IT'S NOT THE LAW, IT'S THE JUDGE

Recently i handled a suppression motion in a San Gabriel Valley court.  [can't reveal the name of the judge if i want to continue to practice law in this county:)]  The basis of the motion was that the client was sitting in his car on a public street in the middle of the day, minding his own business.  A deputy sheriff drove down the street because there was supposedly illegal activities going on from time to time at the house in front of which the client was parked.  When the deputy drove by the client supposedly looked surprised, then slouched down in his car altho still in view.  The deputy and his partner contacted the client, asked for a driver's license, and asked what he was doing there.  Supposedly he said he was waiting for a friend, but couldn't name the friend or where the friend lived.  Client was then ordered out of the car, and was placed in the police vehicle.  He was subsequently asked if the deputy could retrieve his registration from the car, and supposedly he said yes.  The deputy found contraband in the glove box while looking for the registration.

i objected to the search on the grounds that the police had no right to take the client out of his car and place him in the police vehicle.  He had not committed any crime at that point, so the detention in the police vehicle was illegal.  The judge ruled that it was legal to put him in the police car, and the retrieval of his registration was therefor also legal, and denied the suppression motion.

I have a very good friend who is a judge in Los Angeles who hears suppression motions all the time.  When I explained the fact pattern i have just described, my friend the judge said without a doubt he would have ruled that placing the client in the police car was an unlawful detention, and anything that happened thereafter was illegal.  He would have granted the suppression motion.

MORAL:  It's not the law that matters, it's the judge who hears the case that matters.  Forget law school...make friends with as many judges as possible.

Certificates of Rehabilitation

California law permits individuals who have been convicted of felonies, no matter how serious, to obtain a Certificate of Rehabilitation subsequent to being released from probation or prison as long as they have been crime-free for the required period of time.  Formerly the required period was five years.  However, under the newly enacted Penal Code 4852.22 the waiting period has been changed to allow a trial court hearing the request to grant a Certificate of Rehabilitation prior to the five year period "in the interests of justice". Obviously a very strong showing must be made to convince a trial judge to truncate the waiting period.

There are a number of reasons for obtaining a Certificate of Rehabilitation.  One important reason is that a pardon from the Governor of California can only be obtained when a Certificate has been granted. Additionally, the Certificate reinstates all civil and political rights that are suspended when an individual has been convicted of a felony, such as voting rights or the ability to obtain a business or professional license. But please note that the Certificate does not reinstate the right to possess a firearm or in most instances to avoid the registration requirements for sex offenders.

As might be expected, obtaining a Certificate of Rehabilitation is best accomplished with the assistance of an experienced criminal defense lawyer.

Marijuana Dispensaries

 Operating a marijuana dispensary is all the rage these days.  However, a marijuana dispensary is not running a normal retail outlet.  First of all, getting the product involves a difficult legal problem.  Once you have a source of marijuana, you have to get it to the store.  It is illegal to transport marijuana in California, especially significant quantities which are necessary to maintain reasonable inventory.  So if you order some pot and the person bring it to the store gets stopped, searched, and arrested, he cannot claim the defense that he was delivering the marijuana to a dispensary.  So unless you are growing pot in the back room of the shop [not a bad idea, incidentally], getting inventory is not so simple as calling fedex.

The next problem, which was featured in the Los Angeles Times recently, is what to do with the cash generated from the pot sales.  Banks are very reluctant to accept cash deposits from marijuana dispensaries, since they are concerned about money laundering statutes and other potential criminal liability.  Obviously the owner of the shop could employ an intermediary to make deposits under the name of a legal business, but the intermediary would also run the risk of money laundering charges.  Presumably a small operation would not be very vulnerable to prosecution, but if your business is successful the feds might take a look at your operation and potentially seek prosecution for money laundering.  So the more money you make the more exposure you would have...not a very nice way to do business.  But the rewards from operating a marijuana dispensary are quite significant these days, so the problems involved might very well be worth it. 

Mortgage Fraud

As a result of the recession of 2008, there has been a tremendous upswing in prosecutions ofr mortgage fraud.  Millions of homeowners found their equity in their home reduced to a substantial negative amount, causing the banking industry to initiate millions of foreclosures.  A cottage industry sprang up where lawyers, accountants, and numerous unscrupulous entrepeneurs offered their services to assist the homeowners avoid foreclosure.  Some of the mortgage "experts" were legitimate, but many others were scamming the desperate homeowners.  Often these "experts" would use fraudulent documents to convince the homeowners to pay substantial fees to help avoid foreclosure, or in many cases they would induce the homeowners to sign grant deeds which they would then record, make a settlement with the financial institution, and then take ownership of the property.   Other scams were also utilized, limited only by the creative criminal minds of the "experts".

sometimes innocent people would also attempt to ameliorate the drastic legal consequences of foreclosure, but make some negligent mistake in preparing the complex documents involved in these procedures.  Mortgage fraud prosecutions are very sexy for prosecuting agencies, and it is not uncommon for such innocent people to end up victims of the criminal justice system.  Any individual who suffers such injustice should definitely hire an experienced lawyer to fight a mortgage fraud prosecution.

COLLATERAL CONSEQUENCES

When pleading guilty to a criminal charge, there are various obvious consequences that will flow from such a guilty plea.  Prison, jail time with probation, loss of various civil rights, etc.  If the defendant is not a citizen, he may face serious deportation issues as well.  But there are also collateral consequences that are not so obvious, and are never mentioned in court when a defendant pleads guilty.  I am talking about serious consequences that might result for a defendant who has a profession which is licensed by the state.  For example, if a lawyer or doctor pleads guilty to a crime involving moral turpitude, the defendant might have his professional license suspended or even revoked, depending on the seriousness of the offense.

I recently represented a client before an administrative judge who pled guilty to petty theft, paid a fine, and received a three year unsupervised probation.  Just about as minimal offense as there is, but because it involved a theft it is defined as a crime of moral turpitude.  The client was a car salesman, and as such had to be licensed by the California Dept. of Motor Vehicles.  Incredibly, his license to work was suspended by the DMV once the agency received notice of the conviction, and he has not been able to work for months since the suspension.  A hearing was set before an administrative judge last month to determine when, if ever, he will get his license back.  The deputy Attorney General representing the DMV was extremely aggressive in trying to convince the judge that the client should not be allowed to recover his license.  It was like something out of a Charles Dickens novel...the crime the defendant committed has nothing to do with being a car salesman.  The client is married and has an a two year old daughter with cerebral palsy; his wife can't work because she has an abdominal hernia and also has to take care of her daughter.  Right now the client is living off the kindness of relatives, and who knows when, if ever, he will be allowed to work in this states as his chosen profession.  The deputy A.G.'s recommendation was that the client should move to Arizona where there are no licensing requirements for car salesmen!

This kind of insane government regulation is enough to make any sentient being join the Tea Party.  I'm sure if the client's trial lawyer had realized the severity of the collateral consequence resulting from the client's guilty plea another more humane disposition might well have been achieved.  The moral of the story?...make sure before pleading guilty in a criminal case that you are aware of all possible collateral consequences which might result from the guilty plea and which might very well ruin the rest of your life, even if there is no jail time involved in the conviction.  

YOU CAN'T TRUST THE GOVERNMENT

I have been representing a restaurant in Hancock Park, Los Angeles, called The Bungalow, which is being prosecuted by the City of Los Angeles for operating with tables and chairs in violation of some crazy zoning regulation.  The prosecutor has agreed to dismiss the case if the City will grant a variance so that the restaurant, which is extremely successful, employing over 30 people and paying lots of taxes to the City, can continue to operate with tables and chairs.

Unfortunately, the City  keeps changing the rules on the process for obtaining the variance.  The owner spent thousands of dollars and hundreds of man hours following the procedure required by the City...suddenly, with no explanation, the City changed the requirements and now the owner must pay many more thousands of dollars and expend many more hours to comply with the new requirements.  Meanwhile, the City, which has agreed to numerous continuances of the criminal case in order for the owner to obtain his variance, now is insisting on going to trial, even though the owner has done everything humanly possible to comply with the requirements for obtaining a permit to operate with tables and chairs.  As i said, you cannot trust Government to behave rationally.  Closing this restaurant would be a disaster for everybody, including its customers.  Over 3500 neighbors have signed a petition to keep the restaurant operating!

DISMISSING PHONY CRIMINAL CASES

Recently I represented a young woman charged with grand theft who was innocent.  She was renting a house in Malibu, California, when problems developed with the mortgage holder, causing her to be concerned about her rent payments. Eventually she moved, and the owner of the property went to the police and claimed that she had stolen various items from the house.  The owner never followed the requirements of California law regarding a walk-through of the property when a tenant leaves.  The police, of course, in their usual disregard of proper protocol, arrested the client and she was charged by the District Attorney with stealing thousands of dollars of property from the house.  The owner even testified at preliminary hearing as to numerous items that were removed.

I was hired at the trial level.  Amazingly, the property owner listed her house for sale, and an investigator went to an open house and took pictures of various items of furniture which the owner had previously claimed were stolen!  The D.A. handling the case was shown the photos.  Incredibly, at first he did not want to dismiss the case, even though it was obvious that his "victim" was a liar.  He said the client could still have possessed other items claimed to be stolen.  It took several more court appearances to convince the prosecutor that he had no chance to win his case, and finally he dismissed all charges.  What is fascinating about this case is how reluctant the prosecutor was to dismiss even though it was clear that his "victim" was a liar.  In Los Angeles at least prosecutors are brainwashed not to dismiss cases even against innocent defendants!