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Misdemeanor Diversion Can Get Your Case Dismissed

Misdemeanor diversion under Penal Code section 1001.95 is possible for most misdemeanor charges. However, it is not available for misdemeanor violations of:

  • Penal Code § 273.5 (domestic violence);
  • Penal Code § 243(e) (domestic violence battery);
  • Penal Code § 646.9 (stalking); or
  • Any criminal conviction that requires registration under section 290 (sex offender registration).

Applying for Misdemeanor Diversion

  1. Ask the prosecutor for diversion. Many prosecutors offices already have a misdemeanor diversion program that they offer to defendants facing non-violent misdemeanor charges. Sometimes the prosecutor will offer diversion before any they file a criminal case. If the prosecutor does press charges, the defendant can still negotiate a diversion program with the prosecutor.
  2. Ask the Judge for diversion. Under Penal Code section 1001.95, the Judge may grant diversion even over the objection of the prosecutor. If the judge does grant diversion, the defendant must comply with the terms, conditions, and programs as ordered by the Judge.

Benefits of Diversion

If the judge grants diversion, criminal proceedings are suspended. If the defendant complies with all the terms, conditions, and program ordered by the Judge, at the end of the diversion period the judge must dismiss the case against the defendant.

Length of Diversion

Although diversion can be up to 24 months, it typically lasts 6 months to one year. For some prosecutor diversion programs, the length of diversion is 90 days. However, the defendant can ask the Judge to terminate diversion prematurely once they have successfully completed all conditions and programs.

Failing Misdemeanor Diversion

If the defendant does not comply with the terms and conditions of diversion, the judge will hold a hearing to determine whether to resume criminal proceedings. If the judge finds that the defendant has not complied with the terms and conditions, the criminal case against the defendant resumes.

Terms of Diversion

Terms and conditions of diversion are meant to address the criminal allegations. For example, if the charge is drunk in public, the judge could order the defendant to attend AA meetings or an alcohol course. For a petty theft charge, the judge could order the defendant to pay restitution for their damages and attend a theft awareness course.

How Much Does a Criminal Defense Attorney Cost?

Attorney cost varies depending on who represents you. There are three options for representation in criminal defense cases:

  • Self-representation
  • Public defender
  • Private attorney

Self-representation

Self-representation, commonly known as “in pro per,” has no attorney cost. However, you could have to pay court costs and discovery charges.

Public Defender

The public defender charges a minimal fee for representation, although the judge can chose to waive this fee. You could have to pay court costs and discovery charges.

Private Attorney Cost

Private attorney cost varies depending on the attorney and the facts of your case. Most attorneys require a retainer, but there are attorneys willing to do work hourly. Hourly fees vary, but typically criminal defense attorneys charge $250-750 per hour.

If you hire a private attorney, you will likely have to pay court costs and discovery charges.

What is a Retainer?

attorney cost

A retainer is a contract for a fixed amount of money in exchange for legal services. The retainer can be a lump sum that covers the entire case, or a down payment on the attorney’s hourly work*.

*If the retainer is a down payment on hourly work, you are entitled to refund of any unused funds when you case is concluded.

How much is a typical retainer?

Retainers typically range from $2,500 for misdemeanor cases to $15,000 for felony cases. Most attorneys charge extra to take the case to trial.

Can I negotiate the retainer amount?

Many attorneys are willing to negotiate the retainer amount and take monthly payments. You can also ask the attorney to divide the case into sections.

For example, you can set the attorney cost up to arraignment, with another payment due if the case proceeds past arraignment.

Whatever agreement you make with an attorney, be aware that you get what you pay for. If you want premium services, you should pay premium dollars.

attorney cost

Caution Against Self-Representation

Generally it is not a great idea to represent yourself. You likely do not have the same abilities of an experienced criminal defense attorney, including legal skills, experience with courtroom proceedings, and connections to district attorneys, judges, and court staff.

Do not represent yourself solely because you are worried that your attorney will not fight for you. Instead, take the time to hire an attorney that you trust and with whom you enjoy working.

attorney cost

Law Offices of Russell Brown

Criminal Defense Lawyer

I Just Got Arrested, Now What?

After you are arrested, continue to assert your 4th Amendment right to refuse search (except when arrested for DUI) and 5th Amendment right to remain silent.

arrested

right to remain silent

It is very important to remain silent because your own statements can be used to convict you. Wait until your attorney is present before you make any statements to police.

Statements that seem innocent such as, “I didn’t mean to do it,” “I drank much earlier today,” or “he pushed me first,” are actually confessions to a crime.

Tips and Tricks to Remaining Silent

arrested

Confessions are an easy way for police to secure an arrest and for prosecutors to obtain a conviction. Although you have the right to remain silent, the police have developed strategies to get you to talk.

“if you didn’t do anything wrong, tell me what happened.”

You may be guilty of a crime even though you didn’t do anything “wrong.” For this reason, it is best to say nothing to police until your attorney is present.

waiting for you to start talking

If you start a conversation with police, you have waived the right to remain silent. Remember: “Any statements you make can be used against you in a court of law.”

“you have the right to remain silent…”

The Rule

If police do not give you this well-known Miranda warning, your confession could be excluded from criminal proceedings.

Miranda Limitation

However, the Miranda rule only excludes confessions that occur during “custodial interrogations.” Those are interrogations that occur in police custody, typically in a holding area or at a jail.

Police Strategy

Police usually follow the Miranda warning with “Do you want to waive these rights and talk to me?” You can invoke your right to remain silent by stating, “No. I don’t want to talk to you.” If you remain silent, police may continue to talk to you. You can re-invoke your right at any time by saying “I don’t want to say anything else, I want to talk to a lawyer.”

right to refuse search

It is also important to refuse search because evidence found during the search can be used to convict you. If you consent to search of your property, you waive your right to contest the search in court.

Exception: Arrested for DUI

If you are arrested for DUI, you must provide a blood, breath, or urine sample to determine you blood alcohol concentration (BAC). Failure to provide a sample can result in additional criminal charges AND further DMV action against your license.

Tips and Tricks to Refuse Search

arrested

Consensual search is any easy way for police to secure an arrest and for prosecutors to obtain a conviction. Although you have the right to refuse search, the police have developed strategies to convince you to consent.

“sign a consent to search form to get your phone back”

If police believe there is evidence of a crime on your phone, they will not return it to you unless you consent to search. We all “need” our smart phones, but you will likely be better off refusing search and picking up a temporary phone.

“if you don’t consent, we will get warrant”

You have the right to insist police obtain a warrant, except when you are arrested for DUI. Requesting a warrant will delay the police, so be polite and let them know you respect them and their job.

“if you have nothing to hide, let us search”

Your personal items are private and you have the constitutional right to refuse search.

“if you work with me, I’ll work with you”

Even if you cooperate with police, they are not legally required to help your case.

Russell Brown
Criminal Defense Attorney

Police Stops and Your Rights

tips on safely interacting with police during stops

Knowing your duties, rights, and law enforcement objectives can help you safely navigate an encounter with law enforcement. Below is a brief discussion of things to consider if the police stop you.

step 1: know your dutiespolice

police

Identify Yourself

You must identify yourself if police have probable cause to believe you committed a crime, have a warrant for your arrest, or are in violation of probation or parole.

Provide Your Driver’s License

You must provide your driver’s license if you are pulled over while driving.

Probation or Parole

You must admit that you are on probation or parole if doing so is a condition of your probation or parole.

step 2: know your rights

police

Remain Silent (5th Amendment)

Except for the duties above, you are not required to respond to questions.

Refuse Search (4th Amendment)

You do not have to allow police to search you, your possessions, or your vehicle, unless submitting to search is a condition of probation or parole.

Ask if You are Free to Leave (4th Amendment)

If you are not free to leave, law enforcement must have a reason for detaining you.

step 3: know the police

police

Authority

Authority figures do not like signs of disrespect, such as being ignored, or rude, impolite, or offensive behavior.

Crime-fighting

The modern policing focuses on crime-fighting. If police believe you are obstructing or delaying them from this objective, the could arrest you or use force against you.

Armed

Consider that most police are armed and some carry fully automatic assault weapons.

Immunity

Officers are immune to most civil lawsuit and rarely face criminal prosecution or internal discipline. Therefore, police have few if any consequences for harming you or violating your rights.

What Can I Say to Police?

  1. I respect law enforcement and the job you do.
  2. However, I am not going to consent to a search of myself, my property, or my vehicle.
  3. I will not resist you, but I will not consent to my detention, search, or seizure.
  4. Nor will I answer any questions without my lawyer present.
  5. With that being said, am I free to leave?

What Can I Do if Police Violated My Rights?

If you can prove police misconduct, the judge could dismiss your criminal case. You could also sue the law enforcement for violating your established constitutional rights.

Firearm Prohibition for Misdemeanor Domestic Violence

Firearm Prohibition

Current law places a ten year firearm prohibition on person convicted of certain violent crimes. Basically, this means a person cannot own, possess, control, purchase, or receive a firearm.

This includes a misdemeanor conviction for domestic violence.

Assembly Bill 3129

Beginning January 1, 2019, a conviction for misdemeanor domestic violence (Penal Code Section 273.5) will result in a lifetime firearm prohibition.

The punishment for violating this law is a maximum fine of $1,000 and/or up to one year in jail or prison. Because prison is a possible sentence, this violation can be charged as a misdemeanor or a felony.

firearm prohibition

Which Crimes Result in Ten Year Firearm Prohibition?

The ten year prohibition applies to many violent misdemeanors, including battery, domestic violence, criminal threats, and brandishing a weapon.

For a list of all misdemeanor convictions that require a firearm prohibition, see Penal Code Section 29805.

How Long Does the Prohibition Last?

A misdemeanor domestic violation conviction under Penal Code Section 273.5 results in a lifetime ban. However, the law does not take affect until January 1, 2019.

All other misdemeanors listed under Penal Code Section 29805 result in a ten year ban.

firearm prohibitionContact

924 Anacapa Street, Suite 1-T
Santa Barbara, CA 93101
(805) 635-7766
RABLAW805@gmail.com

Assembly Bill 931 Aims to Reduce Use of Deadly Force by Police

Current Status of Assembly Bill 931

As of October 16, 2018, Assembly Bill 931 is in the Senate Rules Committee of the California State legislature.

Proposed Changes

Assembly Bill 931 aims to reduce the use of deadly force by law enforcement in California. Above all, it declares that every person has a right to be free from excessive force by officers acting under color of law.

assembly bill 931

First, officers would be required to deescalate a situation when it is safe, feasible, and reasonable. Officers may use time, distance, communications, and available resources to deescalate. However, officers would not be required to retreat before using force.

Next, it would limit the use of deadly force by a peace officer to those situations where it is necessary. Force is necessary if an objectively reasonable peace officer in the same situation would conclude that there was no reasonable alternative to the use of deadly force.

assembly bill 931

Further, the officer would have to believe that deadly force would prevent imminent death or serious bodily injury to the peace officer or to another person.

Furthermore, Assembly Bill 931 would prohibit the use of deadly force by a peace officer in a situation where an individual poses a risk only to himself or herself.

Use of Force When the Suspect Flees

Additionally, AB 931 would limit the use of deadly force by a peace officer against a person fleeing from arrest or imprisonment. During flight situations, officers could only use deadly force if:

  • The officer has probable cause to believe that:,
    • The person has committed a felony involving serious bodily injury or death, OR
    • The person intends to commit a felony involving serious bodily injury or death, AND
  • There is a threat of imminent death or serious bodily injury to the officer or to another person if the subject is not immediately apprehended.

assembly bill 931

2020 Start Date

Assembly Bill 931’s changes toPenal Code 835a would become effective January 1, 2020. This would allow law enforcement the time needed to retrain officers on the use of deadly force.

Current Law

Under current law, officers may use reasonable force to make an arrest, prevent escape, or overcome resistance. Before doing so, the officers must have reasonable cause to believe that the suspect has committed a public offense.

Officers need not retreat or desist due to resistance or threatened resistance of the suspect. An officer is not an aggressor and may use reasonable force in self-defense.

assembly bill 931Contact

924 Anacapa Street, Suite 1-T
Santa Barbara, CA 93101
(805) 635-7766
RABLAW805@gmail.com

When Do SB 1437 Changes to Felony Murder Rule Start?

Felony Murder Rule Relaxed by Senate Bill 1437

On September 30, 2018, Governor Brown signed Senate Bill 1437 into law. SB 1437 relaxed the felony murder rule. Beginning January 1, 2019, a participant in a felony is guilty of felony murder only if he or she:

  1. Was the actual killer, OR
  2. With the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree, OR
  3. Was a major participant in the underlying felony and acted with reckless indifference to human life.

When Does SB 1437 Take Affect?

Senate Bill 1437 takes affect beginning January 1, 2019. Qualified inmates convicted before that date can petition to be re-sentenced.

felony murder

Qualifying for Re-sentencing

There are three qualifications for re-sentencing.

First, a complaint, information, or indictment was filed against the defendant that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine.

Second, the defendant was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the defendant could be convicted for first degree or second degree murder.

Lastly, the defendant could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019.

How to Petition for Re-sentencing

The first step is to file a petition with the sentencing court. The inmate must include a declaration by the inmate that he or she meets the qualifications for re-sentencing.

The second step is for the court to determine whether the inmate meets the three qualifications for re-sentencing.

If the inmate meets the qualifications for re-sentencing, the third step is a hearing. This hearing is called an “Order to Show Cause.” At that hearing, the court will determine whether to vacate the murder conviction.

Felony Murder Re-sentencing

The court may recall the felony murder sentence and re-sentence the inmate on any remaining counts.

The inmate can be sentenced as if he or she had not been previously been sentenced. However, the new sentence cannot be greater than the initial sentence.

felony murderContact

924 Anacapa Street, Suite 1-T
Santa Barbara, CA 93101
(805) 635-7766
RABLAW805@gmail.com

Assembly Bill 1511 – Bringing Back Property Crime Enhancements

***As of September 29, 2018, Assembly Bill 1511 is awaiting decision by Governor Brown.***

Assembly Bill 1511

Assembly Bill 1511 would impose sentencing enhancements for property damage. It replaces former Penal Code Section 12022.6, which expired on January 1, 2018. Assembly Bill 1511 also allows the legislature to adjust for inflation every five years.

Enhancement Requirements

There are several requirements for imposing property damage enhancements. First, the property damage must occur during the commission or attempted commission of a felony. Second, the defendant must take, damage, or destroy the property. Third, the defendant intended to cause that taking, damage, or destruction,

The court may impose an additional term as follows:

  1. Two years if the property loss exceeds two hundred thirty-five thousand dollars ($235,000).
  2. Three years if the property loss exceeds one million five hundred thousand dollars ($1,500,000).
  3. Four years if the property loss exceeds three million seven hundred thousand dollars ($3,700,000).

assembly bill 1511

Adding Damages

Damage from multiple felonies may be added together if two conditions are met:

  • The total losses to the victims from all felonies exceed the amounts above;
  • The felonies arise from a common scheme or plan.

“Loss” Defined

The term “loss” has the following meanings:

  1. The fair market retail value of counterfeited computer software.
  2. The fair market retail value of counterfeited, but unassembled components of computer software packages.assembly bill 1511

    Urgency

    If passed, this bill would immediately take effect. According to the bill, this is because it is necessary to restore a valuable deterrent against excessive takings. Specifically, the bill seeks to deter sophisticated white collar fraud schemes.

    Many ‘white collar’ crimes are especially difficult to prosecute. This is because the perpetrators are often sophisticated criminals who have attempted to conceal their activities through a series
    of complex transactions. Further, without these enhancements, the theft of property worth millions of dollars is punished the same as theft of property worth a few hundred dollars.

    assembly bill 1511Contact

    924 Anacapa Street, Suite 1-T
    Santa Barbara, CA 93101
    (805) 635-7766
    RABLAW805@gmail.com

Senate Bill 1142 – Changing How Jails Release Inmates

Senate Bill 1142

Senate Bill 1142, also known as “The Getting Home Safe Act,” would change how inmates are released from county jail.

Changes Proposed by Senate Bill 1142

First, sheriffs would release inmates between 8 a.m. and 5 p.m. If inmates are not released during that time, they could remain in jail until normal business hours the next day.

Second, inmates could request transportation from jail up to 100 miles away.

Third, sheriffs would provide a safe place for inmates to wait for a ride. The place would have equipment to charge a cell phone and access to a free public telephone.

Fourth, sheriffs would provide a 3-day supply of medicine to anyone incarcerated for more than 30 days.

Fifth, inmates could request transportation from jail to a drug or alcohol rehabilitation facility.

Senate Bill 1142
Inmates are often released from jail with nowhere to go and no way to call for a ride.

Why do we need Senate Bill 1142

The late-night release of inmates is dangerous for inmates. It is also dangerous for the public health and safety of the community at large.

It is especially dangerous for women, including transgender women. Such women can be targets for physical abuse, sexual abuse, and sex trafficking.

Additionally, inmates with mental illness or substance addiction are unlikely to be able to access treatment services late at night.

In 2014, California passed legislation to allow county jails to voluntarily participate in a program to reduce the number of late-night releases. However, few jails changed their release policy. Instead, jails continue to regularly release inmates during late-night hours.

These release policies are cruel and fail to acknowledge lived trauma that inmates have experienced. This is particularly true of women who are involved in the criminal justice system.

The Legislature intends to ensure that people are released quickly from county jails. Further, inmates should be released under conditions that protect their health and maximize the likelihood of their success. Therefore, the legislature will impose statewide release standards for county jails to follow.

senate bill 1142Contact

924 Anacapa Street, Suite 1-T
Santa Barbara, CA 93101
(805) 635-7766
RABLAW805@gmail.com