Domestic Violence is one of the most commonly charged criminal offenses in California. Depending on the seriousness of the injuries inflicted on an alleged victim of domestic violence, a defendant can may charged with misdemeanor domestic violence, or, in cases of serious injuries, of felony domestic violence which may be punished by imprisonment in a California State Prison, potentially for a lengthy sentence. This is particularly true if a jury finds that a defendant inflicted “great bodily injury” on a domestic violence victim.

Domestic Violence in California is in the headlines with a very interesting international twist. Yoshiaki Nagaya, a thirty-two year old officer at Japan’s consulate in San Francisco, has been charged with 14 counts of felony domestic violence against his wife. If found guilty of the charges, Nagaya could face close to twenty years in state prison, depending on when the alleged domestic abuse occurred – for example, over a period of days, months or years – and the seriousness of his wife’s injuries – for example, did she require extensive medical treatment or procedures as a result of her injuries. Nagaya’s bail was set at $350,000, evidencing the severity of the alleged crimes.

According to the San Mateo County District Attorney’s Office, Nagaya’s domestic abuse ranged from pushing and shoving, all the way to violent assaults, including with weapons such as a screw driver, causing serious injuries such as stab wounds and knocking out his wife’s teeth.

Nagaya has entered a not guilty plea to all charges, however, he does not have diplomatic immunity for his alleged crimes because they are private, having no relationship or bearing on his governmental position. Accordingly, Nagaya’s case is proceeding to trial like a typical felony prosecution, with a preliminary hearing scheduled for June 14, 2012. At the preliminary hearing, the judge will determine if there is sufficient evidence that Nagaya committed the crimes for the case to proceed to trial.

In a major development in California’s anti-marijuana laws, the California Assembly voted to approve Senate Bill (SB) 1449 which reduces simple possession of less than one ounce of marijuana from a misdemeanor to an infraction. The Bill must now be approved by the Governor to become law.

While the penalty for possession of less than one ounce of marijuana will not change – it remains a maximum $100 fine – the reduction of this offense from a misdemeanor to an infraction essentially decriminalizes possession of less than one ounce of marijuana. This is a critical development in California criminal law.

An infraction is not punishable by imprisonment. Conversely, misdemeanors are generally punishable by a maximum fine of $1000 and/or a county jail term of one year. Persons arrested for a misdemeanor must be arraigned (enter a plea of not guilty, guilty or no-contest) and, unless the charges are dismissed, either settle their case with a plea bargain or take their case to trial.

The passage of SB 1449 will help to lessen the burden on California’s criminal courts clogged with minor marijuana possession cases.

Sincerely,
Garret Weinrieb
Valerio | Weinrieb Criminal Defense Law Firm


If you or someone you care about is facing criminal investigation or criminal charges of any type, please contact the criminal defense attorneys at Valerio|Weinrieb.  We can be reached twenty-four hours a day, seven days a week at (818) 933-6555, through our toll-free number at (877) 7NO-CUFFS (877-766-3833), or through the confidential and secure email form on the firm’s website at www.VWattorneys.com.






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On Thursday, September 9, 2010, Loenel Pelayo, a 45-year-old church pastor from Carson, California, was arrested for allegedly sexually assaulting a 14-year-old girl who was part of a church youth group. The alleged sexual assault allegedly occurred in more than one location, which could greatly increase Pelayo’s punishment if convicted of this criminal offense. If charged with committing a lewd act against a child, Pelayo could be sentenced to state prison for up to 3 years, and possibly more if assaults occurred at more than once location.

California law (California Penal Code section 288) punishes lewd sexual acts committed against children. A lewd act committed against a child, with the intent to sexually arouse either the person committing the lewd act or the child, is a felony. The punishment for committing a lewd act against a child depends upon the act committed (the severity of the lewd conduct), the age of the child (younger or older than 14-years-old), and the age of the perpetrator.

When, as in this case, the alleged lewd act is committed against a child of 14 or 15 years of age (here, the victim was 14), and the alleged perpetrator is at least 10 years older than the child victim, the maximum punishment is a sentence of up to three years in state prison. However, if the same act is committed against a child who is less than 14-years -old, the potential punishment greatly increases due to the younger age of the child. A lewd act committed against a child less than 14-years-old is punishable by up to eight years in state prison.

It should be noted that California Penal Code 288 is only one of several crimes that can be charged in cases of sexual assault against a child. Charges such as rape, statutory rape, and other illegal sex crimes are all chargeable as felonies punishable by imprisonment in a state prison.

Sincerely,
Garret Weinrieb
Valerio | Weinrieb Criminal Defense Attorneys


If you or someone you care about is facing criminal investigation or criminal charges of any type, please contact the criminal defense attorneys at Valerio|Weinrieb.  We can be reached twenty-four hours a day, seven days a week at (818) 933-6555, through our toll-free number at (877) 7NO-CUFFS (877-766-3833), or through the confidential and secure email form on the firm’s website at www.VWattorneys.com.






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People v. Roman Polanski — Oscar winning director Roman Polanski was arrested in Los Angeles in 1977 for unlawful sexual intercourse with a minor.  Mr. Polanski entered into a plea agreement and pled guilty to the charges in exchange for “time served” as a sentence.  The judge, however, rejected the plea agreement and set a hearing to sentence Polanski to additional jail time.  Prior to the sentencing hearing, Polanski fled to France – which refused to extradite him to the United States — and he has never returned.  In September 2009, while in Switzerland for a film festival, the Swiss police arrested Polanski at the request of the U.S. authorities.  The United States formally requested his extradition in October, but the Swiss authorities refused the request and released him.

The victim in the Polanski case is now 45 years old and has publicly forgiven him.  She also filed a formal request that Los Angeles prosecutors drop the charges against him.  The victim stated that the continued publication of the details of the incident are taking an emotional toll on her and her family and that she wants to be able to move on from the incident and stop reliving the details of the assault.  Despite these wishes, the prosecutors are still pursuing Polanski, and intend to arrest and sentence him should he ever come to the United States again.

In many sex crimes and domestic violence cases the victims state that they wish for the charges to be dropped or that they do not want to participate in the prosecution of the case.  While this may affect the prosecutor’s decision to proceed with the case, it is not (as in the Polanski case) the determining factor on whether to proceed with or to drop a case.  

Contrary to popular belief, victims in sex crimes and domestic violence cases do not choose whether to prosecute or drop a case — that decision lies solely with the prosecutor.  Prosecutors represent all of the people of the State of California and the belief is that they have an interest in prosecuting offenders whether the victim cooperates or not.  Additionally, even if a victim refuses to testify, there may be sufficient evidence for the prosecutor to win at trial by using witness statements, the defendant’s statements to police, or other evidence of the crime.

This article highlights the ongoing attacks by Los Angeles law enforcement on medical marijuana. Law enforcement continues to criminalize the legitimate, lawful cultivation and dispensing of medical marijuana to qualified patients.

On Thursday, August 26, 2010, three men were killed after an alleged drug deal went bad. Two of the three men killed are believed to have been selling marijuana first lawfully acquired from medical marijuana dispensaries. The suspect, who allegedly confessed to the murders, was arrested on Monday, August 30, 2010 with $20,000-$25,000 worth of marijuana in his car. The District Attorney’s Office charged him with eight felony counts, including three counts of special circumstance murder which makes him eligible for the death penalty.

Los Angeles County Sheriff Lee Baca held a press conference about the incident and used it to address the alleged dangers of lawfully operating marijuana clinics. Baca’s primary argument was that medical marijuana dispensaries have been “hijacked” by criminals because they provide easy access to marijuana that can then be sold for higher profits. Baca apparently believes that medical marijuana dispensaries themselves can lead to violent crime.

Not only is Baca’s position not supported by any empirical data or evidence, but it is an obvious attempt to further California’s and Los Angeles’ ongoing attack against medical marijuana, which has shown to be a critical treatment for many seriously ill patients, which includes a vast variety of medical illnesses.

The passage of Proposition 215 in 1996 legalized the use of medical marijuana in California. Proposition 215 allows qualified patients and their primary caregivers to cultivate and possess marijuana in connection with the treatment and care of certain illnesses, provided that they do not distribute or sell it.

In order for a patient to qualify under the act, they must show that (1) they suffer from a qualifying condition or illness (such as cancer, anorexia, AIDS, chronic pain, spasticity, arthritis, migraines or another serious illness), (2) a physician has determined that the patient will benefit from the use of medical marijuana in treating their condition, (3) the medical marijuana is for personal use and not sold or distributed, and (4) the amount a person possesses or grows is consistent with the medical needs of the patient. Provided that patients qualify under the act, they are generally exempt from “possession of marijuana” or “marijuana cultivation” criminal charges.

While the medical marijuana laws were designed protect seriously ill patients from conviction for possession or growing marijuana, authorities in Los Angeles continue to raid lawfully operating dispensaries and seek the prosecution of individuals who lawfully possess and cultivate marijuana. While the law on medical marijuana is still evolving, one thing is clear – there is an ongoing war on medical marijuana in Los Angeles that is severely harming the lives of those who rely on medicinal marijuana to treat many serious medical conditions.

Criminal law is constantly changing with new laws, amendments and court rulings.  Valerio | Weinrieb places the highest value on staying up-to-date of any changes in the law that might affect our clients’ legal rights.  The following are a few examples of recent significant criminal law developments:

• Law Enforcement in Los Angeles May Crosscheck Immigration Status of Arrestees: the fingerprints of persons arrested in L.A. will now be crosschecked with Department of Homeland Security immigration records in an effort to deport undocumented individuals charged with certain crimes.  The following article provides additional information on this issue: http://www.presstelegram.com/breakingnews/ci_13216122
• DUI Defendants May Challenge Accuracy of a Breath Machine Based on the Ratios It Uses to Convert Breath Alcohol Content to Blood Alcohol Content:  When a driver is detained on suspicion of driving under the influence of alcohol (DUI), they may be asked to submit to a chemical analysis to determine if their blood alcohol content exceeds the legal limit of .08%.  If the driver chooses to submit a breath sample they blow into a breath machine.  The breath machine measures the alcohol content in the suspect’s breath and then applies a mathematical conversion ratio to that value to generate a number for the equivalent percentage of alcohol in the blood — even though no blood has actually been sampled.  Recently, the California Supreme Court held that, in addition to other defenses, DUI defendants may challenge the accuracy of a breath machine based on the application of the conversion ratio by that machine.  In certain cases, this may provide a DUI defendant with an additional point of attack at trial.
• United States Supreme Court Decision — Arizona v. Gant — Probable Cause Standard For Law Enforcement Searches of Vehicles Strengthened to Protect Privacy Rights: Recently, the United States Supreme Court clarified the rules for vehicle searches by police officers.  Police may search the passenger compartment of a vehicle incident to a recent occupant’s arrest ONLY if it is reasonable to believe (1) that the arrestee might access the vehicle at the time of the search (for a weapon or to destroy evidence) or (2) that the vehicle contains evidence of the offense of arrest.  In other words, the arrest of a vehicle occupant, in itself, does not give the police the right to search the vehicle to see what they can find — the police can only search if there might be evidence of the suspected crime in the vehicle.  In the case before the Supreme Court, for example, the arrest was made outside of the vehicle on an outstanding warrant for driving on a suspended license.  Because there could be no evidence in the vehicle that would relate in any way to the offense at issue (driving on a suspended license), there was no basis for the police’s search of the vehicle.  This clarification of the law protects everyone’s privacy rights and may apply to exclude evidence in many cases where the police conducted a vehicle search with no reasonable basis to do so.