2010 February Archive

We have many choices in life but when it comes to criminal defense, divorce, family law, custody of the children, and child support, the choice you make about representation can be the difference in winning and losing your case. Hiring an experienced attorney can provide you the valuable advice needed from a professional that can make all the difference in the world.

One way to find out if an office can help you is to obtain a consultation to know what your rights are, what your options may be, and an approach and strategy to your particular case at hand. Of course, the shortcut to legal proceedings would be to hire a paralegal service to do your paperwork and then you can represent yourself in court at your own risk. All too often, we see people who represent themselves in court and then come to our law firm to fix or correct a mistake that could hurt their case. A paralegal service knows how to fill out forms; however, they do not know the law, they are not attorneys, and cannot give you legal advice.

Going into court can be very stressful, particularly since most people do not spend a lot of time in court unless by profession. When facing a legal battle or issue, do it right the first time and have an experienced and aggressive attorney representing you and your interests. At Wallin & Klarich, we have over 30 years of experience and will defend your rights. Prevent unnecessary stress, anxiety, and apprehension and call us at 1-888-749-0034 for an appointment or visit our website at www.wklaw.com. We will be there when you call.

A recent United States Supreme Court decision (Eric Presley v. Georgia) affirmed the right of the defendant to have a public jury selection process and jury trial.

After a jury trial in a Georgia Superior Court, Eric Presley was convicted of cocaine trafficking. The decision was affirmed by the Georgia Supreme Court. Presley sought a writ of certiorari (a request to the U.S. Supreme Court to review a decision), claiming his Sixth and Fourteenth Amendment rights to a public jury trial were violated by the trial court when it excluded the public from the voir dire (jury selection) of prospective jurors. The United States Supreme Court granted Presley’s claim, reversing the judgment against him.

During the jury trial in question, a lone observer in the courtroom was told he was not allowed in the courtroom during jury selection and had to leave the courthouse. Upon learning the observer was Presley’s uncle, the court judge told the uncle there would not be enough room for him when prospective jurors entered the courtroom, but he would be able to come back in once the jury was selected and the trial would start. Presley’s attorney objected to the “exclusion of the public from the courtroom,” but the court refused Presley’s uncle’s presence during jury selection.

After Presley was convicted, he moved for a new trial based on the exclusion of the public (in this case, Presley’s uncle) from the jury selection. Presley also presented evidence that the prospective jurors called to court could easily fit in the courtroom with enough room for the public. However, the trial court denied the motion, stating the decision to exclude the uncle was up to the courtroom judge to decide. The judge stated he made his decision in part because he did not want family members in the courtroom mingling with potential jurors. The Supreme Court of Georgia affirmed this decision.

However, the United States Supreme Court reversed the judgment, stating, “Trial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials. Nothing in the record shows that the trial court could not have accommodated the public at Presley’s trial.” Presley won his case.

This case shows there is a potential for courtroom misconduct in every criminal case. It is important to have the experienced Southern California criminal defense attorneys of Wallin & Klarich represent you if you accused of a crime. Our attorneys have the knowledge and expertise you need if you are facing a criminal offense. Our attorneys may decide it is important to look into courtroom misconduct issues in your case. The attorneys at Wallin & Klarich can be reached by phone at 1-888-749-0034 or through our website at www.wklaw.com. We will be there when you call.

Nothing obstructs the future of a young child more than a criminal record. When a child makes a mistake and incurs allegations of assault, weapons possession, drug use, sexual misconduct, or vandalism, a conviction can prove to be a lingering hindrance that may significantly deprive the child in later life of certain opportunities and privileges. In short, a child’s single lapse in judgment can have a lasting negative effect on his or her life.

At Wallin & Klarich, our view is aligned with that of the juvenile court system in believing that kids who “act out” should be rehabilitated rather than incarcerated. Therefore, we aggressively seek to obtain for our young clients informal disposition that removes their case from the damaging effects of a formal criminal conviction.

The California Welfare and Institutions Code section 654 provides for an informal resolution of a delinquency case that does not result in a criminal record. Our experienced Los Angeles juvenile defense attorneys at Wallin & Klarich can be instrumental in helping parents gain control of the situation to ensure that their child’s future remains intact.

When a child commits a crime, a probation officer may file a petition to declare that the child be deemed a ward of the court under section 601 of the California Welfare and Institutions Code. This essentially means that a minor who commits a crime can be taken away from their parents’ custody. To avoid the wrenching heartache of this result, section 654 allows up to six months in which the parents and their child must adequately demonstrate a good-faith effort toward rehabilitation. This can be done by showing that the minor has undertaken some form of treatment or that the parents have exercised their parental prerogative by administering their own punishment.

With over 30 years of experience in defending juvenile delinquency cases, Wallin & Klarich has cultivated a strong sensibility in handling cases of this kind. For more information regarding how the attorneys at Wallin & Klarich can assist you with your case, please call 888-749-0034 or visit www.wklaw.com today.

In 2010, the California legislature eliminated felony and misdemeanor penalties that previously existed for friendly sports betting pools, such as March Madness brackets and Super Bowl pools. Now, California Penal Code Section 336.9 considers these infractions subject to a fine not exceeding $250. However, the change in the law does not extend to online betting, or betting pools with more than twenty-five hundred dollars ($2,500) at stake.

For individuals involved in betting pools selling, the law remains the same and provides severe punishment for first time offenders including imprisonment in a county jail for a period of not more than one year, or in the state prison for up to three years, or by a fine not to exceed five thousand dollars ($5,000), or by both imprisonment and fine.

At Wallin & Klarich, our criminal defense attorneys in San Diego and throughout Southern California have years of experience representing individuals prosecuted for sport betting and online gambling. We will examine all the circumstances surrounding your case to make sure that you are entitled to the most favorable disposition of your criminal matter. Call Wallin & Klarich 24 hours a day, 7 days a week for a case evaluation at 1-888-749-0034 or contact us on the web at www.wklaw.com. We will be there when you call.

A recent California Appeals Court decision, People v. Wallace, held that the prosecution must prove that the defendant remained in California after failing to register a new address.

The Defendant (Wallace) was a convicted sex offender and was required to register as a sex offender as long as he remained in California. California Penal Code Section 290 (a)(1)(A) requires convicted sex offenders to renew their registration within five days of their birthday. In this case, Wallace did not reregister within five days of his birthday and was later arrested for violation of Section 290.

On appeal, Wallace argued that the prosecution did not prove that he remained in California for the time that he was unregistered. Section 290 only requires people to reregister if they remain in California. The prosecution argued that the jury could infer that Wallace remained in California because he had lived there for the previous five years. The Appeals Court rejected the prosecutor’s argument and held that the jury could not infer from the previous five years of residency that Wallace had remained in California after he failed to reregister. Thus, the conviction for violating Section 290 was overturned.

Registering as a sex offender affects your personal and business life. The requirements are often unclear, but the consequences for a failure to re-register could be dire. The attorneys at Wallin & Klarich have over 30 years of experience handling sex crime cases. Our attorneys have developed significant experience in most California jurisdictions and are aware of the local rules. If you or a loved one has been charged with a sex crime or for a failure to register as a sex offender, contact one of our Southern California sex crime registration attorneys immediately. The attorneys at Wallin & Klarich can be reached by phone at 1-888-749-0034 or through our website at www.wklaw.com.

A recent United States Supreme Court decision on the case of Marcus A. Wellons v. Hilton Hall, Warden determined that a defendant is entitled to a full hearing when there is possible misconduct on the part of the court.

Petitioner Marcus Wellons was convicted in Georgia state court of rape and murder and sentenced to death. The trial seemed like an open and shut case. However, after the trial’s conclusion, the defense counsel learned of the unusual events that transpired behind the scenes during the course of the trial, including unreported isolated contact between the jury and judge, a planned reunion with the jurors and bailiff, and “either during or immediately following the penalty phase, some jury members gave the trial judge chocolate shaped as male genitalia and the bailiff chocolate shaped as female breasts.” The judge did not report any of these events to the defense.

Neither Wellons nor any court knew what happened during these events or what prompted such “gifts.” Wellons’ attorneys repeatedly filed motions to develop evidence, seek discovery, and hold evidentiary hearings, all of which were denied. Wellons continued to appeal these decisions, and filed a petition for writ of certiorari (a request to the U.S. Supreme Court to review a decision).

The United States Supreme Court decided to review Wellons’ case and determined that the defendant was legally entitled to compel discovery and a full evidentiary hearing on his claim of possible court misconduct.

There is a potential for serious misconduct from the judge, jurors, and courtroom officials in criminal trials. It is important to have the experienced Southern California criminal appeals attorneys from Wallin & Klarich represent you if you or a loved one has been found guilty of a crime after a trial. Our attorneys have the knowledge and expertise you need if you are facing the need for an appeal. Our attorneys may decide it is important to look into courtroom misconduct issues in your case. The attorneys at Wallin & Klarich can be reached by phone at 1-888-749-0034 or through our website at www.wklaw.com. We will be there when you call.

A recent California Court of Appeal decision, People v. Katzenberger, held that there was prosecutorial misconduct when the prosecutor used an incomplete jigsaw puzzle to show how ‘beyond a reasonable doubt’ works.

The prosecution’s Power Point presentation consisted of eight puzzle pieces forming a picture of the Statue of Liberty. The first six pieces came onto the screen sequentially, leaving two additional pieces missing. The prosecutor argued it was possible to know what was depicted “beyond a reasonable doubt” even without the missing pieces. The prosecutor then added the two missing pieces to show the picture was in fact the Statue of Liberty. The trial court overruled defendant’s objection to the presentation. On appeal, the Defendant claimed that reversal is required because the prosecutor’s Power Point presentation was prosecutorial misconduct belittling the reasonable doubt standard. The Court of Appeals agreed.

As the California Supreme Court recently explained, “The standards governing review of misconduct claims are settled.” A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such “‘unfairness as to make the resulting conviction a denial of due process.’” (People v. Cash (2002) 28 Cal.4th 703, 733.) Under state law, a prosecutor who uses such methods commits misconduct even when those actions do not result in a fundamentally unfair trial. In this case, it is clear that the prosecution used methods used by the prosecutor (using an incomplete iconic image to distort the view of “beyond a reasonable doubt”) were deceptive.

The Appeals court cautioned that prosecutors who are tempted to enliven closing argument with visual aids that using such aids to illustrate the “beyond a reasonable doubt” standard is dangerous and unwise. The California Supreme Court has recognized the difficulty and peril inherent in such a task, and has discouraged ‘experiments’ by trial courts in defining the ‘beyond a reasonable doubt’ standard. By a parity of reasoning, similar perils undoubtedly attend a prosecutor’s attempt to reduce the concept of guilt beyond a reasonable doubt to a mere line on a graph, chart (or Power Point presentation).

In all criminal cases, it is important to have an experienced Southern California criminal appeals attorney on your side. The attorneys at Wallin & Klarich have over 30 years experience handling criminal and appellate matters. Our attorneys have the skills and expertise to provide you with the best possible defense. Prosecutors often engage in deceptive and reprehensible methods to persuade the jury and it is the duty of a good defense attorney to object and file a timely appeal. The attorneys at Wallin & Klarich can be reached by phone at 1-888-749-0034 or through our website at www.wklaw.com.

California is notorious for its three strikes law. The law has been on the books for some time, but there has been no real proof of its effectiveness in deterring crime.

The three strikes provision provides that a defendant who commits any felony with two or more “strike” priors must be sentenced to at least 25-years-to-life in state prison. (PC section 667(e)(2)). The two strikes provision provides that a defendant who commits a felony with one “strike” prior must be sentenced to twice the base term of the current felony. (PC section 667(e)(1)). This means if you have a strike on your record, committing another strikeable crime will double your penalty for the crime just committed. There is no time limitation on prior strikes.

The question that begs to be asked is what is a strike? A strike is a conviction in California for “violent” or “serious” felonies. These violent and serious felonies can be anything from murder to robbery. A strike can also come about in the case where a defendant is convicted of a felony where there was great bodily injury (this may include a DUI where there was a substantial injury). A strike can also stem from a juvenile conviction when the juvenile was 16 or 17 years old.

The good thing about the California strike laws is that that you are not subject to multiple strikes within the same case—if you get multiple strikeable counts in one case, you cannot be given double time for the second count because the first count was a strikeable offense. However, if you are convicted of two strikeable counts, they both will go on your record, making the next felony you commit a possible third strike.

There are ways that you can avoid strikes. The most obvious is not to commit a crime; but in the event that you are charged with a crime that would count as a strike, it may be possible to plead down to a non-strikeable offense. Judges also have the power to dismiss prior strikes “in furtherance of justice” even if the prosecution objects. In fact, the judge has the authority to determine if a prior offense qualifies as a strike. This leaves little or no determination for the jury.

If you or a loved one has been charged with a felony, you should contact the attorneys at Wallin & Klarich immediately. Our attorneys have over 30 years of experience in handling “strikeable” offenses. We have the skill and the knowledge to negotiate down strikeable offenses so as to minimize your future risk of incarceration. At Wallin & Klarich our Orange County strike crime defense attorneys work diligently to ensure you the best possible defense at every stage of the criminal process. The attorneys at Wallin & Klarich can be reached by phone at 1-888-749-0034 or through our website www.wklaw.com.

Why Having an Experienced Appellate Attorney Can Be the Difference between Jail and Freedom

A recent California Supreme Court decision, People v. Concha, held that the jury must be instructed about the provocative murder doctrine when deciding whether or not to convict the defendant of first degree murder.

The provocative murder doctrine states that an accomplice in an attempted murder can be convicted of first degree murder if the intended murder victim kills another accomplice in the course of the attempted murder. In this case, the defendant had conspired with two other people to kill Jimmy Harris. During the course of the attempted murder, Harris killed one of Concha’s coconspirators in self defense. Concha was subsequently put on trial and convicted of first degree murder for his coconspirator’s death.

The California Supreme Court ruled that the jury did not receive the right instructions on the provocative murder doctrine and remanded the case back to the trial court. The jury was instructed to find Concha guilty of first-degree murder if the attempted murder was committed willfully, deliberately, and with premeditation. However, the trial court failed to instruct the jury that for first-degree murder Concha must have personally acted willfully, deliberately, and with premeditation.

Concha might still be convicted of second degree murder or attempted murder, but both of these crimes are lesser offenses than first degree murder. Subdivision (a) of section 664 of the California Penal Code provides that, as a general matter, a person guilty of attempted murder must be punished by imprisonment for five, seven or nine years. It goes on to provide, that “if the [murder] attempted is willful, deliberate, and premeditated . . . , the person guilty of the attempt shall be punished by imprisonment . . . for life . . . . The additional terms provided . . . for attempted willful, deliberate, and premeditated murder shall not be imposed unless the fact that the attempted murder was willful, deliberate, and premeditated is charged in the accusatory pleading and admitted or found to be true by the trier of fact.” All of these elements must be proved at trial.

In all criminal cases, it is important to have an experienced criminal defense attorney on your side. The serious felony attorneys at Wallin & Klarich have over 30 years of experience handling violent crimes and felonies. Our attorneys have the skills and expertise to provide our clients with the best possible defense. Whether at the trial stage or the appeals stage, the attorneys at Wallin & Klarich quickly respond to our clients’ legal needs. If you or a loved one has been charged with a serious crime, contact the attorneys at Wallin & Klarich immediately. Our Southern California violent crime attorneys can be reached by phone at 1-888-749-0034 or through our website at www.wklaw.com.

A recent California Court of Appeals case, People v. Shaw, held that a jury instruction that instructed the jury to convict if the defendant had tendencies towards children as a class was correct, despite the defendant’s contentions otherwise.

Shaw was convicted of multiple counts of child molestation based on the CALCRIM jury instruction number 1122. Shaw argued that the trial court erred when it instructed the jury that it must find that Shaw’s conduct was motivated by “an unnatural or abnormal sexual interest in the child (italics added),” instead of referencing the protected class as the group, children. He claimed that, because California Penal Code section 647.6 protects children as a class, an unnatural or abnormal sexual interest in any one particular child is not covered by the statute’s prohibition.

Shaw argued that the standard instruction given, Judicial Council of California Criminal Jury Instructions (2006-2007) (CALCRIM) No. 1122, fails to inform the jury that the offense is only committed if an unnatural or abnormal sexual interest in children in general is the motivating factor for the offense. The Appeals Court disagreed stating that the statute does not merely protect children as a class; it protects “any child” in the State of California from being annoyed or molested by an adult motivated by an unnatural or abnormal sexual interest. (section 647.6(a)(1)).

If you or a loved on has been accused of child molestation or annoyance, you should call an experienced attorney at Wallin & Klarich immediately. Our Los Angeles child molestation defense attorneys have over 30 years of experience and have the skills and expertise to provide you with the best possible defense. The law is often unclear and vague and it is important that you hire an attorney who is well versed in this area of the law. The attorneys at Wallin & Klarich have this experience and are ready to help. Our attorneys can be reached by phone at 1-888-749-0034 or through our website at www.wklaw.com.