General FAQs 3

  1. What Happens If I am Assaulted in Jail by a Sheriff Deputy?
  2. What Is the Usual Punishment for Malicious Mischief by a Juvenile?
  3. What Are the New Laws Regarding Medical Marijuana?
  4. What Happened to My Miranda Rights?
  5. How is a Jury Selected?
  6. What Happens If I Violate My Probation?
  7. What Does It Mean To Be A Registered Sex Offender?
  8. Resisting Arrest and Assault on a Police Officer - Charges Explained
  9. What Is A Search Warrant And How Does It Work?
  10. What Is The Role of the Defense Attorney vs. the Role of the DA?

21. What Happens If I am Assaulted in Jail by a Sheriff Deputy?

The LA County DA's office recently filed assault charges against 3 sheriff deputies accused of punching and kicking a jailhouse inmate. In the last 10 years only 2 other cases of excessive force have been filed against sheriff deputies in LA County. However, inmates frequently allege police and sheriff brutality. In fact, the American Civil Liberties Union says they receive an average of 3 or 4 complaints a week about excessive force. So why are so few cases filed?

Unless there are corroborating witness these cases are almost impossible to prove. And if the witnesses are other inmates, they are frequently discounted as biased and simply not believable. It usually comes down to the inmate's word against the deputy's word and the deputy is almost always believed over the inmate.

In this case, the inmate, Gabriel Vasquez, had a fractured cheekbone and injuries to his left ear, rib cage and face in a January 2006 incident. Sheriff's investigators initially discounted his claim that deputies injured him, saying Vasquez either inflicted the injuries on himself or other inmates did it. Not only did they not believe him but they disciplined him for making a false allegation.

The ONLY reason this case is being filed is because a sheriff's deputy later came forward and told the truth about the incident he had witnessed.

So, how do you ever prove this kind case? It is very difficult. The two avenues to pursue are looking for believable witnesses and/or looking into the background of the law enforcement personnel involved. Both require a level of experience, sophistication and knowledge far above that of the average lawyer. At the Law Offices of Rudolph E. Loewenstein, we have successfully defended clients charged with assaulting police officers and been able to show that, in fact, it was the officer or deputy who committed the assault.

Does all this sound complicated and overwhelming? You're right, it is and this is only a little information on a subject that can fill volumes. That is exactly why you need an experienced lawyer who not only knows his way around the legal system but who has earned credibility with both judges and prosecutors. Mr. Loewenstein has handled literally thousands of cases and is an expert on the subject, so much so that the State Bar of California has awarded him the coveted designation of Certified Criminal Law Specialist. As a former Deputy District Attorney, he knows the legal system from both prosecution and defense points of view. This is invaluable in allowing him to design a defense that will be the most effective one possible for you.

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22. What Is the Usual Punishment for Malicious Mischief by a Juvenile?

Any juvenile who commits malicious mischief as a minor faces the penalty of losing his/her drivers license for a year. Or, if the juvenile does not yet drive, the ability to apply for a license will be delayed by a year. Even though the crime doesn't have anything to do with driving, the loss of a drivers license is the big penalty for the offense.

Malicious mischief is defacing with graffiti, damaging or destroying any real or personal property that belongs to someone else.

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23. What Are the New Laws Regarding Medical Marijuana?

On November 5, 1996, fifty-six percent of voters approved Proposition 215. The law took effect the following day. It removes state-level criminal penalties on the use, possession and cultivation of marijuana by patients who possess a "written or oral recommendation" from their physician that he or she "would benefit from medical marijuana." Conditions typically covered by the law include but are not limited to: arthritis; cachexia; cancer; chronic pain; HIV or AIDS; epilepsy; migraine; and multiple sclerosis. No set limits regarding the amount of marijuana patients may possess and/or cultivate were provided by this act, though the California Legislature adopted guidelines in 2003.

In California there is no state regulation or standard of the cultivation and/or distribution of medical marijuana. California leaves the establishment of any guidelines to local jurisdictions, which can widely vary. For example, Marin County allows up to six mature plants, and/or a half-pound dried marijuana. It's neighbor, Sonoma County permits possession of three pounds of marijuana, and allows cultivation up to 99 plants, and physicians may recommend more for "exceptional patients."

Local and state law enforcement counterparts cannot distinguish between illegal marijuana and that grown or used for medical purposes. Many self-designated medical marijuana growers are, in fact, growing marijuana for illegal, "recreational" use.

Clearly this is a complicated area with contradictory and confusing laws. An attorney well versed in all the drug laws is essential in navigating this field.

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24. What Happened to My Miranda Rights?

What kind of rights do defendants have in a criminal case? One of the best known being the warnings police are required to give suspects before questioning them in a criminal investigation called Miranda rights.

The Miranda rights are as follows: "You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney, and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided for you at government expense."

Miranda rights stem from the case of Miranda v. Arizona. In 1966 the Supreme Court ruled that statements Ernesto Miranda had made to the police could not be used against him because he had not been advised of the rights listed above. Since then, before any pertinent questioning of a suspect is done, the police have been required to recite the Miranda warning. These are also often referred to as the "Miranda rights." When you have been read your rights, you are said to have been "Mirandized."

Up until now, the police were required to have the suspect specifically waive his Miranda rights before they could question him. That usually meant the suspect had to sign a written waiver. If the suspect didn't specifically and clearly waive his right to silence and to have an attorney present, a savvy defense lawyer could argue that the Miranda rights were not waived and therefore statements made by the defendant were not admissible in court.

Tuesday, June 1, 2010, the US Supreme Court weakened this ruling significantly by saying that, unless the suspect clearly tells the police he doesn't want to talk, they can continue questioning him.

What's the difference? In both cases the defendant must "invoke" or take advantage of his Miranda rights to remain silent and/or have an attorney present before questioning can continue.

The impact of the new Supreme Court decision is huge. Before June 1, 2010, the burden of proving that the defendant waived his right was on the government. In other words, the police had to show that the defendant clearly and unambiguously understood that he didn't need to talk to police. Because of that, police usually required that suspects sign something showing that they had been advised of their rights and chose to go ahead and speak anyway. This protected the defendant from overzealous police who might use questionable means to get him to talk.

Now, the burden will be on the defendant to show that he was clearly aware of his Miranda rights and chose to give them up. How is the defendant going to do that? The police can say they read the suspect his Miranda rights and he chose to talk anyway. Who is going to believe that didn't happen? And if the police are not clearly advising the suspect of his Miranda rights, is he supposed to know them anyway? Most criminal defendants have not spent years in law school or time studying the constitution. Under the pressure of an imminent arrest is the defendant supposed to remember he even has rights, let alone voice them?

The whole idea behind Miranda is twofold: to protect the defendant from unscrupulous police questioning and to deter the police from engaging in unscrupulous police questioning. Both have been undermined by the current 5-4 Supreme Court decision.

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25. How is a Jury Selected?

Jury selection occurs in a process called Voir Dire. This allows the lawyers and the judge to question prospective jurors to see if any of them are biased. Bias can take any form. Basically, bias is an inability to be completely impartial based on anything from race, gender, to past experiences. Depending on the judge, the lawyers may have an unlimited amount of time or no time at all to question jurors. In some courtrooms the judge does all the questioning and the lawyers can't ask anything. In voir dire, the lawyers are not supposed to educate the jurors on the law or the facts or try in any way to sway them to be more likely to vote for their side. The judge has complete discretion as to how this procedure is conducted.

There are two ways to challenge a juror. One is called a "challenge for cause". In order to challenge a juror's right to sit in judgment based on cause, the lawyer must show the juror is biased in some way. Once the challenge is made it is up to the judge to decide if the juror will stay or be excused.

The other way to challenge a juror is called a "peremptory challenge". In an ordinary case each side has 10 peremptory challenges. In a peremptory challenge, the lawyer can ask a juror to be excused without stating the reason or justifying why the juror should be removed. In a case where the defendant is facing life in prison each side gets 20 peremptory challenges.

The stated goal in any criminal jury trial is to get 12 people who are unbiased and can be fair in their decision making. But in reality each side is looking for the jurors who will be sympathetic to their side and most likely to vote either for or against the defendant, depending on which side they represent.

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26. What Happens If I Violate My Probation?

There are two types of probation, formal and informal. Informal probation almost always stems from a misdemeanor. If you are the defendant, you probably do NOT have a probation officer. And most likely, you were given something less than the maximum sentence. You were probably released on the condition that you fulfill certain conditions for a predetermined amount of time, somewhere between 1 and 5 years. The conditions of informal probation are generally, counseling, community service, Caltrans, paying fines. The point of it is that you must complete certain steps and then show proof of completion to the court.

Formal probation is quite different. You will be assigned to a probation officer who will monitor your activities. How closely you are monitored depends on the crime you committed. Generally you are given formal probation rather than being given the maximum sentence or state prison. If you violate your probation by either not completing something you are supposed to do or doing something that is prohibited, your probation officer can file a notice of probation violation, arrest you and take you to court.

Once you are in court for the probation violation, the judge can then sentence you up the maximum of your original sentence, but it is not mandatory. There is no right to a jury for a probation violation. Your punishment is entirely up to the judge. However, the persuasiveness of your attorney may have a direct bearing on the sentence you are given. It is extremely important to have an advocate who can present your side of things and argue effectively for you.

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27. What Does It Mean To Be A Registered Sex Offender?

By law, persons convicted of specified sex crimes are required to register as sex offenders with a local law enforcement agency. Registered sex offenders are required to update their information annually, within five working days of their birthday. Some sex offenders must update more often: transients must update every 30 days, and sexually violent predators, every 90 days.

Whether public disclosure is permitted is based on the type of sex crime for which the person is required to register.

California's Megan's Law was enacted in 1996, and allows local law enforcement agencies to notify the public about sex offender registrants found to be posing a risk to the public. Megan's Law is named after seven-year-old Megan Kanka, a New Jersey girl who was raped and killed by a known child molester who had moved across the street from the family without their knowledge. In the wake of the tragedy, the Kankas sought to have local communities warned about sex offenders in the area. All states now have some form of Megan's Law.

When confronted with an allegation that could result in registration as a sex offender, it is crucial to seek an attorney familiar with the intricacies of the law. No one wants registered sex offenders to live in their backyard so finding a place to live becomes a challenge when the defendant is released. Often newspapers will run alert the public that registered sex offenders are living in group homes and hotels in specific areas. Needless to say, neighbors are not happy about finding out that offenders are living next door. Because of Megan's Law, this notification is mandatory.

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28. Resisting Arrest and Assault on a Police Officer - Charges Explained

Resisting arrest is delaying, interfering, resisting or obstructing a peace officer in the lawful performance of his duty. So, what does that mean exactly? It's pretty much just what it says. The key to this charge is "the lawful performance of his duty" part. As long as an officer is lawfully performing his duty, you, John Q. Public, MUST submit. You may not like it, you may not agree with it but you have no right to resist it. The best course of action is to allow the arrest and argue about it later in court.

The use of excess force by a police officer, by its very definition, means the officer is not in the lawful performance of his duty. Therefore, only in situations of excess force are you allowed to fight back to protect yourself. The use of excess force by the police is a defense to a charge of resisting arrest.

Assault on a police officer is an attempt to commit a battery, which is an unlawful or offensive touching on an officer. This can range from a shove, push or pat to an all out bash over the head. Again, the defense to this is that the officer is not in the lawful performance of his duty. Police are never allowed to use excessive force and the use of such force means they are no longer lawfully performing their job. However, the police are given wide latitude in the amount of force they can use. There is no bright and clear line that separates reasonable from unreasonable force.

The bottom line on this is that the benefit of the doubt will almost always be given to the police and compliance in an arrest situation is almost universally the better course of action to take.

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29. What Is A Search Warrant And How Does It Work?

A search warrant allows the police to investigate and search, without permission, a particular area and confiscate objects that have been listed in the search warrant. The police cannot look for everything, they are supposed to only look for the items listed in the search warrant. In order to obtain a search warrant, the police have to convince a judge that they have "probable cause" to find the object of their search at the particular location they want to search. Probable cause is a very low level of certainty. It simply means that it is more likely than not the evidence they are seeking will be present.

In many instances the police can search without needing to have a search warrant. For example, if the police knock on Bob's door and ask to search his bedroom for drugs, and Bob says yes, then the police can go ahead and search the room without a warrant. It doesn't mean, however, that they can look through the rest of the house if the consent is only for one room.

If the police can see evidence of a crime in plain view they do not need a warrant. For example, when the police knocked on Bob's door to ask about searching his bedroom, if they saw drugs and drug paraphernalia sitting on a table in plain sight in the entrance, they have a right to enter and seize the that evidence.

In addition, if the police decide to arrest Bob, they can search him in an effort to protect themselves in case he has weapons. If in so doing they find drugs in his pocket, they can legitimately seize them because they found them in the course of conducting a lawful search.

In an emergency the police can act without a warrant. If they feel the public is in danger, they think evidence might be destroyed, or they are in "hot pursuit" of someone they think committed a crime, they can act. This makes sense logically because the evidence in these three scenarios would be lost or the public would be put in jeopardy if the police took the time to obtain a warrant.

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30. What Is The Role of the Defense Attorney vs. the Role of the DA?

My job as a defense attorney is to defend my client honestly and ethically against the government charges. I have one obligation and one obligation only and that is to my client. Even if my client tells me he is guilty, my job is to defend his Constitutional rights just as vigorously as if I thought he was innocent. No matter what the evidence shows, my job is to defend my client regardless of who he is or what the crimes are.

The DA's obligation is totally different. He must do justice. For example, if the DA discovers evidence pointing to the defendant's innocence, he MUST disclose that to the defendant. He has no choice in that, even if it means he would "lose" the case. The criminal justice system relies on the DA not allowing injustice by allowing false evidence. The DA has a higher standard whether he likes the defendant or not, personally thinks he did the crime or not, regardless of the type of crime involved. As the defense attorney, if I find evidence that would incriminate my client, the defendant, I have an obligation NOT to disclose it as that would compromise my client's 5th amendment rights not to incriminate himself as well as violating the attorney/client privilege.. That is in sharp contrast to the DA finding exculpatory evidence about the defendant. In that case the DA MUST turn the evidence over immediately to the defense.

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