Los Angeles Criminal Defense Attorney

Loved one in Jail? Call A Lawyer BEFORE You Call a Bail Bond Company

July 1st, 2014

You find out that a loved one has been arrested in jail somewhere in California. You want to get him or her out immediately.  It’s understandable.  But before calling one of the hundreds of bail bond companies

 1) A Lawyer Can Tell You if a Bail Reduction or “O.R.” Release is Possible.

Before you call a bail bond company to take your loved one out of jail, call a qualified criminal defense attorney first. A bondsman will gladly take your money, but it may not be money well spent. In many cases, an attorney can go into court to get you or your loved one an “Own Recognizance” or “O.R.” release. An “O.R.” release means that you do not have to post any bail. If an O.R. is not possible, a lawyer may be able to get a lower bail. In some cases, a lawyer can prevent charges from being filed by the prosecutor, but if you bail out immediately after an arrest, then the money you paid to the bondsman is non-refundable, even if no charges are filed. Nobody wants to sit in jail any longer than necessary, but if money is tight and you know you need to hire a criminal defense lawyer,it may be worth waiting a couple of days for your lawyer to talk to police, prosecutors, and the judge.

2) Good Lawyers Know Good Bail Bond Companies

All too often, criminal defense lawyers get calls from people who have already spent all their money on bail and cannot afford to hire a lawyer. If bail is unavoidable, a good criminal defense lawyer will refer you to reputable bond agencies that will work with you on a payment plan that will allow you to stay out of jail and still afford an attorney.

3) Even if you Bail Out After Your Arrest, Bail Can Be Raised At Your First Court Date

Even if you bail out after your arrest, the prosecutor can ask the court to raise your bail once charges are filed. That’s right, you could spend thousands of dollars to be bailed out after an arrest, and then forced to spend thousands more after the first court date .An attorney can advise you about whether or not this will happen and can take steps to prevent this from happening.

 

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Los Angeles County DUI First Offenders – Ignition Interlock Device Requirement

July 1st, 2014

Yes, it’s true.  If you were arrested for a first DUI in Los Angeles County after July 1, 2010 and you subsequently convicted of DUI, the Califorina DMV will send you a letter telling you that you are required to install an ignition interlock device (IID) on your car.  You will be required to drive with the IID for a period of 5 months after installation.   This rquirement is mandated by the DMV not the court.  If you are convicted of a DUI, the court will notify the DMV of the requirement shortly after your court date.  So what happens if you decide to drive without getting the IID installed?

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What is Joint Suspension in a California Criminal Case?

July 5th, 2013

One of the terms that people frequently hears tossed around the corridors of a criminal courthouse are clients asking their attorneys if they can get a “joint suspension.” I’ve found that there is a bit of confusion as to what, exactly, “joint suspension” means.

Here’s the deal:

In California, a court  sentences a defendant to probation in one of two ways, either “Imposition of Sentenced Suspended” and “Executed of Sentence Suspension.”   Joint suspension is “Execution of Sentence Suspended”  Here’s the difference:

“Imposition of sentence suspended” is the default probationary sentence.  The defendant is sentenced to certain terms and conditions of probation but there is no set penalty or punishment if the defendant violates probation.

“Execution of Sentence Suspended” or “joint suspension” is also a probationary sentence, but the punishment for violating probation IS set.  Usually the punishment for violating probation is a state prison sentence…which is why it’s called “joint suspension” (an old slang term for prison is “the joint” and your sentence in “the joint” is suspended).

So if you are put on “joint suspension” probation, and you violate your probation, you automatically get sentenced to prison?  Not necessarily. You still have the right to a probation violation hearing at which your attorney can provide evidence in your defense as well as any mitigating factors in your favor.

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Pay Off Those California Traffic Tickets

June 14th, 2013

If you have an old California traffic ticket in collections in the California Court system, you probably think it’s a money problem. You want to pay off the ticket, but you just don’t have the cash. GC Services, Alliance One, or any other 3rd party collection agency contracted by the courts tend to demand about $1000 per unpaid California traffic ticket. Maybe you have multiple tickets in collections and the collection agency is asking for $3000, $4000, or more. Every time you get the collection notices in the mail, or the annoying calls on the phone, you just wish you had the money to pay them off and move on with your life. Maybe you even set up a payment plan because you are hoping they will see your good intentions and give back your suspended drivers license. All the while you are riding the bus, catching rides from friends, or driving on your suspended license while looking over your shoulder. Every day is groundhog day and you are hoping that today is not the day you get pulled over. Nobody wants to have their car impounded and nobody wants to go to jail.

This is exactly how the collection agencies want you to think. Their goal is to get you thinking that a pile of money is the only way out for old California Traffic Tickets. Their motto is “Pay us our exorbitant fines in full, until then you are stuck”. They also force you to believe that if you don’t pay them, the problem will get worse. I have had hundreds of clients tell me over the phone that collection agents from GC Services have threatened them with all sorts of problems for non payment. Things like, “it will go on your credit report”. “I’m going to flag your file as non-compliant if you don’t make a payment by the end of the day”, and other spurious collection techniques. While it is true that having an unpaid California traffic ticket can trigger a suspension of your license, a warrant for your arrest, and increased fines, these penalties are not issued by the collection agency. The collection agency exists to do one thing and one thing only and that is to COLLECT. The collection agency does not solve your problem, they don’t give legal advice (or at least they shouldn’t), and they definitely aren’t looking out for your best interests. These are not the people you want to talk to if you are looking to find the cheapest and best solution to the problem on a California traffic ticket.

I am here to tell you that 9 times of 10, paying the collection agency is a terrible idea. The collection agency will do everything they can to make you think that paying is your only option, but in reality you usually have the option of appearing in court on your California traffic ticket. Appearing in court is always a better option than paying collections. You can appear in court on your own behalf, or you can send an attorney to appear for you. In many cases hiring a lawyer is cost effective because the lawyer can save you so much money on your California traffic ticket that it offsets the price of the retainer. By hiring a traffic ticket lawyer or fighting the ticket(s) on your own, you can almost always get the fines reduced significantly compared to the amount requested by the collection agency. You can usually get your license back immediately upon appearing in court as well, instead of waiting until paying the case is paid in full like the collection agency told you. To top it all off, by appearing in court you can often have charges reduced or dismissed or obtain a referral to traffic school. These things will save you money down the road when it comes time to pay for car insurance to go with your newly reclaimed drivers license.

If you have questions about your California traffic ticket in collections, or need help with a suspended license, DUI, or other California traffic ticket problem, send me an email at attorneygallagher@gmail.com or give me a call at 800-797-8406. If you are a tweep, you can follow me and catch helpful legal tips @ticketfixers. You can also read our blog posts on Flock of Legals.

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What Are “wobblers” in California Criminal Law?

June 2nd, 2013

Like any other profession, the world of criminal law has its own lingo.    Go into any criminal lawyers office, any courtroom and you’ll hear the word “wobbler” thrown around quite a bit.   So what is it?

In California, there a wide variety of offenses that can be charged as either felonies or misdemeanors.  These offenses are wobblers.  What sort of felonies are wobblers?  Well, too many to list here, but here are a few of the most common:

    • Domestic violence or spousal battery with injury (Penal Code 273.5)
    • Grand Theft (Penal Code 487)
    • Possession of certain controlled substances (Health and Safety Code 11377)
    • Possession of concentrated cannabis (aka hash) (Health and Safety Code 11357(a))
    • Driving Under the Influence with Injury (Vehicle Code Section 23153)
    • Sexual penetration with a foreign object where victim is a minor (Penal Code 288(h)
    • Criminal Threats (Penal Code Section 422)
    • Resisting arrest by force (Penal Code 69)

So how does the prosecutor decide whether to file a charge as a felony or a misdemeanor? It depends on the severity of the alleged conduct and the defendant’s criminal history.  For example, if  a guy with no criminal record or arrests is accused of hitting is girlfriend and it leaves a small bruise or other minor injury, that may very well be charged as a misdemeanor.  If someone with a series of arrests or prior convictions is accused of the same thing, even if the priors are unrelated to the current charge, a felony may be filed.   Along those lines, if the injury is more serious, it may be filed as a felony even if the injury is not severe.  It also largely depends on the policies of the individual prosecutor’s office.  Even within the same county, each prosecutor’s office in each courthouse has a different policy.

 The other thing to know about wobblers is that even if the case if filed as a felony, it gives your attorney some room to try and reduce the charge to a misdemeanor – either at a preliminary hearing or through negotiating with the DA.    Even if someone is convicted of a felony, if the charge is a wobbler, they may be eligible for the case to be reduced to a misdemeanor through the expungement process.
If you want to know more about wobblers, or to discuss your criminal case in general, call me for a free confidential consultation at 310-210-0744.
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Robel Phillipos False Statement Charge Could Have Been Avoided

May 1st, 2013

By now you probably heard that three more people were charged in connection with the Boston Marathon bombing.  As Huffington Post reports:

Federal prosecutors allege that Dias Kadyrbayev, 19, and Azamat Tazbayakov, 19, tried to conceal and destroy a laptop computer and backpack full of fireworks belonging to Tsarnaev, a friend from the University of Massachusetts Dartmouth, where all three were students at one time. They were charged with conspiracy to obstruct justice by the U.S. Attorney’s office in Massachusetts.

A third man, Robel Phillipos, 19, was accused of lying to law enforcement officials, who questioned him about the bombing.

According the federal complaint filed against Phillipos, he initially told investigators that he never went to alleged bomber Dzokhar Tsarnaev’s dorm room after the bombings.  He later told federal agents that he lied to them earlier and that he actually had gone to Tsarnaev’s dorm room. 

So, you may be thinking what’s the big deal?  This is a 19 year old kid who was scared, he was friends with Tsarnaev, but wasn’t involved in the planning of the bombing, didn’t know about Tsarnaev’s involvement until after the photos were released, and when the FBI started to question him about whether or not he had contact with Tsarnaev after the bombing, he got scared and lied.  After some more questioning, he told the truth.

I agree with you. Unfortunately, that’s not the way the government or the law sees it.  Under 18 USC 1001(a)(2) , Phillipos is accused of making a “materially false, fictitious, or fraudulent statement or representation” to the federal agents during questioning. It does not matter if he was under arrest or whether or not his Miranda rights were invoked, the government believes he lied.  He’s facing a maximum sentence of 8 years in federal prison.  Usually the maximum penalty for this offense is 5 years in federal prison, but because this involves a terrorism investigation, the maximum imprisonment is increased to 8 years.

What is so sad about this is that this all could have been avoidedThe feds didn’t charge Phillipos with any other crime other than lying to the FBI. That means if he had an experienced federal investigation defense attorney representing him BEFORE he talked to the FBI, all of this could have been avoided.

It’s likely that the FBI initially believed that Phillipos was involved in the destruction of the evidence, which he wasn’t  but if he wanted to give an exculpatory statement, his lawyer very well could have advised his client not to lie or possibly negotiated a limited immunity agreement with the federal prosecutor on the case.  Of course, this is easier said than done in a case as serious and high-profile as the Boston bombing case.  The federal government wants as much leverage as possible over anyone they believe to be involved with the attack, but a scared young man like Phillipos didn’t stand a chance on his own when faced with highly trained and highly skilled FBI agents in this case.

Moral of the story:  Even if you are 100% innocent, never talk to federal investigators without talking to an attorney first.

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TOP 5 QUESTIONS ABOUT DOMESTIC VIOLENCE IN CALIFORNIA

April 11th, 2013

Here’s 5 things you need to know about domestic violence in California

QUESTION #1: CAN THE “VICTIM” DROP THE CHARGES?  

ANSWER:  NO.  Bad night? Got a little drunk and things got out of control? You wanted to teach your spouse/significant other a “lesson” so you called the cops and said you got slapped around, even though it didn’t really happen?  Or maybe things got a little heated and you shoved each other during a loud argument and one of you or a neighbor called the police?  But now, after your loved one has been arrested, you want to take back the accusations and make this go away?   TOO BAD.  You see, you are no longer in control. The police refer every domestic violence arrest to the local prosecutor.  If the prosecutor thinks they have a case, they’ll file a case.

QUESTION #2:  IF I’M ACCUSED OF DOMESTIC VIOLENCE, SHOULD I TELL THE “VICTIM” NOT TO SHOW UP TO COURT?

ANSWER:  ABSOLUTELY NOT.  This is a terrible idea.  First, if there’s a criminal protective order or “no contact” order in place, you shouldn’t even be talking to the alleged victim.  So the very act of talking to him/her could result in new charges being filed against you.  Second, even if you ARE allowed to talk to the alleged victim, it is a crime to dissuade a witness from testifying.  Third, if the alleged victim has been subpoenaed to go to court, YOU should not be the one to give him/her advice as to how to handle it.

QUESTION #3:   I’M THE SO-CALLED VICTIM, THE PROSECUTOR WANTS ME TO TESTIFY, I DON’T WANT TO.  WHAT DO I DO?

ANSWER:  CALL A LAWYER.  I know you’re reading a blog post written by a lawyer, so this is the answer you’d expect, but I’m serious.  Contact a criminal defense attorney who deals with domestic violence (yes, that links are to me). There’s lots of issues here: What is the nature of your testimony going to be?  Have you been served a subpoena or are you just being hassled by a prosecutor or the police? Are you worried about incriminating yourself?  If you have a subpoena in your hand, you need to call an attorney and show him/her the subpoena and get some advice before deciding whether or not to show up at court. If the subpoena was lawfully issued, you need to show up to court.  Only a qualified lawyer can tell you if it was lawfully issued.

QUESTION #4: BUT I TOLD THE COPS NOT TO ARREST MY HUSBAND/WIFE/BOYFRIEND/GIRLFRIEND?

ANSWER:  THAT’S THEIR JOB.  If the cops get called to a domestic disturbance and there’s ANY evidence that someone laid a hand on someone else, someone is getting arrested. That is just the policy of most police departments in California.  This is why when the police showed up, they separated the two of you and asked you questions out of earshot from each other.  Even if there were no bruises or visible injuries to either of you, if one person even admits to barely touching the other person, even if self-defense, someone is going to jail.  That’s just the way it is in our post OJ Simpson world. Sorry.

QUESTION #5  THIS SUCKS!  DON’T PROSECUTORS UNDERSTAND THAT COUPLES FIGHT SOMETIMES? 

ANSWER:  YES AND NO.  Look, no politician is going to ever get re-elected by passing a law that softens up the domestic violence laws.  And to be fair, there are many serious and legitimate cases of domestic violence out there.  But just as often, there are other agendas going on:  Revenge, trying to get leverage in a divorce or child custody case, substance abuse, mental illness, jealousy.  But that’s the job of a lawyer and possibly a private investigator to figure out.  DO NOT TRY TO INVESTIGATE OR DEFEND YOUR OWN CASE. Whether you are accused of domestic violence or if police and prosecution say you’re a “victim”, you need to talk to a lawyer before making any real decision about how to proceed.

 

 

 

 

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Arrested for Shoplifting in California? Five Things You Need to Know

March 26th, 2013

If you or a loved one were arrested for grand theft, petty theft and/or commercial burglary in Los Angeles County or anywhere else in California, here’s five things  you need to know:

1)Remember when they told you to “Just Admit Everything And You Wouldn’t Be Charged?”  That Was a Lie.  Yeah, sorry.  That loss prevention officer who took you into that little room and told you that if you just told the truth that nothing bad would happen to you?  Lies.  All lies.  You may have figured this out by now, but that confession you made to the store detective or that you wrote out is going to be used against you.

2) Be wary of an attorney who promises you a “civil compromise” to prevent prosecution.  Technically speaking, if you are charged with a misdemeanor petty theft case, a civil compromise is available under Penal Code 1377.  In a civil compromise, the defendant negotiates a settlement with the store and the case gets dismissed.  But I’m telling you right now, if you stole from a big chain store or a store that is owned by a bigger corporation, the odds of getting a civil compromise are very low.  If a defense lawyer tells you that he/she will “get you a civil compromise” ask them to do the following:  1) Put the guarantee in writing in their retainer agreement; 2) Give you the last three cases (with case numbers) where they obtained a civil compromise from a big chain store.    Watch what happens.

3)  Do NOT pay the letter from a civil law firm demanding money until you talk to a lawyer.   You’re going to get a letter from a law firm, probably from Florida with a local office in California, making a “civil demand” for damages.  This letter will tell you to pay a few hundred bucks by a certain date under the threat of a higher payment.  Do not pay.  It has nothing to do with your criminal case.  Paying it will not make your criminal case go away.  This letter is a shakedown to get more money out of you.  They’re banking on the fact that you are scared and vulnerable.  Your lawyer can explain it to you in detail.  But do not panic and just pay what they’re asking.  You’re throwing money away.

4)  Get Honest With Yourself.  Do you have a problem with stealing?  Do you steal items you don’t really need. Do you steal even though you may be able to afford it?  Are you worried that you’re addicted to the thrill of it? Is there another underlying issue?  I know it is embarrassing and tough to admit, but  you MUST get some help to get this under control.  Why do you need help?  Because you can’t control this on your own.  You’ve now been arrested for it (maybe more than once). In California, petty theft (shoplifitng) is what’s known as a “priorable” offense.  This means the punishment will increase every time you get caught.  The third time you get caught, you could be charged with a felony. Also, if you get out in front of this and get into counseling to deal with the issue, an experienced criminal defense attorney should be able to use this to help your case.

5) Even If You Were Caught and You Confessed, You Still May Have A Defense.  Look, I get it.  You were caught with the clothes in the bag or you confessed you changed price tags or whatever.  Plus you confessed.  Plus they say they have you on video.  Whatever the case may be, DO NOT just go to court and plead guilty.  Every courthouse deals with these cases differently.  I’m a Los Angeles criminal defense attorney.  I can tell you that the way these cases are handled in Beverly Hills courthouse is different than Airport courthouse which is different than downtown or Van Nuys.  It depends whether the District Attorney is prosecuting the case or the City Attorney is prosecuting the case.  It depends on the exact facts of the case. It depends on the specific circumstances of your life.  It depends on a LOT of things. Did you take not much more than $50 worth of stuff?  If so, you may be able to negotiate this down to an infraction.   Bottom line:  Call a qualified criminal defense lawyer to at talk about your case.  A good lawyer will be honest with you, give you a real assessment about your case and won’t just try to “close the deal” to get your money.

And hey, if you want to talk to me. You can always give me a call at 310-210-0744. I’m happy to talk to you at no charge.

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Three Things You Can Learn From Peter Murhpy’s DUI Arrest

March 20th, 2013

By now anyone who is (or was) a fan of the 1980s British music scene knows that Bauhaus frontman and goth godfather Peter Murphy was arrested for hit & run DUI in Los Angeles County on Saturday.  Judging from the reaction in the social media universe, fans were more disturbed by the fact that ‘ol Mr. Moonlight was driving a Subaru Forester than they were by the fact that he was arrested.  I get it.

But there are some interesting things to learn here based on the way the story developed.

Lesson #1:  The charges you are arrested for are different from the charges filed against you.  Here’s how it works:  If you get arrested, the police agency who arrested you and set a bail.  The initial amount of bail is determined by a “bail schedule” which varies from county to county.  If the police think you’re a flight risk, the bail will be set higher.  The police also write a report.  They then give this report to a local prosecutor. The local prosecutor makes the ultimate decision as to which charges to file.

In Peter Murphy’s case, he was arrested on suspicion felony DUI, hit and run, and possession of methamphetamine. Because he is not a US citizen and lives in Turkey, the police thought he was a flight risk. So they set bail at $500K.

Once the Los Angeles County District Attorney’s Office took a look at the report, they didn’t think the facts warranted a felony.   All the charges Murphy was arrested on are what’s known as “wobblers”, which are offenses that can be filed as felonies or misdemeanors.  The DA decided that the  evidence presented did not rise to the level of a felony, so they filed misdemeanor charges instead and his lawyers were able to convince the judge to let him out without posting any bail at all.

Lesson #2:  In California, if the defendant has hired an attorney, he or she is not required to appear in court for misdemeanors:  This is why Peter Murphy can go on tour while the case against him is pending.  As long as he is in contact with his lawyer and following whatever instructions the court gave to him, he will be

Lesson #3:  Less Is More With Press.  Peter Murphy’s lawyer did an excellent job of handling the publicity on the case. According to the LA Times article, his lawyer declined to comment on the case, but reassured everyone that Peter will be able to go on tour and the case will be handled.  He summed it all up with one simple line:  “We are going to take care of business.”  Good stuff.  It’s about the client, not the lawyer and Peter’s lawyer understands this.  Peter Murphy is obviously not a Lindsay Lohan sized celebrity, but ain’t it refreshing to see a hard working lawyer doing the right thing for his client and not preening for the press?  Bonus pro move:  Attorney kept Peter in the lockup in the back of the courthouse and appeared in court on his behalf so his client wouldn’t have to deal with his fans sitting in the courtroom gallery.

Wishing all the best for Peter Murphy.

 

 

 

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Proposition 36 Gives Inmates Serving Life In Prison A Chance At Reducing Their Sentence

November 8th, 2012

On Tuesday November 6, 2012, almost 70% of California voters supported Proposition 36, which changes how California administers it’s three strikes law.  Under that law, a person convicted of three felonies is sentenced to life in prison.  Proposition 36 changes that process with the respect to the third strike.  Specifically, California law now requires the third strike to be a serious or violent felony in order to trigger the life sentence.

The most immediate impact of the new law is to give an estimated 2,800 inmates who are serving a life sentence a chance to petition a judge to have their sentence reduced.  The right to seek a reduced sentence is limited to those inmates whose third strike was not a serious or violent felony.  In other words, if you or someone you know is serving a life sentence under the old version of the three strikes law, and their third conviction was NOT for a violent or serious felony, they have a right to ask a judge to reduce their sentence.  The technical name of the request that is filed with the court is a “petition for recall of sentence.”

Proposition 36 includes an important deadline.  For inmates who are currently serving life sentences because of the old version of the three strikes law, the petition to “recall a sentence” must be filed on or before November 7, 2014. That’s two years from the date Proposition 36 went into effect.

What’s A Serious or Violent Felony?

California law includes two somewhat overlapping lists of felonies.  Section 1192.7 of the Penal Code lists 42 crimes that are defined to be “Serious Felonies.”  Section 667.5 of the Penal Code includes 23 crimes that are defined to be” Violent Felonies.”

For the purposes of Proposition 36, an inmate serving a life sentence under the three strikes law may seek a reduction of their sentence only if their third strike DID NOT involve a conviction for any of the following crimes.

Serious Felonies

(1) Murder or voluntary manslaughter;

(2) mayhem;

(3) rape;

(4) sodomy by force, violence, duress, menace, threat of great bodily injury, or fear of immediate and unlawful bodily injury on the victim or another person;

(5) oral copulation by force, violence, duress, menace, threat of great bodily injury, or fear of immediate and

unlawful bodily injury on the victim or another person;

(6) lewd or lascivious act on a child under 14 years of age;

(7) any felony punishable by death or imprisonment in the state prison for life;

(8) any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice, or any felony in

which the defendant personally uses a firearm;

(9) attempted murder;

(10) assault with intent to commit rape or robbery;

(11) assault with a deadly weapon or instrument on a peace officer;

(12) assault by a life prisoner on a non-inmate;

(13) assault with a deadly weapon by an inmate;

(14) arson;

(15) exploding a destructive device or any explosive with intent to injure;

(16) exploding a destructive device or any explosive causing bodily injury, great bodily injury, or mayhem;

(17) exploding a destructive device or any explosive with intent to murder;

(18) any burglary of the first degree;

(19) robbery or bank robbery;

(20) kidnapping;

(21) holding of a hostage by a person confined in a state prison;

(22) attempt to commit a felony punishable by death or imprisonment in the state prison for life;

(23) any felony in which the defendant personally used a dangerous or deadly weapon;

(24) selling, furnishing, administering, giving, or offering to sell, furnish, administer, or give to a minor any heroin, cocaine, phencyclidine (PCP), or any methamphetamine-related drug, as described in paragraph (2) of subdivision (d) of Section 11055 of the Health and Safety Code, or any of the precursors of methamphetamines, as described in subparagraph (A) of paragraph (1)of subdivision (f) of Section 11055 or subdivision (a) of Section 11100 of the Health and Safety Code;

(25) any violation of subdivision (a) of Section 289 where the act is accomplished against the victim’s will by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person;

(26) grand theft involving a firearm;

(27) carjacking;

(28) any felony offense, which would also constitute a felony violation of Section 186.22;

(29) assault with the intent to commit mayhem, rape, sodomy, or oral copulation, in violation of Section 220;

(30) throwing acid or flammable substances, in violation of Section 244;

(31) assault with a deadly weapon, firearm, machine gun, assault weapon, or semiautomatic firearm or assault on a peace officer or firefighter, in violation of Section 245;

(32) assault with a deadly weapon against a public transit employee, custodial officer, or school employee, in violation of Section 245.2, 245.3, or 245.5;

(33) discharge of a firearm at an inhabited dwelling, vehicle, or aircraft, in violation of Section 246;

(34) commission of rape or sexual penetration in concert with another person, in violation of Section 264.1;

(35) continuous sexual abuse of a child, in violation of Section 288.5;

(36) shooting from a vehicle, in violation of subdivision (c) or (d) of Section 26100;

(37) intimidation of victims or witnesses, in violation of Section 136.1;

(38) criminal threats, in violation of Section 422;

(39) any attempt to commit a crime listed in this subdivision other than an assault;

(40) any violation of Section 12022.53;

(41) a violation of subdivision (b) or (c) of Section 11418;

(42) any conspiracy to commit an offense described in this subdivision.

 

Violent Felonies

(c) For the purpose of this section, “violent felony” shall mean any of the following:

(1) Murder or voluntary manslaughter.

(2) Mayhem.

(3) Rape as defined in paragraph (2) or (6) of subdivision (a) of Section 261 or paragraph (1) or (4) of subdivision (a) of Section 262.

(4) Sodomy as defined in subdivision (c) or (d) of Section 286.

(5) Oral copulation as defined in subdivision (c) or (d) of Section 288a.

(6) Lewd or lascivious act as defined in subdivision (a) or (b) of Section 288.

(7) Any felony punishable by death or imprisonment in the state prison for life.

(8) Any felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in Section 12022.7, 12022.8, or 12022.9 on or after July 1, 1977, or as specified prior to July 1, 1977, in Sections 213, 264, and 461, or any felony in which the defendant uses a firearm which use has been charged and proved as provided in subdivision (a) of Section 12022.3, or Section 12022.5 or 12022.55.

(9) Any robbery.

(10) Arson, in violation of subdivision (a) or (b) of Section 451.

(11) Sexual penetration as defined in subdivision (a) or (j) of Section 289.

(12) Attempted murder.

(13) A violation of Section 12308, 12309, or 12310.

(14) Kidnapping.

(15) Assault with the intent to commit a specified felony, in violation of Section 220.

(16) Continuous sexual abuse of a child, in violation of Section 288.5.

(17) Carjacking, as defined in subdivision (a) of Section 215.

(18) Rape, spousal rape, or sexual penetration, in concert, in violation of Section 264.1.

(19) Extortion, as defined in Section 518, which would constitute a felony violation of Section 186.22 of the Penal Code.

(20) Threats to victims or witnesses, as defined in Section 136.1, which would constitute a felony violation of Section 186.22 of the Penal Code.

(21) Any burglary of the first degree, as defined in subdivision (a) of Section 460, wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary.

(22) Any violation of Section 12022.53.

(23) A violation of subdivision (b) or (c) of Section 11418.

Thus, if the third strike conviction was for a crime that is not on the list above, a petition can be filed to reduce the life sentence.

 

What Happens After a Petition for a Reduced Sentence is Filed?

Proposition 36 gives judges discretion whether to reduce a life sentence. It is not automatic.  Judges are supposed to look at three factors to determine whether the life sentence should be reduced: (1) The inmate’s criminal conviction history, including the extent of injury to victims, and how long ago the crimes took place; (2) The inmate’s disciplinary record and record of rehabilitation while in prison; and (3) Any other evidence the judge thinks is relevant  to determining whether a lower sentence would result in an unreasonable risk of public safety.

At this stage, it is hard to predict how judges will apply these factors.  Proposition 36, however, makes clear that an inmate cannot get a higher sentence as a result of filing a petition.  As a criminal defense lawyer in Los Angeles, I know that any inmate who thinks that they may be able to benefit from seeking a reduction of a life sentence under California’s three strikes law should contact an experience criminal defense lawyer to determine whether the changes made by Proposition 36 apply to them.

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