Posts Tagged ‘defense lawyer’

The most commonly prosecuted theft offenses involve the alleged taking of property from a retail merchant. Often the dollar value of the items is relatively small and the accused has no prior criminal record. Yet a conviction for petty theft is a serious matter. The law requires at least one day in jail, a “book and release” that can take as long as 20 hours to accomplish, a fine and possibly a theft counseling class for another 8 hours. The maximum sentence is up to 6 months in jail and a $2,000.00 fine. And the stigma from a petty theft conviction is difficult to overcome. Employers are understandably reluctant to hire a convicted thief.

San Diego Criminal defense attorneys often negotiate lesser offenses in these cases -especially to avoid jail – but the possible availability of a Civil Compromise is rarely explored.

In fact, in many other matters where a person is charged with a misdemeanor and the misdemeanor resulted in a victim incurring financial loss, the defendant’s charge may be dismissed through the process of civil compromise. Charges of minor vandalism, hit and run and theft are common examples of violations where a civil compromise may be appropriate.  While the result of a successful civil compromise is generally very advantageous for criminal defendants, as it results in a complete dismissal of the charges, it can be a tricky procedure to negotiate.

Civil compromises are subject to several statutory limitations.  For example, a civil compromise is not permissible when a misdemeanor is committed riotously or with the intent to commit a felony. Compromise is no longer available in domestic violence matters, violations of a court order, or crimes against elders or against children.  If none of the limitations apply, the alleged victim must then be “satisfied” for the injury they have suffered. This usually involves the payment of money, which can be problematic for an inexperienced attorney or a defendant without representation, especially considering that communicating the wrong message to a victim can be viewed as witness intimidation.  Once the alleged victim is “satisfied” for their loss, the Judge has the power to dismiss the case even over the objection of the Prosecutor. 

Regardless of these obstacles, in the 18 years that I have been practicing as a criminal defense attorney and negotiating civil compromises, it has been my experience that most people are willing to eventually agree to a civil compromise simply because it is the right thing to do in many theft-related situations. Retailers are more difficult: the store’s attorney must be convinced that the matter is atypical because of some special circumstances involving the alleged offense or the defendant.  A successful result requires an advocate who can explain why this option is in the best interest of the alleged victim, the court and the defendant, and if you are facing theft charges a competent attorney must explore this option.

We have obtained dismissal by compromise in many cases this year alone. Contact us to help with your case, (619) 232-5122, or  info@attorneylombardo.com.

No CommentsTags: book and release, case dismissed, civil compromise, clear a criminal record, criminal defense lawyer, criminal lawyer, defense lawyer, felony theft, misdemeanor theft, petty theft, san diego criminal defense attorney, san diego criminal lawyer, theft, theft crimes, vandalismRead More

The California Supreme Court reaffirmed the principals articulated in the landmark case of Cunningham , supra, by ruling that a defendant was entitled to attack the court’s imposition of the upper term in because, under the circumstances of this case, an express waiver of jury trial on aggravating circumstances was required and no such waiver occurred; and further, that in pleading no contest pursuant to a plea agreement providing for a sentence not to exceed a stipulated maximum and further stipulating to a factual basis for the plea, defendant neither waived his right to a jury trial on aggravating circumstances nor admitted facts that established an aggravating circumstance.

LESSONS FOR THE UNWARY CRIMINAL DEFENSE LAWYER

The case points out the following lessons for criminal defense attorneys:

1. A waiver of trial rights on aggravating factors should NEVER be given at the time that defendant enters a plea of guilty or not contest unless clearly bargained for in a plea-agreement AND expressly waived in open court with a fully informed and knowing understanding of what is being waived.
2. Carefully consider the factual basis for the plea together with any judicial admission made on behalf of or by the criminal defendant; these words will come back to bite. The attorney must guard against unnecessarily having the client admit to the existence of any aggravating factor, either generally or specifically.
3. Cases that proceed to a jury trial will require careful consideration of what aggravating and mitigating factors should be specifically put forward to the jury for their determination; special verdict forms must be crafted depending on the dictates on the case together with tactical considerations.

In this way, an attorney can possibly protect their client against the prosecutor reaching the maximum sentence.

The court began by noting that in Cunningham, 549 U.S. ____ [127 S.Ct. 856] the high court held that California’s determinate sentencing law (DSL) violates a defendant’s federal constitutional right to a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution by assigning to the trial judge, rather than the jury, the authority to make the factual findings that subject a defendant to the possibility of an upper term sentence

In the case before the California Court, the trial court sentenced defendant to the upper term of eight years on one charge and one-third of the six-year midterm on each of the other five charges (child molestation), with all terms to be served consecutively, for a total term of 18 years. The trial court selected the upper term because “[d]efendant took advantage of a position of trust and confidence to commit the crime pursuant to Rule 4.421(a)(11),” and imposed consecutive terms because the crimes were committed on different occasions or at separate locations. (Cal. Rules of Court, rule 4.425(a)(3).)

At the time that defendant entered his plea of no contest, he expressly waived his right to a jury trial on the substantive offenses, but this waiver did not encompass his right to a jury trial on any aggravating circumstances. Moreover, the defendant did not admit to the existence of any aggravating factor, either generally or specifically.

Decisions of the United States Supreme Court acknowledge that a defendant’s sentence may be increased above the statutory maximum based upon “facts… admitted by the defendant”. (Cunningham, supra, 127 S.Ct. at p. 865, quoting Blakely, supra, 542 U.S. at p. 303.) As discussed above, defendant’s plea of no contest constituted an admission to the elements of the charged offenses only, and not to any additional aggravating circumstances. The Attorney General argued, that defendant’s stipulation to the factual basis for the plea as described by the prosecutor constituted an admission to the aggravating circumstance that defendant took advantage of a position of trust in committing the offense. The court concluded otherwise.

No CommentsTags: aggravated sentence, criminal lawyer, defense lawyer, felony plea, felony sentencing, jury trial, plea agreementRead More