? Petty theft is a misdemeanor, typically punished by up to 3 years of informal probation, a maximum sentence of 6 months in county jail, a $1000 fine, or both.  In some instances, such as when the value of the stolen property is small and the defendant has no criminal history, petty theft may be charged as an infraction and dismissed if the defendant completes theft education classes.

What are the punishments for grand theft? Grand theft is a “wobbler,” meaning that it can be charged as a misdemeanor or as a felony if the property has a high value. Misdemeanor grand theft carries a basic punishment of 3 years of informal probation, up to six months in jail, a $1000 fine, or both.  Felony grand theft can be punished by16 months, 2 or 3 years in state prison.

Defenses to theft charges! Theft charges are often based on weak evidence that must be vigorous challenged.  Depending on the facts of a case, defenses to theft charges may include: (1) lack of intent – when the defendant took the property he did not intend to permanently keep it, (2) right of possession – theft is not committed if the allegedly stolen goods belong to the defendant and the defendant has a right to possess them, (3) consent – defendant had consent to take the allegedly stolen property, and (4) false theft allegations.

If you have been charged with a theft crime in Los Angeles, Van Nuys, Beverly Hills or other parts of California I hope this article has been helpful.

Sincerely,

Garret Weinrieb, Esq.

Valerio | Weinrieb Criminal Defense Attorneys

(note: Information contained within this article is intended for general information purposes only and is not, nor is it intended to be, legal advice for any individual case or situation. The information contained within this article is not intended to create an attorney-client relationship and use of this article, and any information contained herein, does not constitute such a relationship.)

The California Supreme Court, in Simmons v. Ghaderi (July 21, 2008), has hammered in the last nail and has made confidentiality of mediation proceedings iron clad. The court held that there can be NO implied waiver of mediation confidentiality. An oral settlement agreement that is not in writing, signed by the parties and where there is no express waiver of mediation confidentiality, is not admissible and will not be upheld in court. Even if the parties engage in bad faith behavior during a mediation that would warrant sanctions, there is no implied waiver of the mediation confidentiality. By laying down clear rules, the Legislature intended, as a matter of public policy, to reduce litigation over the admissibility and disclosure of evidence regarding settlements and communications that occur during mediation.

Dr. Ghaderi, in a wrongful death medical malpractice lawsuit was at the mediation with her insurance adjuster and the defense attorneys. She had given her consent to settle, providing the settlement amount was at or below $125,000. Plaintiff’s accepted the $125,000. However, defendant and the claims adjuster, and defense attorneys refused to sign the settlement agreement when Dr. Ghaderi walked out of the mediation and orally revoked her consent. Plaintiffs went to the trial court to enforce the “written agreement” that the mediator had drafted, and which was signed by the plaintiffs. The trial court and court of appeal awarded the settlement amount as a judgment. The Supreme Court overturned the decisions and held that the mediation confidentiality statutes made inadmissible all evidence of an oral contract between plaintiffs and defendant during mediation. Specifically, no form of recordation of the oral agreement existed which was signed by all parties.

The California Supreme court made the following points:

1. The clear language of the statutory scheme and other indications of legislative intent reflect that disallowing an implied waiver would not produce absurd consequences, but was rather an intended consequence.

2. Evidence Code section 1119 sweeps broadly and renders all communications and writings made during mediation inadmissible except as otherwise specified in the statutes. Evidence Code Section 1122 plainly states that mediation communications or writings may be admitted only on agreement of all participants. Such agreement must be express, not implied. The Legislature intended Evidence code section 1122 to give litigants control over whether a mediation communication will be used in subsequent litigation.

3. Code of Civil Procedure section 128.5 allows a court to sanction bad faith behavior. There is no confidentiality statute making an exception for reporting bad faith conduct through the disclosure of mediation communications.

4. Section 1115′s placement within the Evidence Code further supports the conclusion that implied waiver does not apply to mediation confidentiality. Unlike the privileges subject to implied waiver that are found in division 8, entitled “Privileges,” the Legislature placed section 1115 et seq. in division 9, entitled “Evidence Affected or Excluded by Extrinsic Policies.” This placement reflects that the Legislature considered the specific limitations placed on the admissibility of evidence by the mediation confidentiality statutes and endorsed those limitations to encourage mediation as a matter of public policy.

5. Finally, the legislative history of the mediation confidentiality statutes as a whole reflects a desire that section 1115 et seq. be strictly followed in the interest of efficiency. By laying down clear rules, the Legislature intended to reduce litigation over the admissibility and disclosure of evidence regarding settlements and communications that occur during mediation. Allowing courts to craft judicial exceptions to the statutory rules would run counter to that intent.

The Supreme Court held that both the clear language of the mediation statutes and the prior rulings support the preclusion of an implied waiver exception. The Legislature chose to promote mediation by ensuring confidentiality rather than adopt a scheme to ensure good behavior in the mediation and litigation process.

Tips to Secure an Enforceable settlement agreement

If you are a party or an advocate to a mediation proceeding, and orally agree to a settlement, REDUCE THE SETTLEMENT TO WRITING, SIGNED BY ALL THE PARTIES. Some mediators do not take this requirement seriously and are very sloppy with having the parties reduce it to writing.

Reduce the settlement to writing AT the mediation. IF NOT, ONE PARTY WILL HAVE BUYER’S REMORSE AND will later REVOKE THE oral CONSENT TO SETTLE.

The parties should draft the settlement agreement, not the mediator.

Make sure that there is a provision in the agreement that the settlement is enforceable pursuant to California Code of Civil Procedure section 664.6, which states that the Superior Court will retain jurisdiction to enforce the terms of the settlement. Following these few simple steps will insure that the dispute has settled and is enforceable if one party does not keep the terms of the agreement.

Incoming search terms:

No matter where you live, whether it is in San Diego, Orange County, Los Angeles, La Jolla, Del Mar, Pacific Beach, Carlsbad, Oceanside, San Marcos, Mission Beach and Escondido or the cities of Huntington Beach, Anaheim Hills, Yorba Linda, Buena Park, Anaheim, Santa Ana, Irvine, Costa Mesa, Irvine, Newport Beach, Corona del Mar, Laguna Beach, and Laguna Hills, Buena Park, Temecula, Indian Wells, La Quinta, or Palm Springs, unless you haven’t turned on the television or read a newspaper during the 2008 Presidential election, or looked at the internet, you have seen claims by the Republican campaign that the publishing media is biased.

Attacking the media has long been a tactic of national candidates. In this election, once again, we have seen this tactic employed, yet with little of the success it enjoyed in previous Presidential campaigns.  As an election and  constituitonal lawyer, one can only applaud this lack of success in the use of this tactic in this election.

For the most part in this Presidential campaign, one candidate has been leveling these attacks on the press with regularity and with increasing anger, John McCain. While newspapers expect this to some extent, the public that is not wedded to one side of the fence or the other appears to be tiring of the attacks.

Recently, John McCain denounced the New York times in the strongest words, following a Times report that McCain’s campaign manager, Rick Davis, had been pain nearly $2 million by mortgage entities Fannie Mae and Freddie Mac. McCain’s chief strategist, Steve Schmidt said the New York Times is no longer a journalistic organization but is 150 percent in the tank for Barack Obama. Schmidt earlier attacked MSNBC as being an organ of the Democratic National Committee, and said the news media are on a mission to destroy Sarah Palin.

Unfortunately for John McCain, it has since been reported in the press that McCain’s campaign manager’s lobbying firm owned by his campaign manager has received $15,000/month for nearly three years and that and that the campaign manager was paid $30,000/month for nearly five years by an advocacy organization that he headed and which was financed by Fannie Mae and Freddie Mac to fight regulation. It has further been reported that McCain’s senior advisor, his campaign’s vice chairman, and his Congressional liaison, also made large sums of money from Fannie and Freddie lobbying or were in firms that did.

In an apparent attempt to deflect attention away from his mistaken attack on the New York Times story, McCain then announced he was suspending his campaign to immediately fly to Washington after awaking that morning to find a report in the Washington Post that he was behind in the polls by nine points. Soon after attempting to criticize that finding, and knowing what the disaster Sarah Palin’s interview with Katie Couric would be aired that night, McCain chose to dump his appearance on the David Letterman show, upstage the Couric interview with his own interview on the CBS News, and announce the suspension of his campaign that was in reality, never a suspension.

In hindsight of course, McCain’s actions were a huge error in judgment. His dilly-dallying around New York after ditching Letterman were picked up on and hammered at him unmercifully for two nights on the David Letterman show and later on the Daily Show, other news shows, on the internet and in the press. By the time he arrived the next day in Washington, it had already been announced that there was bipartisan support for the bailout bill, that just as quickly dissipated upon his arrival. It was reported that his campaign had not been suspended and Letterman, among others joked at his expense why he must have felt he could not leave his campaign in the hands of Sarah Palin, when she was seen incapable of answering simple questions put to her by Katie Couric. And after announcing he would not take part in the debate until there was either a bailout bill or great progress toward one, he had to fly back from Washington for the debate with no bailout bill in hand and Congress much less united than when he had arrived.

In the past, attacking the press has proved fruitful for Presidential candidates. This time the attack is falling on deaf ears and has either been the exception to the rule that it will help a candidate, or there is a change taking place in what a candidate risks if he is wrong.  As an election, campaign, publishing, marketing, media and constitutional law attorney, one can only conclude that negative attacks by the candidates are not working as they used to, whether it is against the media or against the other candidate.  The public has become weary of such tactics and it is showing in the polls.

Visit the Sebastian Gibson Law website at http://www.SebastianGibsonLaw.com . If you have a publishing, literary, first amendment, media, marketing or constitutional law issue, come to an experienced law firm who can represent you as your California Publishing Lawyer, your San Diego Constitutional Attorney and your attorney throughout Southern California. We have the resources and knowledge to represent you from San Diego to Orange County, from Huntington Beach and Newport Beach to Long Beach, Santa Monica, Ventura, Santa Barbara and San Luis Obispo. We also represent clients inland from Anaheim to Temecula, from Rancho Cucamonga to Palm Springs and Indian Wells.

If you are an inventor, a writer, a musician or a designer, it doesn’t matter if you live in Murrieta, California, San Diego, CA, Mission Viejo, Carlsbad, La Jolla, Westminster, Orange County, Anaheim, Orange, Irvine, Escondido, San Luis Obispo, Rancho Cucamonga, Ontario, Huntington Beach, Temecula or Palm Springs, Palm Desert, or Indian Wells, CA, the law is the same with regard to intellectual property in California. But why are patents, trademarks and copyrights are considered “Intellectual Property?” A good patent lawyer, trademark attorney, copyright lawyer or intellectual property law firm can tell you.

Actually it is the inventions that are patented, the symbols or words that are trademarked and the works of literature, music, film and the like that are copyrighted that are considered to be the intellectual property, but the question is really what makes them either intellectual or property?

Some, if not many of the works that are copyrighted are anything but intellectual, but their copyrights are extremely valuable nonetheless.

A funny looking symbol that becomes a trademark is perhaps more artistic than intellectual, but that symbol can be worth millions.I

nventions are really more inventive than intellectual, but if they work, they can be a benefit to mankind.

So, is it right that any of these things should be considered the property of one and not all of us?

What gives one person the right to protect a set of words or an invention as their own property?

Well, what the law does is reward people for their intellectual efforts. Whether that effort is to paint a beautiful painting, to write a wonderful piece of music or to create a device that makes it easier or more energy-saving to do something, that person deserves to be rewarded. And what the law does is give that composer or inventor a number of years to make a monetary reward from his or her efforts.

Some people question why a composer or inventor still has to go to great cost or effort to then market their works before they get any reward. Why aren’t they simply paid for the creation? Why do they still have to become marketing and advertising geniuses? Why must they even pay filing fees or an attorney to have their works and inventions protected.

The answer is simply a question. Who would pay these writers and inventors? The U.S. Patent and Trademark Office doesn’t have money to pay these people. Nor does the Library of Congress.

The system that is worldwide for protecting the works of our most artistic and intelligent people is not without fault, but it is the best system devised to date, despite the many efforts by pirates and infringers to steal the rewards that should go to these writers and inventors.

Patents, trademarks and copyrights can be extremely valuable. The copyright infringement of a book not long ago resulted in a seven figure settlement. Trademark infringement and patent infringement cases routinely result in settlement in the millions. And patents can be licensed or sold outright for tens of millions of dollars and sometimes more.

If you would like more information on intellectual property, need defense in a lawsuit, or wish to patent an invention or design, trademark a slogan, symbol or phrase, or copyright a literary work, photograph or a musical composition as an example, we invite you to call us.

If you have an intellectual property matter in Orange County, San Diego, in the Inland Empire, Palm Springs or anywhere in Southern California, we have the knowledge and resources to be your San Diego Intellectual Property Lawyers, and Orange County and Anaheim Intellectual Property Attorneys. For this reason, be sure to hire a California law firm with copyright lawyers who are ready to serve you in many areas such as Costa Mesa, Anaheim and Pacific Beach so you are properly represented when you need to be.

If you have an intellectual property matter and need to know your rights, call the Law Offices of R. Sebastian Gibson, or visit our website at http://www.SebastianGibsonLaw.com and learn about your rights and options. You can also call us to speak directly to Sebastian Gibson on the phone about your legal matter.

Incoming search terms:

Unless you are in a coma, it doesn’t matter where you live in California, in Corona del Mar, San Diego, Orange County, CA, Palm Springs, Palm Desert, Long Beach, Santa Ana, Anaheim, Riverside, Chula Vista, Irvine, San Bernardino, Huntington Beach, Fontana, Moreno Valley, Oceanside, Rancho Cucamonga, Ontario, Garden Grove, Palmdale, Corona, Escondido, Orange, Fullerton, Costa Mesa, Victorville, Carlsbad, Temecula, Murrieta, Mission Viejo, El Cajon, Vista, Westminster, Santa Monica, Santa Barbara, Hesperia, Newport Beach, Buena Park, Indio, Rancho Mirage, Indian Wells or Coachella, you will have somehow heard there is an economic crisis going on, and that Congress passed a whopping $700 billion bailout plan.

What you may not know, is that Treasury Secretary Henry Paulson’s draft proposal for the bailout of financial service firms on Wall Street as it was presented to Congress was an unconstitutional power grab of monumental proportions.

Under Paulson’s plan, no oversight, no review and no challenges would have been allowed by the courts, by Congress or by individuals. Henry Paulson had proposed that he effectively be appointed economic czar.

Under Section 8 of his initial proposal, which for years to come, will undoubtedly form the basis for questions on bar exams for law students, “Decisions by the Secretary pursuant to the authority of this Act, are non-reviewable and committed to agency discretion, and may not be reviewed by any court of law or any administrative agency.”

Under Section 8 of this Act, the Treasury Secretary would arguably have become a more powerful figure than our largely missing-in-action President, more powerful than the head of the Federal Reserve, the SEC and Congress combined, and as such in violation of the Constitution of the United States of America.

The draft proposal was in conflict with the Constitution for the simple reason that our nation’s most important document provides that every member of the executive branch, including the Treasury Secretary, is subject to legislative and executive review. Neither Congress nor the executive may delegate its authority to a cabinet member. It would have been like Congress delegating all its power to Sarah Palin, or to a single congressman, or to Superdog for that matter.

As hard as it is to violate the nondelegation clause in the Constitution, if there has ever been a proposal to come out of the executive branch which does a good job of it, it has been argued that this is probably the one.

The question is, did the President tell Paulson to get a blank check from Congress and to heck with the Constitution or did Paulson come up with this on his own? Did the President and Paulson really believe that if they told Congress they needed this power in 24 hours like the TV show, that Congress, even the Republicans in Congress, would give it to him?

In bad times even more so than in good times, we expect the leaders of this country to protect the Constitution of the United States, not to usurp the powers it conveys on other branches of government. Let us hope that in the coming days and months as this country tries to mend itself from this economic crisis, that Congress remembers what the executive branch seems to have forgotten – the Constitution.  

If you have a constitutional, or first amendment law issue in San Diego, Newport Beach, Irvine, Orange County, La Jolla, in the Inland Empire, Los Angeles, Palm Springs or anywhere in Southern California, we have the knowledge and resources to be your California Constitutional Lawyer and your Palm Springs and San Diego Business Attorney. Be sure to hire a California law firm with business and constitutional law experience who can serve areas such as Los Angeles, Palm Springs, Palm Desert, Anaheim, Irvine, Newport Beach, Carlsbad, Corona del Mar, Laguna Beach, Huntington Beach, Santa Ana, Rancho Cucamonga, Ontario, Fullerton, Del Mar, San Diego, Orange County, San Luis Obispo, Buena Park, La Jolla, Oxnard, Ventura, La Quinta, and Santa Barbara so you are properly represented.

If you have a constitutional, first amendment or business law issue of any kind, call the Law Offices of R. Sebastian Gibson, or visit our website at http://www.sebastiangibsonlaw.com  and learn how we can assist you.