Southern California Defense Blog

Filing an Appeal In California

Fri, 18 May 2012 13:33:47 -0800

Let’s face it. Courts make mistakes. Sometimes sentences that are handed down are too harsh. Prosecutors, and even jurors, may engage in misconduct. Evidence can be admitted wrongfully, and laws are occasionally applied incorrectly. And any of these reasons can be grounds for filing an appeal in California.

Unfortunately, however, the appeals process can be complex and slow, given to tight time constraints followed by months of waiting. If you wish to file an appeal for a felony, you have only 60 days from the date of your sentencing to do so. For misdemeanor convictions the window of opportunity closes even sooner – 30 days from the date of sentencing. Missing the deadline precludes you from being able to exercise an important right.

The first step in filing an appeal is to secure the services of a seasoned appellate attorney such as you would find at Wallin & Klarich. Your attorney will thoroughly review your case file, after which he will file an opening brief. This will detail any legal issues in your case that offer grounds for a new trial.

Under the provisions of California Penal Code 1237, one can appeal both errors that occur during the trial, itself, and the sentencing. The appellate court has the power to reverse the guilty verdict and order that you be given a new trial. It may also determine that the sentence that was imposed was too harsh, and send your case back for resentencing.

All the above takes time. You may become frustrated as months pass without any seeming progress in your case. If this occurs, remember that a strong appeal takes time to develop. Moreover, appellate courts tend to be weighed down with cases awaiting consideration. It may help to keep in mind that the right of appeal is one of the great safeguards in our system, and that it may be your opportunity for a new trial.

If you have been convicted of a crime and wish to appeal, the Law Offices of Wallin & Klarich may be able to help. We have over 30 years of experience handling appellate cases. Call 888-749-0034 for a review of your case.

New York Ruling on Child Pornography and California Law

Thu, 17 May 2012 13:02:42 -0800

A New York state appellate court ruled this week that the mere viewing of child pornography online does not constitute possession and procurement. The ruling came in an appeal of a case involving a professor who was convicted in 2007, and has drawn headlines nationwide. But what does it mean, and how does this apply to California?

How the courts made this ruling
First, the ruling applies only to New York State. It does not, as some speculate, render the possession and viewing of explicit materials involving children legal. Rather, the basis of the appeal brought into question the definition of possession and procurement. Under New York law, an individual must have dominion and control over the material. The defendant in this case had merely viewed images on the Internet, and did not download or save them.

The logic in the decision was that simply viewing an image on the Internet does legally constitute possession and procurement. Whenever a person views an image online, it is stored on the system’s cache, even if it is not downloaded. The image is not retrievable for viewing from the cache. The court reasoned that dominion and control would entail some affirmative action, such as downloading the material.

The ruling may protect a person who inadvertently views a website that contains explicit images. Proponents of the ruling argue that until now even an honest mistake could leave an individual open to prosecution. Those opposed to the ruling say that a court would take such a mistake into consideration, and that it is highly unlikely a person would view an explicit website by mistake in the first place.

The ramifications of this ruling on California law
California Penal Code, § 311.11, states that, in order to be found guilty, a defendant must “knowingly possess or control any matter…the production of which involves the use of a person under the age of 18 years.” The subsection does not specify that the defendant needs to have dominion or control, but may merely possess it knowingly.

It is possible that a case may be appealed in the future which questions what “possession” entails. Moreover, there may be room for discussion about what defines control. New York’s appellate court took a narrow stance on this issue. Whether the decision will be used as case precedent in the future remains to be seen. For now, the mere viewing of images deemed child pornography is a felony in California.

The Law Offices of Wallin & Klarich have been helping people accused of sex crimes for over 30 years. If you need legal assistance, call for a consultation anytime at 888-749-0034.

Man Sentenced to Death is Granted New Hearing by Federal Court of Appeals

Mon, 14 May 2012 15:31:31 -0800

Even after an accused is found guilty, his criminal defense lawyer must competently represent him at his sentencing hearing. In many cases a judge has great discretion at the sentencing hearing of an accused found guilty of a serious felony. In some cases the court has the power to sentence a defendant to decades in prison or can decide to place the accused on probation.

In the case before the court - the case in question - the defendant was found guilty of murder and was sentenced to death. All of the state courts had turned down his appeal. However, after many years the 9th circuit federal court of appeals reversed his death sentence. The court ruled that his lawyer provided inadequate legal representation by failing to properly investigate his clients background to present to the court at his sentencing hearing.

After a jury has returned a guilty verdict, the attorney must become creative and do everything possible to convince the judge to impose a probationary sentence. The prosecution will be asking for a lengthy prison sentence or even the death penalty in some cases. If your lawyer is not prepared with critical information to provide to the judge, your are very likely going to receive a very harsh sentence.

If you would like to discuss your serious case with the criminal defense attorneys of Wallin and Klarich, feel free to call us at (888) 280-6839. We will be there when you call!!!

Illinois Police Officer Violates Man's Constitutional Rights

Fri, 11 May 2012 18:19:01 -0800

Know your rights in case of an infraction. This case that we debated on Fox News is a great example of an officer abusing the constitutional rights we all have when it comes to traffic stops. In order to make a traffic stop an officer must have probable cause to believe that a violation of some sort took place---whether an infraction, misdemeanor of a felony.

In this case, the officer initially indicated he saw the “trekkie” Mr. Huff’s vehicle swerve within two lanes of the road. When both passengers denied that, he seemed to change his story to stopping the car because it was driving in an are where there was a great deal of gun and drug trafficking. The first excuse for the stop, if true, would have established probable cause. The second did not.

After a lengthy conversation, the officer then told Mr. Huff he was going to search his vehicle apparently because the passenger in the vehicle “looked nervous”. Absent anything more, that does not sufficient legal cause to search a vehicle. The officer, who had a history of this type of behavior, clearly violated the Fourth Amendment rights of the men---rights to be free of unlawful search and seizure.

If you are stopped by an officer, be cooperative, but document to the extent possible everything the officer does and/or requests of you. Remember, as the video here proves, most officers may know general police procedure, but they are not schooled in many of the constitutional requirements of the 4th, 5th and 6th Amendments! When your freedom---on any level—is at stake because of a stop, search and seizure by law enforcement contact the California Criminal Defense Attorneys of Wallin & Klarich at (888) 280-6839…we are experts in dealing with all types of criminal and traffic charges!

Court Throws Out Convictions When Police Entered Hotel Room without a Warrant because They Smelled Marijuana

Mon, 07 May 2012 14:45:26 -0800

The question the court faced was whether the police needed to obtain a search warrant when they smell a strong odor of marijuana coming from a hotel room. In a decision that will be very good news for all persons who smoke marijuana in the privacy of their home or in a hotel they may visit, the court of appeals threw our the defendants convictions and ordered that all of the evidence seized during the search of the hotel room must be suppressed. Without this evidence the cases will have to be dismissed.

The courts decision was based upon the fact that the marijuana possession of less than 28.5 grams is a “non-jailable” offense. This means it is not a serous offense and thus the police cannot claim that they must be allowed to enter your home or hotel room without a warrant in order to seize this evidence. The court reasoned that since all the police can do if they in fact find you in possession of less than 28.5 grams of marijuana is issue you a citation there is no “emergency” so great that would allow the police to enter your residence or hotel without first obtaining a search warrant.

Why is this so critical to those persons that want to be free from unlawful searches and seizures of their home and property under our constitution? It is so important because police have been using the “smell of marijuana” coming from the residence excuse to unlawfully break into peoples home for decades. The “risk’ of harm when police storm into your home is great. Often police will handcuff everyone they see in the home and they will conduct a search of your entire home looking for anything “unlawful” they might find. With this court having the guts to see through this police “ploy” this will no longer work for law enforcement when they would like to enter your home or hotel room to attempt to find evidence so they might arrest you.

While this is good news for those that smoke marijuana in their homes or in a hotel room, it is even better news for the people of our state and nation who will no longer have their constitutional rights violated by this unlawful police conduct.

We would like to know how you feel about this. If you are facing a criminal case and would like our help as to a possible search and seizure issue feel free to call the criminal defense attorneys at Wallin and Klarich at 888-280-6839. We have been helping people fighting for their freedom for over 30 year and we will be there when you call.

Ballot Measure to Reform California's 3 Strike Law Makes November Election

Mon, 30 Apr 2012 10:50:51 -0800

With California facing a budget crisis and our jails so horribly overcrowded that judges openly mock the “power” of sentencing people to jail time, there are currently people sitting in California jails serving 50 year sentences for shoplifting. While that may seem like some extreme propaganda used by criminal defense attorneys or the far left, the simple fact is, California’s “three strikes” law is horribly flawed.

It is so flawed, that Californians have collected enough signatures to add a ballot measure to the November elections that would seriously reform the three strikes law and in turn, save hundreds of millions of dollars in the long term.

If approved, the reforms would do two things.

1) There is a list of felonies that count as a strike under California’s Three Strike law. Commit one of these crimes, and a strike goes on your record for life. Any crime you commit thereafter, your sentence can be doubled. Commit a second felony that counts as a strike and the sentence enhancements increase even more. There are more than two dozen US states with similar laws. But here is where California law differs from every other similar law in the country.

Once a person has two strikes, any felony conviction will result in a mandatory sentence of 25 years to life in prison. That includes shoplifting, felony possession of marijuana, or even a DUI. What the ballot measure is hoping to accomplish is to require that the 3rd strike be a violent felony in order to trigger the 25 years to life sentence.

2) If it passes, the ballot measure would also retroactively re-sentence 3rd strike offenders jailed for non-violent crimes, easing the strain on our already overtaxed prisons.

The immediate financial impact would be monumental, as these non-violent offenders would be released, freeing tens of millions of dollars in taxpayer money that goes towards housing these inmates. Long term, the impact is even greater as non-violent offenders would be sentenced to far shorter prison terms, preemptively easing the taxpayer burden.

The ballot measure easily passed the petition phase, collecting more than 800,000 signatures. It only needed just over 500,000 to make the November ballot. Whether it passes or not remains to be seen. But for the sake of California taxpayers and the integrity of the criminal justice system, we certainly hope that it does.

TSA Agents at LAX Facing Federal Drug Charges

Thu, 26 Apr 2012 11:43:48 -0800

The Transportation Security Agency has had more than its fair share of black eyes in the past few years. Now, two of their current employees and two former employees are in need of a Los Angeles federal crimes attorney after being arrested on federal drug crimes.

In a shocking story, the TSA agents reportedly allowed drug smugglers to pass through Los Angeles International Airport x-ray machines with large quantities of cocaine and other drugs in exchange for money.

The federal indictment outlines 5 separate incidents where the agents accepted as much as $2,400 per incident to allow drug smugglers free reign to pass through security checkpoints. The group was allegedly masterminded by a disgruntled former TSA employee who had been fired in 2010.

If convicted, each defendant faces a minimum of 10 years in federal prison. Punishments for federal crimes are almost always more severe than punishments for state crimes. In addition to longer prison sentences, people convicted of a federal crime typically serve their sentence at a federal prison far from their home, and also serve a much longer percentage of their sentence when compared to people convicted in state courts.

It is disturbing to think that individuals charged with protecting our airways could be bought for so little. While the allegations against the four accused are just that – allegations – these arrests come on the heels of a ring of baggage handlers arrested at a US airport who were stealing from checked luggage.

There is no word on whether the accused have hired an attorney yet or not.

Should judges and jurors have to reveal their sexual orientation?

Wed, 25 Apr 2012 11:31:57 -0800

Most people are aware that a federal judge recently ruled that Proposition 8, the proposition that banned gay marriage in California was unconstitutional. That issue will likely now end up before the United States Supreme Court.

What fewer people know is that after the ruling was made the federal judge who made the ruling announced that he was gay. The proponents of Proposition 8 are using that issue as one of many to have his ruling overturned by the Supreme Court. Of course we are very hopeful his ruling will stand and that will allow gay and lesbians to marry in California.

However, since this issue has come to the attention of the public some are now arguing that prior to a judge being appointed to the bench that be required to advise the governor of his sexual preference. This is an outrageous proposal but it may end up becoming a piece of legislation that some conservative lawmaker in Sacramento will take up as their latest “cause” to satisfy the tea party movement and other religious conservative voters.

This proposal is ridiculous and must be rejected. This proposal would in effect force anyone who wanted to become a judge to “out himself or herself” against their will. This proposal also will accomplish nothing. This concept assumes that a persons sexual preference will somehow impact his ability to rule in a particular case. The law doesn’t require those who apply to be a judge to state their religious preference and it should not make an exception for sexual preference.

Can you imagine the next step if this were to become law. Then jurors, under the same theory, would be able to be asked by lawyers during jury selection about their sexual preference. The same argument could be made that jurors could be influenced for or against a party due to their sexual preference. The entire notion is outrageous.

However, if people do not step up and point out that this idea is crazy it could become the law of this state. In reality all this proposal is has to do with yet another way to show ignorant prejudice against gay and lesbian men and women who have already suffered enough prejudice.

We do not ask judges to tell us if they have cheated on their spouses. We do not ask judges to tell us if they have been going to church on a regular basis. By the same token we should not require judges to inform us of their sexual orientation. None of these things have anything to do with a judges ability to sit and judge trials fairly and to make the best legal decisions they can make due to their years of legal experience.

We encourage your comments.

Why Are California Medical Marijuana Laws So Hazy? Part 4

Tue, 24 Apr 2012 11:06:21 -0800

Part 1
Part 2
Part 3

Today we bring you part 4 of our series of blogs surrounding California's medical marijuana laws. Today's blog is about the pitfalls and potential legal battles you can face if you decide to open a medical marijuana dispensary.

Basic collective law

You hear about medical marijuana dispensaries being “Little cash cows” making hundreds of thousands of dollars a month. Don’t believe everything you hear or read on the internet. There are many lawyers advertising themselves as “420 lawyers” representing that they can guide you through the permitting process in many cities that will allow you to open up and start servicing patients in a short period of time. Operating a medical marijuana collective dispensary is not always as easy as that. There are strict guidelines that must be followed in how the business entity is set up and many cities in California still have city wide bans on medical marijuana collective dispensaries.

Over the last decade, hundreds of thousands of dollars have been spent on litigation against the cities and counties in an effort force them not to ban medical marijuana collective dispensaries within their local jurisdiction.

It is important to note that a collective is not a sure bet. While some well-run collectives in the right area do well financially, others manage to squeak by month to month. There are collectives that pay just enough to pay for medication, rent and employee wages with no spendable income to pay for attorney’s fees.

It is also important to remember that medical marijuana collective dispensaries are required to be non-profit and that labor and wage laws apply to them the same as any other business. Those who wish to venture into the medical marijuana collective dispensary business should keep in mind that it is not a money tree and your legal fees can be substantial due to federal laws and local ordinances designed to keep dispensaries from opening within their borders.
Many people in local positions of power or influence have preconceived notions that are totally opposed to the concept medical marijuana collective dispensaries. Many of them could care less about what state law says. They just don’t want it in their back yard. In addition, few judges have been willing to “Pull the trigger” and rule in favor of medical marijuana collective dispensaries.

If you decide to open a medical marijuana dispensary, consult with a financial consultant that knows the financial issues of operating a non-profit enterprise and lawyer who knows how to legally set up the structure of a medical marijuana collective. Failing to properly structure the collective can result in the operating member being accused of a felony. Don’t start a collective based upon the notion that it is trouble free cash cow. It’s a tough business now and will be for some time.

Growing medical marijuana is a science and an art. The relationship between the people who grow the product and the people who dispense the product is key to avoiding several legal troubles. Having contacts with good providers who are willing to become members and how to set up your lease are all important things to address before setting up a successful non-profit operation that can support management members.

Even with the best laid plans, operating a medical marijuana collective dispensary is a high risk business. Having a relationship with an experienced lawyer who is familiar with all the issues concerning medical marijuana is essential. Your lawyer should know how to set up the business entity, know how to obtain permits, and be familiar with land use litigation if the city or county in which you decide to do business becomes unworkable. It’s also helpful if your attorney has a background as a criminal defense attorney to be able to defend the managing member and the employees if local or federal criminal prosecution becomes a problem.

Why Are California Medical Marijuana Laws So Hazy? Part 3

Mon, 23 Apr 2012 12:15:35 -0800

Part 1
Part 2

Last week we began a series of blogs surrounding California’s medical marijuana laws. Today we bring you Part 3 of that series. You can follow the links above for Parts 1 and 2.

Today’s blog focuses on the federal government’s recent crackdown on medical marijuana dispensaries, and how federal law is handcuffing local California municipalities from being able to safely regulate the medical marijuana industry.

The legal difficulties that cities throughout California are facing when deciding how to regulate medical marijuana use revolves around one key case - Pack v. Superior Court (2011) 199 Cal.App.4th 1070

In the case of Pack v. Superior Court, cities that have local regulations for medical marijuana establishments — such as permits and fees — are preempted by federal drug law. This means that California cities and counties have two options. They can either help Uncle Sam prosecute the Drug War or stand idly by. But local jurisdictions can't actively contravene federal law with medical marijuana distribution permits, fees, and mandates for lab testing.

As a result, progressive cities with dispensary regulations have been forced to pause their programs. Conversely, cities and counties opposed to medical marijuana are using Pack to ban all clubs, and unregulated clubs now have legal cover to open without any rules.
If Pack stands, “we have an out-of-control industry we could not effectively regulate,” said Bob Shannon, Long Beach's city attorney. “It's a totally unacceptable set of circumstances, at least for us.”

In the interim, the federal government continues to crack down on medical marijuana dispensaries throughout California. In response to the federal government’s crackdown, a coalition of medical marijuana patients, activists, dispensing centers, and concerned citizens has compelled public officials to stand up to recent federal attacks. Last week, the coalition San Francisco United for Safe Access (SFUSA) held a press conference with several city supervisors and state officials, decrying the Obama Administration's aggressive tactics before a crowd of more than 500 supporters. By Friday, SFUSA had secured a statement from Mayor Lee, expressing his opposition to "recent federal actions targeting duly permitted Medicinal Cannabis Dispensaries...that aim to limit our citizens’ ability to have safe access to the medicine they need."

"By opposing federal interference, San Francisco officials are taking a stand for patients and for sensible public health policy," said Americans for Safe Access founder and Executive Director Steph Sherer. "The federal government must not be allowed to push patients into the illicit market without consequence." Since U.S. Attorneys announced a concerted crackdown in California last October, more than 200 dispensaries have shut down as a result of threats to owners and their landlords. However, more than 1,000 locally compliant facilities still continue to operate in the state.

"The assault on medical marijuana patients currently underway by the Obama Administration is unprecedented in this country's history, despite hollow proclamations to the contrary," continued Sherer. "The intensity and breadth of the attacks has far surpassed anything we saw under the Bush Administration and has resulted in the roll-back of numerous local and state laws, not just in California."

As it stands right now, federal law makes it difficult to impossible for California cities to regulate the medical marijuana industry, which even proponents of medicinal use of marijuana agree opens a Pandora’s box of potential problems. How the higher courts rule on cases like Pack vs. Superior court will have a dramatic effect on the future of medical marijuana laws here in California and across the nation.

Why Are California Medical Marijuana Laws So Hazy? Part 2

Thu, 19 Apr 2012 11:47:13 -0800

Part 1

Yesterday we began the first part in a series of blogs outlining California’s medical marijuana laws and how they conflict with Federal law. This has been an ongoing struggle for medical marijuana activists, and recent raids on prominent dispensaries have only raised more questions in the debate.

Dispensary owners are fighting a battle on two fronts. First and foremost, there is the federal government looming over their heads, as federal law still prohibits all marijuana growth and distribution. Then there are local governments to deal with. Several municipalities throughout California are trying to circumvent medical marijuana laws by raising zoning and permit issues in an attempt to shut down dispensaries.

In order to fully understand the laws, our medical marijuana attorneys will try to answer two key questions for you.

1) To what extent do California's medical marijuana laws preempt local regulation or prohibitions to storefront medical marijuana establishments?

2) To what extent does the federal CSA preempt local regulations that would allow medical marijuana establishments?

For the purposes of today’s blog, we will tackle question 1. Tomorrow we will deal with question 2.

There are several cases that have been heard in California’s appellate courts that specifically address the rights of local municipalities to “ban” medical marijuana dispensaries. Unfortunately, the courts have arrived at completely opposite and conflicting decisions on the issue, making things that much more murky.

In City of Riverside v. Inland Empire Patient's Health and Wellness Center, Inc., Division Two of the 4th District Court of Appeal held that neither the CUA nor the MMPA preempt Riverside's prohibition of medical marijuana establishments. The court stated: "Nothing... in the CUA and MMPA precludes... zoning ordinances banning medical marijuana dispensaries."

The court held that the immunities from state criminal sanctions set forth in California Health and Safety Code Section 11362.775 do not shield dispensary operators from civil nuisance abatement actions or protect dispensaries that operate in violation of local zoning. The court further stated that "nothing in the CUA or MMP suggests that cities are required to accommodate the use of medical marijuana and medical marijuana dispensaries.

However, in City of Lake Forest v. Evergreen Holistic Collection, Division Three of the 4th District reached the opposite conclusion. The California appellate court for Orange County ruled that local governments cannot prohibit dispensaries altogether insofar as the state legislature allows them where medical marijuana is “collectively or cooperatively cultivated.”

“Under the city’s ban, a medical marijuana dispensary always constitutes a nuisance, though the legislature has concluded otherwise,” a unanimous three-judge panel said. “Because the city’s ban directly contradicts state law, it is preempted and furnishes no valid basis for a preliminary injunction in the city’s favor.”

The issues surrounding medical marijuana in Orange County and throughout the state have become a legal quagmire - one that the state's supreme court has agreed to take on.
Our Orange County medical marijuana attorneys will be closely following the developments of the supreme court's decision, stemming from cases involving four cannabis dispensaries. Two other cases could be lumped in as well, including the recent appeal of an Orange County decision which determined that municipalities aren't allowed to ban pot stores, but the stores have to grow all of their product on site - something most have said is impossible.

In 2010, there was a ruling in the 4th District Court of Appeals, which held that Anaheim city officials weren't allowed to ban dispensaries just because federal law considered them illegal.

Then you look at conflicting rules even originating from the same court. Last fall, the 2nd District Court of Appeals handed down a sweeping judgment, saying Long Beach city officials weren't allowed to issue permits to marijuana dispensaries because federal law has deemed the drug unlawful. Any move by the city to regulate medical marijuana within its limits would be seen as violation of federal law. But then just last month, that same court tossed the convictions against the operator of a Hollywood marijuana club, deciding that he had been legally transporting more than a pound of cannabis from one dispensary to the other, which he was allowed to do under state law.

As a reporter for the Sacramento Bee so succinctly put it: The courts have a serious case of multiple personality disorder.

It could take as long as two years, if not more, to sort through the legal mess. In the meantime, that leaves patients and dispensary owners in the lurch, wary of attracting the ire of both state and federal authorities, and yet still wanting to practice their right to safe, legal access to medical marijuana.

Why Are California Medical Marijuana Laws So Hazy? Part 1

Wed, 18 Apr 2012 09:55:33 -0800

Today we launch the first blog in a series of blogs outlining California's medical marijuana initiatives and how they contradict federal law. The series was put together by Matthew Wallin, one of the expert drug crimes attorneys at Wallin & Klarich. Today we provide a brief overview of the two California voter approved acts that have decriminalized medical marijuna. Tomorrow, we will begin taking a closer look at some of the landmark cases that have and will shape medical marijuana laws in California moving forward.

Part 1

California's medical marijuana laws – the voter approved Compassionate Use Act (CUA) of 1996 and the Legislature's Medical Marijuana Program Act (MMPA) of 2003 - present cities and counties with serious legal dilemmas with respect to whether and how to apply appropriate zoning and business license regulations to the distribution of medical marijuana.

Under the federal Controlled Substances Act, all marijuana production, distribution, and consumption is illegal. However, under the Compassionate Use Act (CUA) of 1996 and the Medical Marijuana Program Act (MMPA) of 2003, qualified patients and their primary caregivers are immune from state criminal sanctions for certain activities related to medical marijuana. As set forth in California Health and Safety Code Section 11362.775 – these activities include the collective and cooperative cultivation of medical marijuana. Essentially, state law decriminalizes medical marijuana collectives and cooperatives that cultivate their own medical marijuana, while federal law prohibits such activities altogether.

Medical marijuana advocates rely on the state criminal immunities in California Health and Safety Code Section 11362.775 as legal authority for medical marijuana collectives, cooperatives, and dispensaries to operate from storefront locations. For local governments, such storefront operations present difficult questions that go to the heart of local land use authority, a power that is reserved in the state constitution to counties and cities.

The federal government considers all marijuana use, cultivation, and distribution to be illegal, and has already closed several high-profile medical marijuana dispensaries throughout California. Despite the federal government's enforcement policy, it is expected that the growing demand for medical marijuana will require local governments to continue to address its land use implications.

The area of California medical marijuana law is highly complex. Marijuana crimes may trigger punishments for violation of both federal and state drug laws. If you have been accused or arrested for a drug-related offense in California it is important that you speak to one of our highly experienced Orange County criminal defense attorneys. Wallin & Klarich has over 30 years of experience in representing individuals charged with drug-related offenses throughout Southern California. Call Wallin & Klarich at (888) 749-0034 or visit our website at www.wklaw.com. We will be there when you call.

Orange County Man Arrested for Burglary After Victim Writes Down His License Plate

Mon, 16 Apr 2012 12:00:20 -0800

A cypress man was arrested on suspicion of burglary after a homeowner walked in on him while in the act. Kris Do Young Shin, 31, was arrested Friday thanks in large part to the calm nature in which the victim handled herself. No word yet on whether or not Shin has retained a criminal defense attorney or not.

The incident happened Friday afternoon in broad daylight when woman spotted a man in her home. She called police and reported that the man fled the scene when confronted with her laptop and a key ring. She also managed to provide a description of the getaway car as well as the license plate number.

Shin was promptly arrested in neighboring La Palma after officers staked out his car and arrested him when he returned to the vehicle.

In addition to finding the victims laptop and keys, police also discovered that Shin had other property in his possession that they believe was from another burglary. A quick run of Shin’s name shows that he has been arrested on possession of burglary tools as well as burglary, but had pleaded not guilty in those crimes.

Residential burglary, also known as 1st degree burglary, is always charged as a felony and is also considered a strike under California’s three strike law. If convicted of 1st degree burglary, an individual faces as many as 6 years in state prison. If an individual already has a strike on their record, that punishment can be enhanced, all the way up to 25 years to life in prison if the person had two prior strikes.

Failure to Instruct a Jury on the Defendants Defense is Grounds for Appeal

Fri, 13 Apr 2012 17:20:59 -0800

The Court of Appeal reversed a defendant’s conviction for driving under the influence of marijuana after the trial court failed to properly instruct the jury on defendant’s theory of defense. The defendant was charged with driving under the influence of marijuana, causing injury, and driving with a suspended license.

At trial, the defendant argued that he was not under the influence of marijuana and lost consciousness as the result of his low blood sugar condition. The court failed to instruct the jury on “unconsciousness” and the jury found the defendant guilty. The defendant’s appeals attorney argued that the trial prejudicially and erroneously failed to instruct the jury on the defense of unconsciousness and that the instructions prevented the jury from considering his defense.

The Court of Appeal held that the trial court has an affirmative duty to give instructions on a defendant’s theory of defense where it is obvious that the defendant is relying upon such a defense, or if there’s substantial evidence that supports it.

This duty requires the court to tailor the instruction to the particular facts of the case. The Court of Appeal explained that the defendant was clearly relying on involuntary unconsciousness as a defense. The evidence and testimony at trial involved discussion of defendant’s unconsciousness and low blood sugar. His defense clearly asserted that he should not be found guilty because he passed out due to low blood sugar, and there was sufficient evidence to support his defense. As a result, the court’s failure to instruct the jury on unconsciousness effectively removed the defendant’s principle defense from the jury’s consideration.

Proposed Law Would Force New Lawyers to Perform "Internship" Before Being Licensed

Wed, 11 Apr 2012 15:38:12 -0800

Just about every other profession requires their members to have practical training before they are allowed to become licensed to start their profession.

Doctors must perform internships that take years. Dentists, Nurses, School Psychologists, Mental Health Professionals, all must work in their field and train under experienced members of their profession before they can receive a state license to begin their profession. However, this has never been the case with lawyers.

Lawyers are allowed to go to law school, and take a written exam and if they pass it they can begin to “practice law”. The major problem with this is that this allows new lawyers to “practice” on their clients. These new lawyers often do not have the experience or knowledge as to how to properly represent a client. This leads to clients suffering greatly.

The persons that suffer the most due to this policy are the persons who have the least amount of money to afford a lawyer. This happens because newer lawyers, hungry for clients will charge low fees to get the “experience”. The problem is that the clients are often being “experimented on” because the young lawyers do not know much if anything about the court process or how to successfully represent a client. This is not because the young lawyers do not want to do a good job. This is primarily because most law schools do not require their students to actually spend a period of time working under the supervision of experienced lawyers who could “show them the ropes”.

It is not clear why law schools are not required to do this. All that is clear is that California is now considering requiring all lawyers to undergo some sort of “internship” before they can become a lawyer. This law needs to be passed to protect all members of our society who should not be used as “experiments” so a new lawyer can learn how to do his job.